If you are injured in an accident caused by someone else’s negligence, you may consider filing a personal injury lawsuit. Before taking that action, it’s helpful to understand what this process is.
What Happens During a Personal Injury Lawsuit?
A typical personal injury lawsuit follows this route:
Plaintiff is injured
After you are injured, you may file a claim with the defendant’s insurance company. If you are unable to reach a settlement agreement, you go to the next step.
Complaint is filed and served on defendant
The complaint is the document that initiates the personal injury lawsuit against the defendant. It includes a factual statement of allegations about what happened, including how you were wronged, why you are entitled to compensation, and why the court where you are filing your case is the appropriate court.
The defendant has the legal right to know when such legal action is taken against them. Therefore, you must have the defendant legally served with the complaint and summons.
Defendant hires an attorney
At this point, the defendant will typically hire an attorney to represent them. The defendant’s insurance company may pay for the defendant’s legal representation. The defendant may respond to the lawsuit by filing an answer in which they deny or admit each of the allegations in the complaint. Alternatively, they may file a motion to dismiss that asks the court to dismiss the complaint for some reason, such as because the complaint did not state facts that would allow them to recover compensation or because you filed the complaint beyond the statute of limitations.
Pre-trial
Before a trial is carried out, the parties participate in various pre-trial procedures. The attorneys may file various motions, such as requests to include certain evidence at trial or to withhold certain evidence from being entered in the case. The parties also participate in the discovery process in which they request all relevant information that pertains to the case. The parties through their attorneys can also conduct depositions so that they can interview witnesses and record their testimony for later use.
After this process is completed, one or both of the parties may file a motion for summary judgment in which they claim that there are no undisputed issues that are material to the case. If these motions are denied, the parties proceed to trial.
Trial
Only about two percent of all civil cases make it to trial. The plaintiff may request a jury to hear the case. The attorneys are able to challenge jurors who would be biased from being selected.
Each attorney gives an opening statement about their client’s side of the case. The plaintiff presents evidence and witnesses. The defense attorney cross-examines witnesses. The defense attorney can also have their own witnesses and expert witnesses testify.
At the conclusion of the case, the parties give a closing argument to wrap up their case and give their final arguments to the jury.
Settlement negotiations
At any point before the verdict is read (or sometimes even after), you are free to reach a settlement and ask the court to dismiss your case.
How Michael Gopin Can Help You
If you were injured in an accident caused by another party’s negligence, an El Paso personal injury lawyer from the Law Offices of Michael J. Gopin, PLLC can help. Our firm has been in business since 1987. Our El Paso personal injury attorneys have more than 30 years of combined legal experience. We are very community-focused and will work diligently to protect your rights throughout the claims process. Contact us today to get started.
Female: You’re listening to “Mike and Tricia Mornings” on 93.1 KISS-FM.
Tricia: Okay. We have one more question for Michael Gopin in this “Ask a Lawyer” segment. And I got to tell you…I hope you’re not eating breakfast.
Mike: It’s an interesting question.
Tricia: It’s an interesting question. But it is a little…
Mike: Yeah. It may not be suitable for children.
Tricia: It is a little graphic. So you might want to put your spoon down. Jason, from Northeast El Paso, says, “I had an infection in my foot, and my doctor sent me home. A week later, I had my toes cut off. They sent me home again and I had my foot amputated. When they amputated my foot, I still had constant bleeding and it would stop and they would send me home. Is there anything I can do about this? I feel like the doctor didn’t do their due diligence when it came to my care.”
Michael Gopin: Well, I’m so sorry, Jason, to hear about your issues with your foot. Very, very serious problem, I’m sorry to hear about that. In terms of your case, we would have to do a thorough investigation of the entire facts of the treatment, of your previous medical history to determine if the doctors were negligent in this case. This is a medical malpractice type of case. We would have to gather all the records and send the information to a physician who would then determine if, in his opinion, there was negligence based on reasonable medical probability. If there was, then you’d have a potential case. You know, there’s a lot of questions, you know, with infections. You know, what the doctor could have done and if he did something different, would the outcome change? And so there’s lots of variables here.
Mike: I think that hold probability, that whole medical probability part, that plays a big in something like this.
Michael G0pin: Yeah. You have to…you can’t just do it just a little bit more, it has to be reasonable medical probability that their actions caused you to lose your toes and lose your foot. And the question is, you had this infection already, if the doctor did a different protocol, would the results have been the same or would it have changed? And that’s the key here. And…
Mike: Oh, that’s gotta be hard to prove, right? Because…
Michael Gopin: It’s very difficult to prove.
Tricia: Yeah.
Mike: I mean, you have to take a leap if you’re a judge or a jury listening to this, it would make a difference.
Michael Gopin: Right. Right. It just depends, you know, some mistakes are much more glaring than others. I don’t know if you had diabetes in this particular case and that could factor into it, your medical history. Your age also factors into it, your overall health. So there’s lots of issues going on here. And you would need a thorough examination of all the, you know, medical records and your past records to make a real determination.
Mike: Now, when somebody comes to you or another lawyer about something like medical malpractice, is it something they can just consult you with?
Michael Gopin: Oh, for sure.
Mike: Or is it something that…like, in other words, you hear, “Well, we won’t get paid if you don’t get paid?” Is it one of those kinds of situations?
Michael Gopin: Yes. That is the situation, so it’s on a contingent fee basis case. These cases are much, you know, different than a regular car accident case in terms of work involved, and expenses, and so forth. So, you know, it may take six months to determine if you have a case. So, and this type of case, you really need to come to an attorney early, right, you know, at the time it happened or right thereafter because it could take quite a while before they determine if you really even have a case that they can pursue. They changed the rules many years ago. So without an expert witness, you can’t even file a lawsuit these days.
Tricia: Oh, wow.
Michael Gopin: So you need to have that expert witness as basically a gateway to filing a lawsuit.
Mike: Okay. All right. Well, again, another great episode with Michael Gopin in “Ask a Lawyer.” A lot of information.
Michael Gopin: Well, good. I was glad to be here and keep those questions coming.
Mike: Yeah, please do. You can go to kisselpaso.com. There is a section where you can ask a lawyer and you can send us your questions. You can also do it via the app. You can also submit audio using the app. And it looks like we’ll see you again next month?
Michael Gopin: Yep, for sure.
Mike: Maybe twice next month, you know.
Michael Gopin: Okay, great.
Mike: Okay, then. “Ask a Lawyer” on “Mike and Tricia Mornings.”
Female: Waking up with Mike and Tricia on 93.1 KISS-FM.
Tricia: Okay. We are back with Ask a Lawyer. We’ve got Michael Gopin in studio. We figured out what was up with his phone. It’s his wife calling him.
Michael Gopin: Uh-oh.
Mike: He didn’t want that known.
Tricia: It doesn’t matter. Too bad.
Mike: He’s going to have to hire an attorney.
Tricia: Yeah. You can’t tell us anything in the studio.
Michael Gopin: I know.
Tricia: Because you know it’s going to go on the air.
Mike: Yeah, you know, that is true.
Tricia: It is true. Sorry.
Mike: That is true.
Michael Gopin: She is the doorbell ring.
Tricia: And I figure she’s sitting there at her house or at the…or in her car and she’s like, “Watch, watch this. I’m going to do it again.”
Michael Gopin: Yeah. Yeah, if it rings again, we know she listens, right?
Mike: I’m so glad though that you’re not like other guys who have like, some kind of a mean ringtone for their wife, you know.
Tricia: I know, yeah.
Michael Gopin: Those are their ex-wives, right?
Mike: Yeah. Or for that, but some guys I mean, their wife doesn’t even know, you know.
Tricia: Yeah.
Michael Gopin: Uh-oh.
Mike: Because when you’re at home, of course, you know, she’s not going to call you. So they don’t know that you have the Godzilla theme or, you know, some other kind of ugly thing.
Michael Gopin: Uh-huh.
Tricia: The Twilight Zone.
Michael Gopin: Not that you would know personally though.
Mike: No.
Tricia: Yeah.
Mike: No, not at all. Not at all.
Tricia: I know as wife, he knows better.
Michael Gopin: This is not a confession, right?
Tricia: No. Okay. Let’s ask some more questions here. Raina from Horizon said, “I fell inside of a supermarket and no one came to help me. They left mops everywhere from a leak on the floor after the storm. I filed a complaint. But no one wants to take my case. Is there anything I can do?”
Michael Gopin: Yes, Raina, there is. Well, you could call us first of all, because we may be able to take your case. From the limited facts that you told us, it sounds like you have a potential case there. Hope you weren’t hurt too bad. But if you were, we could help you with that. The stores do have a duty to make sure it’s a safe environment for you. If they knew there was a leak in the floor, which I’m sure…we had a lot of leaks last week here in El Paso, so they needed to put signs up. They need to dry the floor. They need to make sure it was safe for you. And it sounds like they knew about it but it was still wet. And you may have a potential case there.
Mike: Yeah. Because she mentioned mops, right?
Tricia: Yeah.
Michael Gopin: Yeah.
Mike: She says they left mops everywhere, so clearly they knew.
Tricia: Yeah.
Michael Gopin: So they knew about it for sure. And that’s the first standard to note that they had actual knowledge of the problem. And they did, so.
Mike: And then the good thing is that most supermarkets, they’re going to have cameras.
Tricia: Yeah, exactly.
Mike: Right? I mean…
Michael Gopin: They may. They may not want to share that very quickly.
Tricia: I was going to say.
Mike: Yeah. But I mean a lawyer could make them.
Michael Gopin: Yep.
Tricia: Yep, exactly.
Mike: Michael J. Gopin could make them.
Michael Gopin: We can and would.
Mike: Yeah, you see. There’s an answer to this one.
Tricia: Yep. Yep.
Michael Gopin: I’ll tell you.
Tricia: Jared from East El Paso says, “I’ve seen your commercials for hernia mesh claims. What qualifies for someone to establish a claim?”
Michael Gopin: Our requirements are that you had the initial hernia mesh repair, and then it fails. And then you have to have a second surgery. Sometimes people have pain or symptoms of problems but don’t go as far as having the second actual surgery to repair the first one. So that’s our requirement to take those type of cases. They are very strong cases. And I think if you’ve had that issue and problem and had it repaired, we’d be happy to talk to you guys and see if we can help. But those are the requirements.
Mike: So if you had it repaired and you’re still having problems, right?
Michael Gopin: And had the second surgery.
Tricia: And had the second surgery.
Mike: Right. But and you’re still having problems, not like I…
Michael Gopin: Not necessarily.
Mike: Even if you had the second one and…
Michael Gopin: And then…
Mike: …you no longer have problems?
Michael Gopin: Yeah. We can still help you in that case.
Mike: Oh, wow. Okay.
Tricia: Oh, okay.
Michael Gopin: Because you had to endure the second surgery and so forth.
Mike: Okay.
Tricia: It’s the second surgery that makes…
Mike: Good to know.
Michael Gopin: Right. That’s the key.
Mike: So that’s very important. Okay.
Michael Gopin: Yeah.
Tricia: Yeah.
Michael Gopin: So I mean, they may not have used the same kind of hernia mesh the second surgery to repair it, hopefully, they do something, you know, better. But having the second surgery is what we need to be able to help you guys.
Mike: Okay, okay.
Tricia: Okay. Okay. And then Ishmael from the west side says, “I’ve been taking Zantac for a long time. I haven’t seen any side effects from it, but I want to make sure that nothing comes from me taking these pills. Can you explain the Zantac cases?”
Michael: Sure. They had an ingredient in Zantac that was linked to cancer, mostly bladder and liver cancer. Since then, they’ve taken out that ingredient and changed it to make it safe for people. So it’s generally if you had taken it, you know, before 2018, I believe, and had developed cancer from it, those are the type of cases that you may have a potential claim. And hopefully, you know, you’re not having any problems, Ishmael. And if it’s the new ingredient, which I’m sure it is, unless you have old medication laying around the house, you should be okay. But just, you know, keep an eye on everything. But those people who have been affected by Zantac and have developed cancer after taking it for at least three months, those are the people that may have potential claims.
Mike: Okay. So…
Michael Gopin: And bladder and liver are the most common.
Mike: Oh.
Tricia: Wow, yikes.
Mike: Wow. Good to know.
Michael: That’s pretty scary.
Tricia: [crosstalk 00:05:05] Yeah, very scary.
Mike: Good thing I can stomach almost anything.
Michael: Right?
Mike: You’ve see me. You’ve seen all the things I could eat.
Tricia: I totally have.
Michael: You don’t need Zantac, Mike.
Mike: And the expiration dates on them. You’ve seen that.
Tricia: Oh my God. He…I swear, when we first started working together, he would eat a bowl of cereal every morning for breakfast, and would not rinse the bowl or the spoon. Leave the residual milk at the bottom of the thing, and then come back the next day and use it again.
Mike: Yeah, uh-huh.
Michael: Well, you know, it wasn’t that bad, right?
Mike: Right. That’s what I would keep telling her.
Tricia: Oh, gross.
Michael: Yeah. Well, yeah.
Tricia: I have seen him leave a latte over the weekend…
Michael: Uh-oh.
Tricia: …on our desk and then warm it up and drink it.
Mike: I mean, you know, it’s warm now.
Michael: Hey, okay. Okay. He’s tough, you know.
Tricia: Oh, God, bleah.
Michael: True confessions here.
Tricia: Dude, seriously.
Mike: All right. Now, occasionally, we’ll get a question from someone who doesn’t really get what this feature is all about. You know, perhaps, you know, they missed the part about, you know, legal question. I don’t know. But this is what somebody wants us to ask you.
Michael: Uh-oh.
Mike: If this person has a claim, “I love my husband, but he’s useless and never wants to do anything.” Does she have a claim?
Michael: Oh, she’s got claims. In divorce court maybe but…
Tricia: Oh, Lord.
Mike: Would it really be in divorce court, like anything goes in divorce court, it doesn’t really matter what the problem is?
Michael: No. I mean, that would just be in terms of, “Hey, your divorce. You don’t have to worry about this loser guy or whatever.” You know.
Mike: I see. I see.
Michael: And I’m sure he’s not as bad as you say.
Mike: We never are.
Tricia: Oh, yeah.
Michael: Uh-oh.
Mike: All right. Is that it? Are we done? Do we have…
Tricia: We do have one more.
Mike: Okay. Well, let’s take a break. We’ll be right back and we’ll get to the last one. And this person does understand what the feature is all about.
Tricia: Yes. They actually do.
Mike: Okay then, we’ll be right back with one final question Ask a Lawyer with Michael Gopin.
Narrator: You’re listening to Mike and Tricia Mornings on 93.1 KISS FM.
Mike: Man, it’s like back in the day.
Tricia: I know.
Mike: Having Michael Gopin actually in the studio with us, huh? Another sure sign, huh? That things are getting back to normal.
Tricia: Yeah, well…
Mike: You know, as they say.
Tricia: As normal as it can be.
Mike: It’s time for ” Ask a Lawyer”. Michael Gopin is in the studio to answer your questions about some legal matters. Welcome back, Mr. Gopin.
Michael Gopin: Well, welcome. Thank you so much for having me. It’s great to be back in the studio.
Mike: You know, for a second there, I was thinking that you were just some disembodied voice.
Michael Gopin: I thought the same about you guys, you know?
Mike: Some kind of a Siri thing or something, you know?
Tricia: Right? Exactly.
Mike: But he does exist. All right, let’s get to some of these legal questions.
Tricia: Okay, let’s see. We’re gonna ask a question from James. He’s from East El Paso. And he said, “Can you explain the definition of “at fault”? So, my insurance company says that I was at fault for the accident, but I wasn’t given a ticket, and they don’t want to pay my claim.”
Michael Gopin: Okay, the ticket doesn’t really necessarily matter as to whose fault it is. The cop probably didn’t see the accident. And so, he is just going off on what people say to him or to her. So, what matters is the reasonable driving standard, basically. So, it’s negligence. So, you look at the facts of the case, and you decide, you know, who’s more at fault? Who’s more responsible for the accident? The insurance company isn’t, you know, the most powerful entity. So, they don’t get to decide for sure if you’re at fault or the other guy’s at fault. If you don’t agree with the decision, you could go to a lawyer perhaps or go to court and have a jury make a determination. So, there are ways to fight that.
Tricia: Okay. So, if they don’t pay his claim, he’s going to have to go to court?
Michael Gopin: Yeah, he would have to do something if he wants to move forward. So, the best way would be to hire an attorney, if one would help you, and then go to court.
Tricia: Okay.
Mike: And so why? Because they’re just going off with a police report that said he was at fault?
Michael Gopin: Sometimes they do. Sometimes they do, and that’s actually his insurance company. So, I’m wondering if he’s mad that they’re paying the claim against somebody else. And, if that’s the case, there’s nothing you can do to prevent the insurance company from paying. But, if he’s looking for his own money, he would be looking at the other insurance company.
Tricia: Right.
Mike: Yeah. And then the other thing we don’t know is what kind of coverage he has.
Michael Gopin: True.
Mike: Like, it may not be paying because he doesn’t have that kind of coverage.
Michael Gopin: They’re all possibilities, for sure.
Tricia: Come in.
Michael Gopin: Okay…
Mike: Doorbell…
Tricia: Who’s the doorbell?
Mike: Michael Gopin is here.
Tricia: Who’s the doorbell?
Mike: Who have we been speaking to?
Michael Gopin: I know.
Mike: I don’t have a doorbell.
Tricia: I don’t have a doorbell.
Mike: Do you have a ringer as a doorbell?
Michael Gopin: Maybe.
Mike: He doesn’t know either.
Tricia: Oh, no.
Mike: He’s looking at his computer like, “Is it my laptop? I don’t know.” Alex usually sets this up for me.
Tricia: I know.
Mike: Okay.
Tricia: Okay now, here’s a follow-up question to that one, though. So, I’m gonna make a wild guess and say that when he says, “They don’t want to pay my claim,” maybe he wants them to pay for, like, repairs and stuff like that. So, if they choose not to do that, he still needs to go to court.
Michael Gopin: Yeah, he still needs to go to court. I wouldn’t think that they would be doing that if he has the proper coverage. If he has collision coverage, it’s automatic, no matter whose fault it is. So, it wouldn’t be an issue as to fault. But you wouldn’t be looking to your own insurance company to pay damages to your car. If you don’t have collision, they won’t pay.
Mike: Yeah, they just have liability. It’ll just pay whatever is your fault, right?
Michael Gopin: Correct.
Tricia: Right, okay.
Michael Gopin: It’ll pay the other guy’s car but not your own. So, collision is what protects you. And so, if he doesn’t have collision, he would need to go after the other insurance, if there is coverage there.
Mike: Right. And prove that it was the other person’s fault.
Michael Gopin: Exactly.
Mike: Okay.
Tricia: Okay. So, Omari from East El Paso says, “I was in an accident. I was cited for it, but I know I wasn’t at fault. What can I do?”
Michael Gopin: Well, you can go challenge the ticket, first of all. You go to traffic court and contest the facts of the accident. If the officer doesn’t show up, you automatically will win your case. So, you’d have to present the facts and, you know, prove that it wasn’t your fault in traffic court. That doesn’t have anything to do with the insurance aspect of it. So, that would be two separate things. Even if you lose your traffic court ticket or pay it or whatever, it won’t change anything. They’ll keep coming in the doorbell.
Mike: I know. I don’t know what’s going on here. And when did we get a doorbell?
Tricia: I don’t know.
Michael Gopin: That’s pretty cool.
Tricia: That is cool.
Mike: Because nobody ever uses it, you know? They must not be from here because…
Tricia: They must be looking for Michael.
Mike: Yeah. It’s got to be. It’s got to be, man.
Michael Gopin: It’s a home studio here.
Mike: Hang on a second. Pizza.
Tricia: Oh, no wonder.
Michael Gopin: Oh, okay. Let him in. You’re hungry, huh?
Mike: All right. I’m sorry. Where were we?
Michael Gopin: Oh, we were in this accident, you know.
Tricia: Traffic court. We were in traffic court.
Mike: Traffic court, okay. So, even if you lose at traffic court…
Michael Gopin: Even if you lose at traffic court, it doesn’t necessarily affect your case against the insurance company. Different standard, different rules. So, you can go ahead and present your case to the insurance company, argue your facts, and hopefully, you can convince them that it’s not your fault.
Mike: Now, when you say present your case, you mean, like, through some kind of a mediation that they have? Or do you mean…
Michael Gopin: You could do that or just speaking to the adjuster, talking to them, explaining to them what happened and why it’s not, you know, your fault and why is the other guy’s fault. And perhaps, they’ll listen, perhaps, they won’t. In the event that they don’t listen and don’t change their mind, then your option is to go further and make a claim in court.
Mike: Okay.
Tricia: Okay. Samantha from West El Paso says, “Is there anything we can do about COVID? My dad died from exposure and he wasn’t at fault. We feel like it’s the workplace for not following protocol.”
Michael Gopin: Unfortunately, you know, in these sad situations, there’s really nothing that can be done to make a claim, in my opinion, that way. You know, COVID is just, you know, just a crazy pandemic that we had to deal with and there’s certain risks that are inherent in that. And it’s very difficult to, you know, to find out and ascertain where it came from and who had it first and did you get it from them and could it have been prevented? And, you know, people had to get back to work and there’s certain risks with that, that we all had to take, everybody in society. So, unfortunately, I don’t think that he would have a case against the employer for that.
Mike: Because there are no, like, there are no protections that the federal government or the state government has given you. Is that? Am I…?
Michael Gopin: Yeah, that’s correct.
Mike: So, there’s nothing like let’s say, for disability or, you know, if you were discriminated against. Where there are laws, there’s COVID-related.
Michael Gopin: Yeah, nothing COVID-related at this point.
Mike: Now, do you see or do you ever see this becoming one of those class-action kind of things in the years to come?
Michael Gopin: I don’t think so. I think it’s just gonna be too difficult to, you know, to find negligence on someone. I mean, you know, we’re in a pandemic. We were in a pandemic, that was, you know, horrible for everybody and people had to do the best they could, and no one really knew exactly what was going on or how to
prevent it. And if you remember, looking back, you know, back in March of last year, you know, people thought you could touch something and get it and then they said, “Well, okay, you can’t.” As we went further along, we learn more stuff and, you know, we still probably don’t know everything that’s going on, certainly with the variants and so forth. It’s just important to stay safe and be smart and get vaccinated and help everybody out and let’s get through this together.
Mike: Okay, this is segment one of “Ask a Lawyer” with Michael Gopin. We’ll be right back, segment two and more of your legal questions next on Mike and Tricia Mornings.
