Most people don’t realize that there are time limits within which you must file your legal claims, or they could be forever barred by what is called the statute of limitations. Generally, the statute of limitations differs depending on what kind of claims you are asserting. For example, for negligence claims in Massachusetts, with a few exceptions, you must file your lawsuit within three years of when you knew or should have known of your injury. If you miss the filing deadline that governs your claims, you may never be able to recover any money, even if liability is clear and you have significant damages. The statute of limitations is harsh and generally unforgiving. Therefore, it is critical that you consult with an attorney to determine whether you have a case and the time by which you need to file any lawsuit by.
You may also have heard from family members and friends who say that they negotiated with the insurance company directly and “saved an attorney fee.” While undoubtedly some people do negotiate with insurance companies directly, this is almost always a bad idea for the injured person. Insurance companies have large numbers of in-house adjusters and attorneys who are experienced in dealing with personal injury cases. But the defense attorneys and adjusters represent the interests of the insurance companies, not the injured person. The fact of the matter is that if you negotiate with an insurance company directly, they will take advantage of the fact that you are not represented by an experienced personal injury attorney who can assert and protect your rights. You can almost guarantee that any settlement negotiated with an insurance company by an unrepresented person will result in an inadequate and deficient recovery for the injured person. An injured person should always have experienced counsel to represent their interests, protect their rights, and maximize their recovery.
You may be wondering if you can afford to hire a lawyer for your personal injury claim. The short answer is “yes.” If I decide to represent you, your case will be governed by a written contingency fee agreement. A contingency fee means that I only recover an attorney’s fee if I recover compensation for you. If there is no monetary compensation recovery, then there is no fee. That means that you will not have to pay any attorney’s fees, expenses, or costs before or during litigation. This allows injured individuals, who might not have the resources to pay for an attorney and the related costs, to pursue meritorious claims they might not otherwise be able to afford. The amount of the fee is governed by the terms of the written contingency fee agreement, and can vary according to the type of claim, and whether the case is resolved before a lawsuit is filed, during the lawsuit, or after a verdict in favor of the plaintiff. Massachusetts law requires that the attorney’s fee and repayment of expenses and costs are agreed upon by the client and the attorney in a written agreement, signed by both the client and the law firm.
During the life of the case various expenses and costs must be paid. If I decide to take your case, I front all the legal costs and expenses related to the litigation. Those costs and expenses are then deducted from the client’s recovery at the end of the case. If the client does not recover, the client pays nothing. Costs and expenses can differ from case to case, but generally include, but are not limited to the following:
- Court Filing Fees
- Medical Records Collection
- Police and EMS Reports Collection
- Subpoena Service and Witness Fees
- Court Reporter Costs
- Transcript Costs
- Investigator Costs
- Experts Witness Fees
- Printing Costs
- Postage costs
- Mediator Costs
- Trial Exhibits
In Massachusetts, an injured person can recover both economic and non-economic damages. Economic damages are generally defined as measurable, objectively verifiable losses. Examples of economic damages might include hospital and doctors’ bills, physical therapy bills, lost wages and benefits, future earnings impairment, property damage, and funeral expenses. Non-economic damages are subjective, non-monetary losses. Examples of non-economic damages include pain and suffering, disfigurement, scarring, emotional distress, loss of consortium or companionship, disability, mental anguish, and loss of enjoyment of life. Punitive damages are not generally available in personal injury cases in Massachusetts, except in wrongful death cases. To recover punitive damages, the plaintiff must prove that the individual or corporate defendant engaged in gross negligence or willful or wanton conduct that resulted in a death.
This is usually not a question that can be answered early in the case. If a lawsuit is filed, the case enters a process called “fact discovery” where relevant documents concerning liability and damages are exchanged between the parties. Depositions of parties and fact witness are also usually taken. Medical records are collected, and subpoenas may be issued to non-party entities. It is important that an injured plaintiff must have reached a “medical end result” to properly assess damages. That simply means that the injured person has reached a substantial plateau in the medical recovery process, such that significant further improvement is not expected, regardless of treatment. At that point the current and future effects of the injury on the person’s life can be properly assessed. Other factors that can affect damages are the type of injury, the permanency of the injury, the length of disability period if any, any amounts of lost wages, future earnings impairment, medical bills, scarring, loss of bodily function or use, pain and suffering, and claims for loss of consortium. Every case is different and has different damages elements to it. Beware of any attorney who claims they can put a dollar amount on your case right out of the gate.
Sometimes a personal injury claim can be settled with the responsible party before the filing of a lawsuit. However, it still takes some time to collect all the necessary documentation, such as medical records. Personal injury claims which require the filing of a lawsuit can take a long time to work their way through the court system. Depending on the type of case, a state court case could take anything from three to four years. Federal court cases generally move faster but can still take two to three years. With the suspension of trials due to Covid-19, the court system is going to be backed up and these delays could be longer. Nevertheless, trials have commenced again in Massachusetts and the judicial system is getting back on track.