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A default Judgment occurs when a party fails to answer a lawsuit, or fails to appear at a hearing. There are steps that can be taken immediately after a default judgment is granted to seek a new trial or to undo the judgment. IF YOU HAVE HAD A DEFAULT JUDGMENT GRANTED AGAINST YOU, CALL AN ATTORNEY NOW! The procedures are very technical.

Default judgments can occur in any type of civil case. This counts for injury cases and divorces.

A default judgment is much like a forfeit in a sporting event. A default judgment presumes all parties are aware of the event, but that one party does not show up. The court (like a referee) declares the party who showed up the winner. In many default judgments, the party who shows up can get almost anything they have asked for granted to them.

There are requirements before a court can grant a default judgment. The court must be convinced that the other party was aware of the case and the hearing. Depending where you are in the process, this can mean that you can show good service of a petition (the document that starts the lawsuit) on the defendant and the passage of the required time to answer. If there was an answer, you have to be able to prove to the court the other side had actual notice of the hearing (such as a returned, signed green card on a certified letter. the notice had to be received by the other party before the deadline required for giving notice of that type of hearing. State and local rules may apply to what time period is required on certain types of hearings.

If you can show the court that the other person actually knew of the court date, that the other side had the required amount of time or more to respond or appear, and if your court papers are in proper form, the judge can enter a default judgment in your favor. For the judge to do this, you usually need to have an order pre-prepared for the hearing with what you are seeking out of the hearing stated in the order. If you are seeking matters not originally plead for in the previous filings, the court may not grant what you seek (after all, that would mean the judge was granting matters the other side wouldn't be aware of since you had never filed that with the court or the other side before).

Just because you get a default judgment doesn't mean the case is over. Once the required amount of time has passed, if the other side has done nothing about the judgment, then the default judgment is final. A final judgment from a default order is just as enforceable as any other order.

A common misconception is that you pick a jury. You don't really.

What you do is get a random collection of people in a room. Then you figure out who you DO NOT WANT on the jury. If you have a justified reason, you can disqualify a potential juror. It might be because they know one side or the other personally, they may have experiences like what the parties have been through, or you just might not like them. You don't get to dump all of them. You only have a limited number you can try to get rid of.

The whole time you are getting rid of the people you don't want, the other side is doing the same thing. The problem is, anyone you really liked, they don't. So they will likely dump everyone you really wanted to keep. The end result, you get the first six or twelve (depending on the court you are in) jurors who nobody cared enough to get rid of.

These jurors likely didn't want to be there in the first place, they don't really have any similar experiences to draw on, and they just want to go home. That's right! Your case is going to be decided by a group of strangers who don't know anything about you, your case, and really don't care either way.

Now, I don't want to knock jurors. Something magical does happen after a jury is sworn in. They always rise to the challenge. They really do care about doing the right thing. They take their task seriously. Rarely do I find myself at odds with a jury's decisions. Jurors are a special group of people tasked with an unusual job, and they do marvelously at it.

But for my clients, the reality of how you pick a jury is always an eye opener. I warn them of the process long before we ever file suit. Everyone wants to tell their story to the jury. Everyone is convinced they could swing a jury to see their point of view. In part, this is because everyone thinks the jury will be made up of people just like them. It isn't very likely given the system. I tell my clients to go to a Wal-Mart (a place almost everyone shops) and look at the first twelve people to walk in the door behind them. That random group is just as likely to be the jury as any other group of twelve. Some will be barely adults, others will be advanced seniors. Some will be from almost every conceivable ethnicity. There will be executives, office workers, blue-collar workers, lawyers, doctors, teachers, sanitation workers...

After you look at the first twelve, consider what you think they would think of you, your story, the other side, and what is fair and reasonable. Young people are usually more liberal than older people, but young people think $1,000.00 is a lot of money, while a mother of three might think $1,000.00 is a month's groceries or less. Some may have been or known a drunk driver, they might be more or less sympathetic if there was a drunk defendant in the case. If you are upset that the person that hurt you was on their cell phone when the accident happened, odds are every person you looked at does the same thing. If you thought that car shouldn't have pushed the yellow light as it went red, odds are again several of that twelve do it every day.

As much as we all think our story is undeniable, and our claim a no-brainer, odds are somebody out there will see it all very differently.

What is my case worth? I hear it all the time. I hear it from people who have cases near the end of negotiations. I hear it from people as soon as they have an accident. I even hear it from people just making up imagined "what if" stories of accidents that never happened.

What is your case worth?
Honest answer?

Nobody knows. Honestly, there is no way to know what a particular case case is worth. Every case is very different from the next. There are far too many variables to be positive what any one case is worth. Attorneys can know what their average cases earn, but if you ask them what an "average case" is the definition varies wildly. The honest answer drives people crazy. It drives them crazy because they are usually looking for a way to either plan for money they hope to receive, or they want guidance as to what to ask for to close their case without an attorney.

The people asking because they don't want to hire an attorney think lawyers keep case value a secret. These people think that the lawyers keep the secret so that they can earn business. It isn't true. If you call a lawyer to ask what your case is worth, it isn't the same as bringing a lump of gold to a jeweler and asking what it is worth. Jewels are a commodity, there are indexes showing what the value of a pound of gold is worth at any given time. There is no such index for injuries. An eighty year old retired man with a broken foot will have an entirely different value for his case than say a twenty-four year old rising football star. The person rear-ended by a cell phone wielding distracted driver will have an entirely different case than a person struck by a drunk driver. The family of a deceased father hit by an uninsured driver has an entirely different case than the family of a father killed by a negligent cement truck. Even if you try to compare two nearly identical rear-end collisions at stop lights, with essentially the same amount of property damage and similar injuries, the end results could vary by several thousand dollars.

When lawyers try to predict their internal receivables, they usually guess low. They use a number based on the historical average for every case they have ever signed. That way they can count the number of cases on the books, multiply it by this average, and get a guess at what they think they could earn on every case in their docket. In reality, the individual results bounce above and below the average. But, if you smooth out the numbers over a long period of time, there is a guess they can use. That guess has nothing to do with the value of each case.

What is that number? Why don't you tell us?

That number isn't the total offered. That number is only the attorney's fees. That number is artificially low too, so that attorneys don't oversell their potential and get disappointed if the numbers don't work. Most importantly, since that number is based on an average and not the particular facts of any given case, if you hear that number and use it on your case the attorney could be liable for malpractice in giving you bad advice.

If you don't know what a case is worth, how do you ever settle them?

At some point the insurance company for the defendant is unwilling to offer more. At that point you can look at the number offered, subtract expenses, medical bills and such, and determine the outcome. If the outcome is substantially less than what you think a jury would pay on your worst day (after expenses of litigation), then it makes sense to go to trial. If the offer is equal to your worst day at trial, you still have little to risk. If the offer is better than your worst day at trial, then you risk losing money in litigation.

That begs the question, how do you know what the case is worth at trial?

We still don't "know" what a case is worth at trial. We can only make guesses based on experience, the Blue Sheets(a list of settlements and verdicts used for statistical purposes) and the facts of the case. The guess is just that, and educated guess. Without having worked the case for some time, being advised not only of all the facts in your favor and the facts against you, as well as the area where your case will be heard, that guess cannot be accurately made.

Fine then, what are all these "factors", so I can decide for myself?
The time of the day
The weather
The types of cars
The amount of property damage
The driving record of all the parties
The age of the parties
If any party was on medication, drugs or alcohol
Cell phone usage
How the accident occurred
Where the accident occurred
The traffic controls at the scene
The position of the sun, trees, or lighting
The injury history of the parties
What each driver was doing at the time of the accident
The insurance companies involved
The amount of and types of coverage available
The number of injured people
Pre-existing injuries, if any
The treatment history of the parties
The doctors seen
The length of treatment
The consistency and frequency of treatment
How soon treatment started
The types of treatment
The types of diagnostic tests
The results of diagnostic tests
The medical records
The cost of the care received
If there was or was not health insurance
Medicare, Medicaid, county care or other liens
And much, much more....

Stop being evasive, what is my case worth? Just tell me

What's your case worth? Honestly, I don't know. All I know is your case is worth every single cent I can get out of the other side, whether in settlement or through trial.

For more information, visit the main site at:
http://shtxlaw.com/autoaccidents.php
http://shtxlaw.com/sourcesofrecovery.php
http://shtxlaw.com/typesofinjuries.php
http://shtxlaw.com/motorcycleaccidents.php
http://shtxlaw.com/needlawyer.php
http://shtxlaw.com/insurancecompanies.php

Most types of cases go through a period of negotiations. Negotiation can occur before litigation has ever started (this is the norm for injury cases). Certain types of cases only have negotiations after the suit is filed (such as divorce). Litigation is that period after an original petition has been filed in a court.

When a person files their original petition, the Texas Rules of Civil Procedure become the framework of rules and deadlines that govern what happens in the case from that point on. Because I have to be careful, the rest of this article is not meant as a course in civil procedure. What follows is a general overview of the typical process. Every case will vary. There are many special exceptions and situations that can arise. DO NOT TAKE THE INFORMATION THAT FOLLOWS AS THE GOSPEL ON LITIGATION. What follows is just to give you a feel of what to expect.

The first notable consideration of litigation is the length of the process. The other side of the litigation does not have to do anything till they are served with a copy of the petition or sign a waiver of service. Once served, the other side has basically twenty days to file an answer (more specifically the first Monday after twenty days). The answer they file may be a very specific response, but usually is what we call a general denial. The general denial simply says "prove it" to the person who filed it. For purposes of tracking the time it takes to litigate a case, let's just say this was a thirty day (one month) period.

The next step in most litigation is the discovery process. The first step in discovery is usually done on paper as a series of questions to be answered under oath. When a party receives a set of discovery questions, they usually have thirty days to prepare their responses. The paper responses therefor add at least another month to the process.

Depending on the strategy used by your attorney, depositions may follow the paper discovery questions. Scheduling depositions takes some time, and depending how many witnesses are to be deposed can take even longer. Your attorney will likely want to wait till they have the written responses to the paper discovery before they do any depositions, as the paper questions often need clarification or create new questions. In general, you can expect the deposition period to take at least another month. For tracking purposes, it has been a minimum of three months now since the original petition has been filed.

It takes some time for a court reporter to transcribe the oral depositions into a paper format. Once received, the attorney will often review the depositions to see if there are more questions that need to be answered in a second set of paper discovery. If a second set is issued the other side get thirty days to respond to the second set of paper questions.

Once all parties have finished their discovery, the case is essentially ready for trial. There may be other documents or research necessary through third party experts in some cases. If so, there will be a delay as those matters are finalized.

In most jurisdictions the courts require the parties to attend mediation before they go to trial. Mediation is a process where a neutral third party tries to get the parties to negotiate an agreement to resolve their differences. Detail about mediation are likely best covered in another topic. Suffice it to say the mediation process will add likely another month to the process. In many cases at least four to six months since the lawsuit was filed when mediation ends. If the parties do not reach an agreement at mediation, an actual trial is the last step.

Although the parties may be completely ready for trial at this point, the court has to find a place in their calendar (docket) for the trial. The civil courts in Texas are very full. In some jurisdictions (such as Tarrant, Dallas and Denton Counties) the courts typically cannot set the case for at least 18 months after the original petition is filed. Some courts can get them in sooner, this is just a rule of thumb.

When a court sets a case for trial, it is much like booking a flight. The courts know that 90% of the cases on their docket will likely settle before a jury is picked. The can only hear so many trials a week. So they "book" several trial for the same day. The oldest cases have priority. A few days before the trial the attorneys announce to the court if they are ready for trial and how long they think the trial will last. By the day of trial, the court knows who is set first, second, third... etc. If the first case set for trial cannot go or settles, then the second case goes to trial. I have seen cases set fifteenth suddenly become first. Any case not reached for trial, gets reset to the next trial docket (usually thirty to sixty days later).

The actual trial process itself is also a topic for another article. What you have here is a general calendar of the major events to expect after filing your suit. Settlement can happen anywhere in this process, shortening the schedule dramatically. This is just a rough guide, and you should consult with your attorney as to the specifics of what to expect in your own case.

I get lots of calls from people who are trying to settle their own accident claims. Usually they call near the end of their negotiations with the insurance company. They are unhappy, frustrated and looking for advice as to how to wrap it up. At some point they all say something like, "I'm supposed to get three times my medical bills, right?"

When I started practicing personal injury law in 1991, you could still get a three times settlement with regularity. But, several waves of tort reform, the adoption of the Colossus adjusting program, the requirement of HICFA forms, and some just plain anti-lawyer and anti-lawsuit propaganda, later those days are gone.

I haven't looked at the statistics recently, but the last time I checked the average soft-tissue, non-DWI involved accident case was resolving for quite a bit under three times medical bills while in litigation. The odds are still rather high against petitioners at trial too. The last time I checked the "Blue Sheets" (a published list of all litigation settlements and judgments in Texas) some 63% of the people filing suits were getting zero to something less than their total claimed medical bills at trial.

I take these statistics with a grain of salt. I know that 90% or so of the claims made in Texas resolve without the filing of a lawsuit. The ones that get filed are usually ones where there is a problem with the facts of how the accident happened, a problem with the claimed injuries, the treatment or some other issue. If the problem cases are the ones most often filed, they are not a good statistical model of the non-problem cases being settled out of court. However, the insurance companies look at these statistics too. They know that the odds of trial are not good, and they have artificially inflated egos because of it. Unfortunately they take these statistics as a model of what should happen pre-trial.

What is the amount you can expect from a soft-tissue accident case? Everyone asks, and they get mad when I tell them there is no way to tell. Now, more than ever, each case is an individual matter. The facts of the accident, the amount of property damage, your age, your prior injuries, general health, mental health, living circumstances, job, treatment history, choice of doctors, use or non-use of health insurance can all affect the outcome. I can only guess where a case is going if I have been working it all the way through and we are several moves into the negotiations process. Sure, there is an average in there somewhere. Much like buying peaches, for example, if you weigh every one there is an average weight, but the best ones have that certain firmness, color, smell and ripeness that make a good peach. You have to look at each peach individually. The same is true with car wreck cases.

I wish I could just tell you what your case was worth and that you could just reach out and grab it. I can't.

What irks me more than that though is that often these callers have backed their case into a corner. With the adjuster entrenched in a position, hiring a lawyer that late in the game may not change anything. Often the caller has negotiated away all their bargaining room, and if they hire a lawyer there isn't much left for the lawyer to do except file suit. It is akin to them having tried to work out a deal with "the mob" in a movie, and now that everything is going wrong they are finally looking for help. Unlike the movies though, I can't put on a bullet proof vest and wade into battle with a pistol that never seems to run out of ammo.

If you came to this article because you have a case heading into negotiations, and you wanted to confirm what your case was worth, I'm sorry you aren't finding the answer you want. But, I encourage you to call for help before you get in so deep that only a movie hero could save you. If you are deep in negotiations and lost as to what to do, call a lawyer anyway. Maybe there is something you missed and the lawyer can still rescue you, even if he or she doesn't need a bullet proof vest to do it.