-by Mark Miyasaki, Esq.
In civil litigation, it should come as no surprise that the most common types of cases involve personal injury matters. Car accidents, slip and falls, dog bites, defamation, a wrongful death. The list goes on.
What happens less often but may nevertheless find its way into a personal injury matter are probate issues. Perhaps a minor passenger gets injured in a car accident or perhaps they are defamed on social media. Perhaps an individual with mental disabilities slips and falls in a grocery store or they get bitten by an unleashed dog. That’s where probate issues may trickle in. For example, perhaps a conservatorship may need to be initiated when the injured party is incapacitated. Or, a guardianship may need to be initiated if the injured party is a minor. Or, say, in a wrongful death action, an estate may need to be opened to bring a case against the responsible party, or receive funds from an ongoing lawsuit. Suddenly, the injured party, their representative, or the lawyer representing them finds themselves in foreign territory.
In any case, as the above demonstrates, personal injury lawsuits vary and lots of different factors can play a part.
Before we get into the role of a conservatorship, guardianship, or probate in a personal injury lawsuit, let’s go through the steps of a personal injury lawsuit:
First, it’s important to note that certain time limits exist within which you are allowed to bring a lawsuit. To make it even more confusing, those time limits vary based on what claims you bring. It’s always important to research your particular claim’s statute of limitations because filing after that date will very, very likely result in you losing your case. On a related but equally important note, if the responsible party is a public entity in California, you are required to file a tort claim with the government WITHIN SIX MONTHS of injury.
Once you retain an attorney who you feel comfortable with (very important: you’ll be working with this person for a while, so liking your attorney is crucial!), the attorney will need to gather as much information as possible before even filing the lawsuit. For example, they’ll want to gather your medical records and bills and other expenses incurred, any information from witnesses, etc. to show your damages and how much you need to be compensated, among other things.
Note on Probate: If your case involves probate issues, tackling that even before filing the lawsuit may be beneficial. For example, if the injured party is a minor or lacks capacity, you may need to get a guardianship or a conservatorship sooner rather than later as that guardian or conservator may need to make decisions on behalf of the injured party. Doing so during the litigation may cause delays.
In any case, once all the information is collected, then the lawsuit can be filed. Once filed, the injured party is called the plaintiff and the responsible party is called the defendant, and the defendant needs to be personally served (meaning, a process server needs to hand deliver the filing documents, which are usually a Summons and a Complaint).
Once the party is served, the defendant has 30 days to respond in some form. Usually, they will file a response called an Answer, which generally denies the claims in the Complaint. They may file a counterclaim against you or against other entities or individuals they believe are responsible. They may file a motion to dismiss the case. It depends on your type of case. However, usually, an Answer will be filed.
Then the longest phase of the litigation kicks in, which is the discovery phase. Discovery involves the exchange of information between the parties through written questions and answers, the exchange of documents, and depositions.
Both parties will likely exchange written questions they want the other party to respond to regarding your recollection of the incident, what actions you’ve taken since the incident, who are your witnesses, if any, and so on.
Both parties will also likely exchange document requests. As an example of the types of documents that may be exchanged during a personal injury litigation, the plaintiff may want to see investigations into the incident while the defendant may want to see medical records, including billing, as a result of the incident.
The plaintiff will likely be deposed, as will the defendant(s). Witnesses may also be deposed, including expert witnesses who are, as the name suggests, experts hired to show, for example, how “X” incident caused “Y” to occur. A deposition involves a lawyer for one party directly asking questions to the other party or a witness, which although it takes place in a conference-room type setting, is actually a formal court proceeding in which you get sworn in. Both sides can depose the other side and other relevant witnesses.
The parties may also request documents from third parties, which require a subpoena. Common examples of documents that may subpoenaed include medical records, social media postings, police reports, recordings of the incident, and so on.
After discovery ends, which in California is 30 days before trial, then the case finally goes to trial. Although many cases go to trial, most do not. Indeed, roughly 97% of civil cases do NOT go to trial, which is because at any time during the litigation process discussed above, the parties can settle. If no settlement happens, then your case goes to trial.
If you do settle or if you win at trial—congratulations! At this point, probate issues could trickle in again. Say the injured party is a minor, but they now find themselves receiving a considerable amount of money from the responsible party. The parties may need to set up a conservatorship (for someone over 18) or a guardianship to preserve a minor’s settlement proceeds by holding the funds until the minor is of age. Or, if the plaintiff passes away before the lawsuit has been resolved, an estate may need to be set up so that someone can essentially fill the plaintiff’s shoes and receive any funds into the deceased’s estate.
As you can see, there are a variety of ways that the worlds of probate and personal injury can intersect. If you have questions about personal injury and probate, contact our law firm for more information at 925-322-1795.