a team of lawyers and a couple are discussing the litigation process

TheCPLawyer® – Understanding the Litigation Process

Embracing the Litigation Process

The U.S. legal system is designed to respect and protect the rights of Americans—those harmed and those accused. For the plaintiff in a civil action, the litigation process is a way to lawfully seek justice and/or compensation for the harm incurred. For the defendant, the litigation process is a way to defend against the charges being made.

With birth injury and medical malpractice, the law recognizes that mistakes are made that can have a profound impact on how a child and their family will live and function. Compensation does not reverse the child’s medical condition, but it can help diminish symptoms with more intensive or differing treatments and therapies, while easing the financial burden the child will now incur. In the legal field, this is sometimes referred to as “Lifetime Benefits.” Not every child qualifies for Lifetime Benefits, but for those that do the financial burden can be greatly eased.

The majority of cerebral palsy cases are not caused by medical negligence, however for those that are the law allows a parents or legal guardian to pursue compensation for harm incurred. Compensation provides the child with needed services, such as medical care, therapies, medication, surgeries, and treatments while easing the financial burden the condition causes to the family finances. It can also assist with adaptive equipment, assistive technologies, communication devices, or home and automobile modifications.

Medical negligence that results in cerebral palsy generally assumes that had it not been for the act(s), or omission of act(s), by the provider or the facility the child would not have had cerebral palsy. Some children have mild forms of cerebral palsy, but others are severe. The law recognizes the monetary burden, additional medical care, and the restrictions placed on the child’s ability to function in daily life. Although few would find it comforting to sue their child’s doctor, or a health care system, they have a right (within a specified time frame governed by law) to pursue compensation they may need, and that their child deserves.

Statute of Limitations

One important consideration that varies by state is the statute of limitation (the time frame deemed acceptable by the governing laws of the guiding state) in which a family can pursue litigation for harm to their child. States differ on their statute of limitations for medical malpractice cases, varying from one year after birth to 21-years-of age, or more. A Medical Legal Review of the birth records of mother and child will reveal whether the case is still within the applicable time window of opportunity to pursue Lifetime Benefits.

If you, or someone you know of, are interested in a free Medical Legal Review, call Ken Stern at today. Not all children will qualify for Lifetime Benefits, but for those that do, the financial burden can be greatly eased. Some will qualify, but sadly will miss the opportunity if not timely pursued within the statutes of limitations. Call Ken today for more information and to learn more about your options. Ultimately, the choice to pursue litigation will be yours, based on what is right for your situation.

Understanding the Litigation Process

The legal system may appear complex and challenging. It often helps to understand the litigation process. The legal system constantly evolves. Each court case can establish a new precedent under which all future litigation must be judged. In addition to state and federal regulation, laws that affect civil litigation are enacted by local municipalities at the county, city, township, and village levels. Even the manner in which court cases proceed can vary between federal, state and local levels.

Hiring an attorney that focuses on medical malpractice and that has a successful track record in litigating birth injury cases can prove extremely valuable. Ken Stern would welcome the opportunity to meet with you, and to review and discuss your ability to pursue a claim for Lifetime Benefits. If you are interested in our services, please contact Ken at .

When considering litigation, it is helpful to learn the nuances of the legal system, which is why lawyers concentrating in a single area of the law can be beneficial. The following is an eight-step overview of the litigation process.

The Litigation Process: Eight Steps Detailed

The process for bringing forth birth injury litigation can be organized into eight stages, each with their own particular goals and requirements. The timeline for moving through these steps will differ depending on the case requirements. At any time in the process, a case can be closed.

These steps are detailed below.

Step 1: Obtain Medical Records

As a general rule, parents should maintain their child’s medical records to record immunization, growth milestones, illness, surgery, and medical complications. Medical professionals are only obligated to keep a child’s medical records for a designated period of time. There are many times in a child’s life, especially if the child has cerebral palsy, when it will be important to have a copy of the medical records conveniently located, including:

  • For diagnosis: For children with developmental delay, medical records can be extremely valuable in many ways. There is no single test that will conclusively diagnose cerebral palsy. Some severe cases of cerebral palsy may be diagnosed at the time of birth, however in others, the diagnosis is not yet conclusive and other conditions may need to be ruled out. As a parent begins to seek answers for why their child is behind in established growth milestones, medical history and test results are reviewed over a period of time, usually the first 3-5 years of a child’s life.
  • For management of condition: After receiving a diagnosis of cerebral palsy, a parent that maintains medical records for their child will find it easier to provide various medical professionals with the valuable information they may require. Medical records, including test results and formal diagnosis, can indicate the extent, location, and severity of the child’s impairment. Providing the documents to each and every professional the child is referred to at the time of initial appointment can efficiently help them to evaluate the child’s treatment protocol. Otherwise, the provider may schedule a second appointment at a later time, after they are able to obtain and review the child’s condition with the primary care physician. Having the records conveniently located will also save time and sometimes expense and make the initial consultation more productive. Even so, medical practitioners may still need to contact the child’s primary care physician for further information or a more complete medical history.
  • For school: Children with cerebral palsy are often evaluated for the special needs while attending school. These Individualized Education Plan (IEP) reviews often require a team of professionals to meet with the family, review pertinent medical records, home life, the child’s ability to provide self-care, and the child’s ability to perform daily activities. The medical records will be extremely helpful in assisting the school to determine what options are available for the child’s educational experience.
  • Through HIPPA: Federal law mandates that patient’s have access to most of their medical records. The Health Information Portability Accountability Act (HIPAA) protects patient privacy when it comes to health information, and provides a degree of access to medical records. According to HIPAA, the person requesting the medical records must be the patient, parent, or legal guardian. As an alternative, the patient can provide written permission that allows a medical facility to release a copy of the medical records for review. Often medical offices will utilize medical release forms for such purposes.
  • For convenience: It can be most efficient to request medical records at the time a doctor is providing diagnosis or sharing test results, as opposed to asking for records 1-2 years down the road. Over time, a patient risks the chance that the records are lost or destroyed, especially in instances when medical facilities have closed, or changed ownership. When discussing test results, or similar situations, asking for a copy may be all that is necessary. A short 1-2 week waiting period is not uncommon when requesting certain records. Medical facilities will sometimes charge an administrative fee for providing records. This usually covers copy charges, postage, storage retrieval fees, and staff time involved in gathering the requested information. In some instances, it may be possible to have this fee waived. Discuss all costs and options with the medical provider’s office.
  • For lifetime benefit consideration: If a parent wishes to pursue Lifetime Benefits for their child, a medical malpractice attorney will likely request that the mother be available for questions and the child’s medical records be obtained, if at all possible. The mother will be able to relay specific pregnancy and birth-related experiences. The medical records may prove beneficial in determining whether or not there is a case worth pursuing through the litigation process. It is not mandatory that records are provided at time of legal consult, but it is helpful. If records are not provided, but the attorney believes there may be avenues to pursue, they may request a medical release form be signed so they can obtain the complete records.
  • For government assistance: To apply for Medicaid, Medicare, Social Security Disability Insurance, public assistance, or disability benefits, it is likely the attorney will require proof of diagnosis; extent and severity of impairment; and financial need. Having medical records organized and available will facilitate a productive review.

Step 2: Contract with a Qualified Lawyer

The law is so broad and expansive that lawyers, much like doctors or salesmen, have their own areas of concentration or interest. Medical malpractice is a sub-specialty of negligence law. Hiring a lawyer that focuses on medical malpractice or birth injury law can be very important to the ultimate success of a case. Some potential benefits include:

  • Successful experience in litigating medical malpractice cases can improve your likelihood of success
  • Experienced and knowledgeable lawyers typically have resources at their disposal to develop the case, based upon their prior experiences
  • Established relationships with medical experts to research, consult, and testify
  • Familiarity with common defense tactics
  • Concentration in medical malpractice and birth injury litigation often means the lawyer has immediate familiarity with the applicable case law and statutes
  • Familiarity with medical malpractice settlement negotiations and strategies
  • Schooled in annuities and special needs trusts, commonly utilized in settlements of birth injury litigation

Lawyers have two main roles within society to uphold. First, they uphold the law. Second, they protect their clients’ rights. The client must be confident the attorney has the experience, time, and resources to properly represent their client’s interests. To do so they must be competent, proficient, fair, objective and ethical. If a lawyer feels they cannot adequately perform their responsibilities as it applies to the case, then they must decline providing legal services. Some reasons an attorney may decide to decline a case include conflicts of interest, time constraints, lack of resources, and not feeling they are able to efficiently or effectively prove the case in a court of law. If representation is declined, second opinions are always recommended, as other attorneys may reach an entirely different conclusion.

Just as a lawyer has important obligations to their client, the client also has important obligations to the lawyer. To properly represent the client’s interests, the client will need to be honest and fully disclose their situation. It also helps to have realistic expectations. Understanding the process and nuances to properly litigate a case is very important. The client will need to have trust in the lawyer’s abilities and patience with the process as it may take 1-5 years, sometimes more, to resolve a case. Contractual obligations should be honored, such as adhering to the agreed upon relationship, fee structure, and payment schedule.

To formally contract a qualified lawyer, the following steps may be helpful:

Call Ken Stern

Ken will provide an initial determination on whether the case may qualify for Lifetime Benefits, and provide an opinion on suggested next steps. Ultimately, the choice to pursue litigation always rests with the client.

Not only does Ken provide legal services, but MyChild offers a call center and online resource databank which provides non-legal information, resources, medical referrals, and inspiration on many aspects of cerebral palsy. Our call center services are provided free to those that are touched by cerebral palsy, such as parents, grandparents, siblings, relatives, teachers, government agents, medical care providers, social workers, and more. MyChild provides non-legal information and resources on a myriad of topics including care plans, special education, therapies, government assistance, treatments, financial assistance, adaptive equipment, communication devices, assistive technologies, and more. Our MyChild call center services are free and accessible by calling , or online at www.CerebralPalsy.org

Obtain a Medical Legal Review

A Medical Legal Review by Stern Law Group, PLLC and other affiliated law firms, of the circumstances surrounding the cause of cerebral palsy is an initial step in determining whether a family may be permitted to pursue Lifetime Benefits through a court of law. By first contacting Ken Stern at , or completing an online request form, Ken and our staff will gather preliminary information which will allow us to better understand whether your child may qualify for Lifetime Benefits. The review is provided at no expense to you.

During the initial phone conversation, your responses to questions will determine whether your child may be eligible to receive Lifetime Benefits. With your permission, Ken Stern, his law firm, Stern Law Group, PLLC, and/or their affiliated law firms will then review the medical records and further advise you in connection with your child’s eligibility to receive these benefits.

In reviewing the medical information, Ken and other affiliated legal counsel will be searching for signs of injury and negligence which can be proven in a court of law. To be successful in a birth injury lawsuit, the plaintiff must prove that the standard of care was violated due to the defendant’s act, or omission of act, and because of that, the child developed cerebral palsy. In order to seek compensation, proof that substantial expense has been incurred and will continue to be expended as a result of the damage caused.

Generally, medical malpractice focuses on what a medical professional did, or did not do. It can be intentional or accidental. Either doing something, or failing to do something, that others with similar qualifications would perform under similar circumstances, can result in medical negligence as long as it can be proven beyond a preponderance of evidence. Civil law requires that negligence be proven with a, “preponderance of evidence,” as opposed to the stricter burden of proof in criminal law which requires proof, “without reasonable doubt.” Another important consideration is whether the cost of pursuing litigation outweighs the possible award or settlement.

Check Statute of Limitations

Before any litigation can be initiated, it must be determined whether the time limit on filing suit has expired. In the case of medical malpractice, the statute of limitation prevents a person from filing a law suit after a specific amount of time has passed since the injuring event. States have differing rules on the statute of limitations; some only provide one year from the time of birth, while others extend the time period until a person’s 21st birthday, or beyond.

The statute of limitations is not always clear cut. Though the timeframe typically is very specific (such as a stated number of years), the question arises as to when does the statute of limitations timeframe begin? Some states mandate the timeframe to begin when the injury actually occurred, while others mandate it begins when the injury was discovered.

Statute of limitations, in essence, protect the defendants whom, after a number of months, or years, would not have the capability to fairly defend themselves in court as documents are not kept forever, memories fade, and evidence becomes harder to collect and validate.

Participate in Initial Consultation

Lawyers have much at stake in deciding whether to take a case. Likewise, potential clients are trying to secure the benefits their family needs and their child deserves. Contracting a lawyer is forming a partnership, of sorts, in which active participation on both sides is necessary to the ultimate success of the undertaking. Contrary to the image of a lawyer chasing ambulances to find clients, lawyers devote careful consideration into whether they will accept or decline the case. Internal review (by law firm staff) and external review (by doctors and/or nurses) of medical records and overall case merit can be very expensive to the lawyer when there are no guarantees of the outcome.

If a medical malpractice attorney undertakes a birth injury case on a contingency basis, meaning they do not require the family to contribute to the expense of litigation in the 1-5 years it typically takes to resolve, they are hedging a substantial risk. In essence, the attorney is agreeing to a portion of the settlement upon successful litigation, and not requiring any funds in advance to pay for such expenses as attorney and staff time; discovery expenses; depositions; expert review and opinion; or filing costs. If the case is lost, lawyers whom have agreed to the contingent fee agreement will not receive any compensation for their efforts. This is a substantial investment risk for a lawyer and their law firm. They want to know whether the case has merit and whether they have the ability, at that time, to help the potential client pursue their right to Lifetime Benefits. They also need to be reassured that the client is committed to pursuing litigation.

Equally important to accomplish in any initial consultation is whether the client feels confident in their choice of lawyer, the law firm, the process, the purpose, and the expense. An initial consultation allows the client to explore the litigation option and gain confidence in the lawyer’s abilities. It is the client’s right to determine whether they feel the lawyer has the proper qualifications, experience, and successful track record. Ultimately, it’s also the client’s decision on whether they pursue litigation.

An initial consultation can help the potential client and the lawyer to decide whether to contract for legal services and under what terms. For more information on the initial consultation process, refer to “Initial Consultation” on this website.

Agree to a Retainer and Fee Structure

When contracting a lawyer, fee structures, and payment requirements should be fully understood and agreed upon in writing. Legal firms generally require three documents to contract for their services. They are:

  • Retainer agreement – a formal contract between a client and a lawyer in which a client agrees to retain a lawyer and their law firm to represent them on a particular matter. The lawyer and their law firm are also formally agreeing to represent the client under the terms and conditions set forth in the agreement.
    • Fee agreement – is a formal contract between a client and a lawyer which outlines the monetary responsibilities agreed upon for the services being retained. Three main elements of the fee agreement are:
    • Fee structure – The fee structure is the basis on which the client agrees to pay the lawyer. This should not only include the legal services, but also detail how expenses will be incurred and paid. The terms and conditions should be discussed, understood, and agreed upon in writing before the lawyer provides legal services. Fee structures can be lump sums arrived as a percentage of award, an hourly charge, a flat fee, or some combination that may or may not cover expenses incurred.
    • Payment agreement – The payment agreement details when the funds are due. In some cases, payment is not required until the settlement or recovery is awarded, while other arrangements could require a retainer fee and periodic payment plan.
    • Affordability – Affordability is determined by the client. If an attorney agrees to litigate the case, the client will determine whether they feel the fee structure and payment plan is feasible, competitive, within reason, and consistent with the lawyer’s experience and success rate.
  • Medical record release – Federal law mandates that the client has access to most of their medical records. The Health Information Portability Accountability Act (HIPAA) protects the client’s privacy when it applies to health information, while providing a degree of access to the minor child’s records. According to HIPAA, the person requesting the information must be the patient, parent, or legal guardian to obtain medical records. As an alternative, a patient can provide written permission that allows their medical provider to release a copy of the medical records to the lawyer for review.

Ken Stern, his law firm, Stern Law Group, PLLC, and/or their affiliated law firms, will offer a contingency fee agreement in which the lawyer takes a percentage of the final judgment or settlement (after expenses are deducted), but will not bill the client prior to a successful verdict.

At Stern Law Group, PLLC, court costs and other additional expenses of legal action usually must be paid by the client. The percentage fee will be computed before or after expenses are deducted from the recovery in accordance with state laws.

However, there are differing fee structures relied upon by other attorneys, including:

  • Contingency fee agreement - In a contingency fee arrangement, the lawyer is paid a portion of any settlement or judgment only if a settlement or judgment is reached. Typically, this is a certain fixed percentage of the award or settlement. Most states regulate the percentage an attorney is allowed to charge. The agreement may, or may not, include expenses. Typically, state regulations provide stipulations on this type of fee arrangement.
  • Monthly retainer agreements – In a monthly retainer agreement, the client agrees to pay a monthly fee, for which the law firm bills against as services are rendered. The law firm will typically issue monthly invoices which contain hourly billing rates of the various staff utilized during the month, and expenses paid. The agreement should stipulate how the funds are provided if more funds are required for the month, or how the funds are disposed if not all of the monthly allotment was utilized.
  • Prepaid retainer agreement - In a prepaid retainer agreement, payments are issued to a law firm in advance for an agreed upon package of service care. The law firm will then provide billing statements showing expenses incurred against the payment already made.
  • Hourly fee agreement – In an hourly fee arrangement, legal services are paid on an hourly basis, as needed. Lawyers provide a list of hourly rates for the various levels of personnel that may be required on the case. Periodically (usually monthly or quarterly), the law firm will issue a bill for the previous period’s legal fees. Clients have an established number of days to pay the bill.
  • Flat fee agreement – The lawyer and the client agree to a set amount of money for the client to litigate the client matter.
  • Pro bono services – In some cases, lawyers will agree to take a case on a pro bono basis, meaning they will provide their services free of charge.

Fee agreements would stipulate how expenses will be handled. These expenses are generally thought to be outside the realm of lawyer services, but are necessary to successfully litigate a case. Expenses can include, but are not limited to:

  • Administrative expenses (copies, filing, packaging, postage, and delivery)
  • Court filing fees
  • Court reporter fees
  • Court transcripts
  • Deposition fees
  • Expert witness review and expense
  • Medical exams
  • Medical record recovery
  • Storage retrieval
  • Summons and subpoena fees
  • Travel expenses

In addition to the costs of the case, the fee structure should outline when and how payment is to be made. Contingency arrangements are based on a lawyer receiving a percentage of the final award or settlement. The lawyer’s percentage can be taken after expenses are paid, This affects the final award which is provided for the child’s care. If during the litigation process, the attorney negotiates a settlement that the client agrees to, it is imperative that the client have an understanding of what the attorney’s fees and expenses will be in this scenario. Fee agreements should be in writing to avoid conflict or misunderstanding

Seek Second Opinion if Lawyer Declines Case

If for any reason a lawyer has declined to represent the client, the client will likely receive a close letter informing them of this decision. There are many reasons why the attorney may be unable, at the time and given the circumstances, to represent the client. Clients should not interpret the decision on whether the case has value or whether it has merit for a claim. The client still has the right to pursue litigation by having a different attorney review the claims for a second opinion.

If a client decides to pursue a second opinion of the merit for the potential claims; pursue litigation; or actually file suit, it is very important to act within the applicable statute of limitations. Do not delay. If a lawsuit or complaint is not filed in the appropriate court before the applicable statute of limitation expires, the client will be forever prohibited from making a claim for damages.

Step 3: Obtain an Internal and External Case Review

Initial consultations may rule out or confirm the case has potential legal merit, however it does not guarantee it. Further investigation is required. Medical malpractice complaints are thoroughly investigated. Once a retainer and fee agreement are signed, Ken Stern, his law firm, Stern Law Group, PLLC, and/or their affiliated law firms will conduct an internal (relying upon their own staff) and, if needed, an external (relying upon outside physicians or nurses) case review of merit. They will likely have the client sign a medical release form to obtain further health records from appropriate doctors and health care facilities.

This review may include a thorough review of the circumstances surrounding the cause of the child’s cerebral palsy, including health history, social habits, test results, medical records, APGAR scores, and heart monitor strips, and more. There will be questions about the prenatal, perinatal and postnatal experience. They may require the names of the mother’s and the child’s primary care physicians; any individuals who provided care or diagnosis; and contact information on all health facilities involved. Ken Stern, his law firm, Stern Law Group, PLLC, and/or their affiliated law firms will review the information and determine any additional information that may be needed for an internal case review.

Internal case review. As a precursor to filing suit, a lawyer will examine all aspects of the potential case and weigh it against existing regulations and rules of law to determine if they feel the case has merit to pursue litigation. They are looking for indicators of medical malpractice or substandard care. They are attempting to uncover proof that an injury did occur and that it caused harm. They will conduct their own internal review utilizing their in-house resources. Much of this time might be spent with the client; obtaining information from the child’s doctors and medical facilities; and examining all medical records and potential evidence. During this time, the lawyer is building the case that an injury occurred as a result of negligence or substandard care.

External case review. To discover additional information, or to support the already existing evidence, independent outside sources may be consulted. These resources come from outside of the lawyers own’ personnel and may include experts with specific technical expertise required by the particular case circumstances. These circumstances may include other lawyers, medical practitioners, nurses, insurance representatives, risk managers, or product manufacturers. These external resources operate objectively and have no vested interest in the outcome of the case. They are often called upon to present an impartial and fair opinion to the legal team or in front of the courts as expert testimony. Expert testimony adds credibility to an argument.

In addition, the lawyer may request the child undergo additional medical tests to verify the extent, location, severity, and probable cause of the impairment or disability. Actuaries may review the case for current and future lifetime care expenses for the purpose of calculating compensatory damages. To provide proof in court, these independent sources may be called upon to provide their professional testimony during the litigation process.

If the case has merit, ultimately, the decision to pursue litigation rests with the client. After internal and external medical review, the lawyer will meet with the potential client to discuss their findings with respect to the merit of the complaint. The lawyer will offer an opinion of the options that may be at the client’s disposal. It is at this time that the client will need to decide whether or not they intend to formally file a complaint in a court of law. Ultimately, the decision to pursue litigation will be their decision.

Step 4: File a Complaint

To begin legal proceedings, a complaint must be filed with the appropriate court that has jurisdiction over the case. In birth injury cases, this is usually the state in which the child was born (or was injured), but there are extenuating circumstances such as in the case of a child born at a military facility, or if the negligence occurred at a different time and place than at the time of birth.

If the suit is filed in the wrong venue, the case may be moved to another court or dismissed. If a case is dismissed based on dismissal for lack of jurisdiction, the complaint may be re-filed in the appropriate court, assuming there are no difficulties with the statute of limitations.

In some cases, the client may have the choice to file in one of several jurisdictions. Lawyers understand the difference in the types of courts (federal, state, and local district, for instance) and advantages or disadvantages that each court may represent. This may depend on strategic circumstances, such as which court is more convenient; or which venue has more appealing jury potential.

The Appropriate Complaint Must be Filed in the Appropriate Court of Law

When a case proceeds through the United States judicial system, it is tried either by judge and/or by jury. The court system differentiates between two types of legal cases. Each type has a different burden of proof, or standard by which the defendant must be proven responsible:

  • Civil litigation – is dispute resolution between two parties over a dispute, disagreement, misunderstanding, wrongful act, or grievance that is not able to be resolved outside of the court system. Civil cases end with a judgment for the plaintiff (the entity suing) or for the defendant (the entity being sued). Civil litigation suits ruled in the plaintiff’s favor typically end in a judgment and/or damages being awarded. Civil suits are filed for the purpose of damages, injunctions, setting precedents, or deterrence, but hardly ever for jail time. The burden of proof is often on the plaintiff to convince “the preponderance of the evidence favors the plaintiff.” Some tort cases require proof only at a level of “clear and convincing evidence.” The actions being questioned are often weighed against the standard of “what a reasonable and prudent person would have done, given the same circumstances.”
  • Criminal litigation – are cases brought forth by a representative of the government (prosecutor, district attorney or grand jury) at the local, state, or federal level. It is filed against those accused of committing a crime and ends in a guilty, or not guilty, verdict. In criminal litigation, the burden of proof is always on the government to prove “without a reasonable doubt,” unless the defendant claims insanity, self-defense or duress) in which they then must prove that claim. A guilty verdict leads to a sentence that may include fines, punishment, incarceration, or the death penalty. Crimes are divided into two classes: felonies and misdemeanors. Felonies usually carry a sentence of more than one year and are likely of the level of robbery, kidnapping, rape, and murder. Those convicted of felonies usually serve their sentence in a state run or federal prison. Misdemeanors, on the other hand, are usually punishable by a sentence of one year, or less. Misdemeanors are not deemed to be as serious as a felony, such as resisting arrest, petty larceny, and public intoxication. Those convicted of a misdemeanor are usually confined in a county jail.
  • Both – There are rare times when a medical malpractice suit is filed in both the civil courts and in the criminal courts. In these cases, they are two distinct and separate complaints, tried separately.

Most legal services and litigation required by the family of a child with cerebral palsy will likely fall under the category of civil, not criminal, law.

The Parties to the Lawsuit Must be Identified in the Complaint

There are two main parties to a complaint:

  • Plaintiff – The plaintiff is the person who is bringing suit against the defendant(s) in a court of law. In the case of medical malpractice or birth injury, the plaintiff is most likely the child. A minor is represented by their custodial parent or legal guardian.
  • Defendant – The defendant is the individual, combination of individuals, or health care facility that is being sued by the plaintiff. The plaintiff has reason to believe the defendant(s) are responsible for damages.

There may be more than one party deemed responsible for negligence or substandard care. Lawyers often name every individual that may be held responsible. If through the court process a defendant is proven to not be a responsible party, their names can be formally dropped from the complaint.

Four Steps to Initiating a Complaint through the Court System

In the initial stage of filing a complaint, there are four steps which occur:

  • The complaint – The complaint is a legal document filed in a court of law by a plaintiff, against a defendant’s actions. Those actions are alleged to have caused a loss that the plaintiff is seeking a legal and equitable remedy for.
  • The summons – The summons is a document issued by the court when a complaint is formally filed. The summons and the complaint are then delivered to the defendant(s) as the first official notification that a complaint has been filed against them in the court of law. The summons informs the defendant(s) that a response is required by a specified day, and provides a date in which the defendant(s) is to appear in court. It is at this point that the defendant will hire a defense lawyer and involve appropriate insurance companies of the claim. They will first review the complaint and summons to verify it meets all legal requirements to proceed.
  • The answer – The Answer is the defendant’s written response to the complaint which is filed with the court within the designated time frame dictated in the summons. This is usually prepared by the defendant’s counsel in cooperation with the counsel that defends the insurance provider. The response provides answers to each allegation against the defendant which is contained in the complaint. The defendant’s response will either admit or contest the allegation. If there is insufficient information in the complaint to admit or contest, the defendant’s counsel will clearly state so, as failure to respond to any allegation can be interpreted as an admission of truth. The response will attempt to counter, defeat, and remove allegations from the complaint in an attempt to throw out some, or all, of the allegations against the defendant.
  • Counter claims – A defendant may file a counter claim against the plaintiff at the time of the response.

Step 5: Discover and Collect Evidence

The goal at this initial stage of litigation is to research, analyze, test, and question the facts and the involved parties. The focus is on answering, “What happened? When? How? And, Why?” Both the plaintiff and the defendant counsel collect and share information about each side of the case. Both sides have the right of discovery to go to trial fully knowledgeable of the relevant facts and without secrets kept, except if the evidence is self-incriminating.

The plaintiff counsel may request such documents as medical records, test results, policy and procedure statements, contracts, emails, letters, notes, biographies, and proof of credentials. The defendant counsel may request the child receive an independent medical examination, and review of financial records, tax returns, expense reports, and medical histories. Both sides may request depositions and interrogatories, present expert testimony, or produce witness statements.

Information exchange. To ensure a fair trial, where both sides may present effective arguments, information is shared between parties. The courts typically do not allow surprise evidence or last minute witnesses. There are steps in place to postpone or delay the trial if last-minute evidence is acquired by one side. This allows the opposing side to have time to properly review and prepare. There are several steps involved to ensure that information is shared and when it is not willingly shared, there are steps in place to formally request information from the opposing side. Forms of information exchange during litigation may include:

  • Depositions – Depositions are oral answers provided under oath to the opposing counsel. Depositions can also be held for witnesses and experts expected to testify or contribute to the case.
  • Interrogatories- Interrogatories are written questions to the opposing party requiring answers made under oath and penalty of perjury. The party’s counsel will assist in clarifying questions, understanding intent, and in avoiding ambiguous response. The attorney may object to a question’s relevancy or clarity in the response provided during the time allotted for the response.
  • Motion to produce - A motion to produce is a request for documents or evidence that the other party has in their possession for purposes of duplication, review, and analysis. These include:
    • Requests for production of documents or items- These are requests for documents or physical items for review, such as contracts, emails, letters, policies, procedure manuals, tax returns, financial records, licenses, certifications, quality standards, and training documents.
    • Requests for expert examination – These are requests for an independent expert to examine the physical or mental condition of the injured party. A request can also be made to examine policy, procedures, processes, licensing, and practice standards. This may involve an expert to have access to financial record keeping, safety measures, operational processes, patient reporting, computer forensics, or hiring procedures, to name a few.
    • Request to admit or stipulate – This requires both parties agree to the truth of common facts so that both sides will not have to prepare, dispute, or provide proof during trial.

The pleading stage (summary judgments). AA summary judgment is a decision made by the court before trial on the merits of an entire case, or a specific element of the case. Counsel provides notice of their claims, their defense, and their proposed evidence to the judge. This is when a party will provide a summary of such tactics as sworn statements, documentary evidence, oral arguments, or witness statements to prove that there are no more issues of fact remaining to be tried. The strategy is to persuade the courts there is grounds for pre-trial dismissal of the complaint; dismissal of a named party in the case; or dismissal of the case altogether, before the trial begins. The judge is to interpret the law, based on the presented arguments on whether there is merit for that particular item to proceed to trial. If a charge is dismissed or a defendant released from the complaint, it means the judge has found there are undisputed facts that would make it impossible for the Plaintiff to prevail if the matter is taken to court. If the case is dismissed altogether, the judge has ruled that there is no merit to the case, as presented. A summary judgment can then be appealed by showing substantial new evidence that a dispute of facts exists.

Settlement talks. It is usually during the discovery and evidence collection stage that settlement talks begin. The review of evidence, and the totality of the allegations, allows the disputing parties to be receptive to a legally-binding agreement that would be sanctioned by all involved parties. Settlements can be reached before court action begins, or during the court process before a verdict is issued.

Step 6: Trial

A trial is an examination of facts and a determination of law in an effort to resolve a dispute between two parties. In the case of medical malpractice and birth injury, it is the process by which the government requires for a child to pursue monetary damages for harm, known as Lifetime Benefits. The process not only protects the child, but the defendant. Pursuing Lifetime Benefits provides the opportunity for both sides to present their case in the most convincing manner.

A trial occurs after discovery and collection of evidence, but before a verdict is made. The goal of trial is to ascertain the truth and to apply law in seeking justice.

Two types of trials. Essentially, a medical malpractice or birth injury case is filed as a civil case and is decided either by a jury of peers, by a judge, or by a panel of judges. In all three cases, a judge will typically preside over the court process. The judge is necessary to maintain court decorum to ensure laws and procedures of the court process are efficiently, fairly, and equitably adhered to.

  • Jury trial – A jury trial is a trial comprised of a set number of community members deemed representative of the jurisdiction where the trial is held. They are chosen by both the plaintiff and defendant counsel to provide a verdict. In order to receive a jury trial, a jury trial has to be formally requested of the court in a court filing. Community members are randomly selected from a pool of registered voters or licensed drivers; this varies amongst court systems. The jury panel is questioned and narrowed down to 6-12 jurors by both the defendant and the plaintiff counsel. In the federal civil trial, jury decisions must be unanimous, or they will be declared a mistrial due to a hung jury. Mistrials can be dismissed or retried. In state civil trials there are varying rules on consensus ranging from unanimous decision, to three-fourths consensus, or to five-sixths consensus amongst jurors required to arrive at a verdict.
  • Bench trial – A bench trial is a trial by judge or a panel of judges, without jury members. A bench trial does not require jury selection, jury instructions, jury deliberation, or jury consensus as the judge is familiar with the court of law and the requirements of providing a preponderance of proof to prove a case.

Trial process. If the client has never been involved in a trial, they may find trials to seem intimidating or overwhelming, as the outcome is important to both sides. The client’s lawyer should be very familiar with the process and the demands, and is expected to be relied upon to develop court strategy. Feel free to question and discuss the process and expectations with the lawyer. It is beneficial to both parties to understand and have confidence in the process required by the courts to reach a verdict. Trials typically follow the following standard sequence of events:

Opening statements. The civil trial opens with each side, the plaintiff first and then the defendant, presenting an overview of their case. They do this by stating what they believe are the central issues of the case and by providing a narrative of facts that will be presented to prove the case in their favor.

  • Plaintiff’s opening statement. The burden of proof is on the plaintiff to prove the defendant(s) was negligent, beyond a preponderance of doubt, by presenting clear and convincing evidence. The following elements must be established during trial. The opening statement will lay the foundation to be proven during trial:
    • Defendant(s) – establish who was at fault
    • Duty – establish the defendant(s) had a duty
    • Breach of duty – establish the duty was breached by the defendant(s)
    • Cause – establishes the negligence or substandard care
    • Harm – establishes harm and/or injury as a direct result of the negligence or substandard care
    • Damages – establishes monetary damages due to harm or injury
  • In essence, the opening statement states “The defendant(s) had a duty; the duty was breached by the defendant(s); due to negligence or substandard care; which caused injury or harm; and results in monetary damages.” In some cases, informed consent was not properly obtained for the actions taken that caused injury or harm.
  • Defendant’s opening statement. Defense counsel will then present their opening statement, detailing their presentation with a narrative of facts to substantiate their case. When there is more than one defendant, each counsel is afforded the opportunity to independently present their own statements. The defense’s main goal is to raise doubt. They are not required to disprove the plaintiff’s case, as the burden of proof lies with the plaintiff.

Case presentation of evidence. The case presentation is an expanded version of the opening statement which sets forth the convincing facts, strongest arguments, clear illustration, guiding evidence, and substantiated proof of the counsel’s case. The plaintiff counsel will present evidence, introduce witnesses and produce expert testimony. The defense will have the opportunity to cross-examine, followed by the plaintiff’s rebuttal. When the plaintiff’s case presentation is complete, the defense will then have the same opportunity to provide evidence, witnesses, and testimony followed by plaintiff cross-examination and defense rebuttal. Case presentations generally have these key components:

Presentation of evidence. Case presentation provides the evidence to back the opening statements and provide the burden of proof. Evidence can be used to prove, disprove, or contradict. Typically, there are different types of evidence which require specific types of expert interpretation. Evidence can be presented in a number of ways, such as through documents, exhibits, slides, recordings, video, photographs, animation, re-enactment, summations, and demonstrations. Even though medical malpractice trials evolve around a medical issue, evidence can be provided by various experts with differing fields of expertise, like medical professionals, human resource managers, quality control experts, risk managers, and product manufacturers.

The case presentation of evidence should be conducted in an organized, efficient, ethical, credible, and embraceable manner which can be persuasively communicated to a common lay person who does not necessarily possess knowledge on the topic or the applicable laws (or rules) that govern them.

There are different types of evidence which may be presented, including:

  • Physical evidence – is usually an object presented as actual proof of fact, without inference or presumption.
  • Circumstantial evidence – is indirect evidence referring to a series of closely associated facts which together infer and presume the fact.
  • Documentary evidence – are documents such as recordings, video, photographs, contracts, wills, emails, letters, and invoices, generally used to show motive or intent.
  • Forensic evidence – is physical (non-living) evidence such as fingerprints, fibers, and utensils; and biological (living) evidence such as blood, fluids, and saliva used for purposes of proving fact.
  • Reconstructive evidence – is portrayal of fact established by creating a sequence of events to prove point.
  • Trace evidence – is evidence, usually in small quantities, that occur when one object contacts another, leaving residual evidence.
  • Associative evidence – is separate evidence that creates or eliminates the link between the perpetrator and the action.

Expert consultant and witnesses. Birth injury trials, with their highly technical nature, rely on expert consultants to lend their knowledge to substantiating crucial points in a case. Expert consultants are hired by either the plaintiff or defendant to review, analyze, and provide opinion, especially in highly technical areas of expertise. Expertise is not limited to medical practitioner knowledge, as the crucial evidence may be on other aspects of negligence and standard of care, such as machine malfunction, procedural errors, industry-wide quality standards breaches, dosage errors, safety violations, administrative errors, operational discrepancies, security breaches, or deviation from standard human resource hiring practices.

Expert consultants who agree to provide testimony in court are called “expert witnesses” or “specially retained experts.” When they testify in court they are urged to explain in everyday terms the complicated and technical nature of a crucial area of concern in the case. Specially retained experts should be highly credentialed and respected in their field of expertise. Even though they are hired (and receive compensation for their testimony and travels) they are not to be biased for one side, but instead provide fair and objective information to all sides. They present, demonstrate, and explain points of contention when asked, during direct examination and during rebuttals. They are one of the few experts allowed to enter opinion as testimony, without having witnessed the event or action.

Witnesses, typically mean those who are credible and who actually witness an event, action, or non-action. Some items they may testify to may include the actual care provided, procedures used, training, credential verification, time of decisions, or deviation from established procedures. They can attest to actual happenings. Many commonly refer to “expert witness” to mean “specially retained expert” by interchanging terminology.

Expert consultants, specially retained experts, and witnesses who will testify at trial must be disclosed before the trial begins. They may be asked to participate in pretrial depositions to help both sides prepare a line of questioning. Generally, they have no obligation to testify. If they do, they must have an appropriate background or experience to testify as their expertise, opinion, and credentials will likely be challenged in court.

Some areas in which an expert in a medical malpractice or birth injury case may be called to testify, include:

  • probable cause of cerebral palsy
  • severity of injury
  • product or machine malfunction
  • risk management
  • quality standards
  • medical expertise and liability
  • medical procedures
  • product functionality and liability
  • informed consent
  • human resources
  • operational policy and procedures
  • recollection of events and timing
  • appropriate staffing levels

There are rules that require both sides to disclose specific information about the individuals they anticipate will testify on their behalf during trial. Disclosure involves report summaries, statements of opinion to be expressed, reasons for their testimony, exhibits that are expected to be utilized by the expert, their qualifications as an expert, their compensation agreement, and a list of other cases they have participated in. The opposing counsel can review these items and prepare cross examination, if required.

The judge must rule whether the individual qualifies as an expert on the topic in which they are attesting to. Generally, they qualify by their knowledge, experience, and training. Medical practitioners are often considered experts in their field due to extensive amount of study needed to practice in their field and by the years of actual experience they may have acquired. Witnesses are typically eye-witnesses to an occurrence important to the fact-finding process.

Direct examination. When a lawyer calls an expert or a witness to the stand they are intending to conduct direct examination of that individual under oath and on court record. The individual providing testimony is sworn to tell the truth, the whole truth, and nothing but the truth when answering counsel’s questions. The lawyer plans questions in a particular sequence and in a specific manner to elicit the testimony required for their case. Witnesses and experts are to answer only the questions being asked of them. Experts and witnesses who are unsure of the expectations of the court process may meet prior to trial date with counsel that invited them to testify to conduct a court rehearsal, of sorts. This will allow the expert or witness to experience the type of questions they may be asked in court, and the type of cross-examination they may expect as a result of their testimony.

Objections. When under direct examination, the opposing counsel may object to a line of questioning. This is because there are rules to presenting evidence. For instance, a witness can only testify to facts and cannot provide opinion or hearsay. If they are an expert, they are allowed to provide expert opinion. Lawyers questioning their experts can’t use leading questions designed to lead to a desired response. When opposing counsel believes a rule of evidence has been breached, they are to immediately voice an objection with a reason, for example “Objection: leading question.” The judge will instruct counsel to either sustain (restate or abandon the question), or overrule the objection (allow the question). Ultimately, the judge will decide whether counsel can proceed or refrain from that line of questioning. If the opposing counsel does not object to a line of questioning, then they are allowing the answer to be entered into court documents for verdict consideration.

Cross examination. The opposing counsel may wish to cross-examine the expert or witness; however, it is not necessary. The purpose of cross-examination is to clarify and to ascertain the truth. A witness or expert’s testimony can be fully truthful, partially truthful, misleading, or false. It is the responsibility of the opposing counsel, when they deem necessary, to clarify during cross examination. Often the role of cross examination is to cast doubt on the testimony or reveal prejudice; dismiss the testimony altogether; or question the credibility of the person testifying. Following are some of the tactics used in cross examination:

  • Disclose prejudice, preference or inclination
  • Establish a relationship between the individual testifying and opposing party
  • Disclose doubt
  • Disclose omitted testimony
  • Discount testimony
  • Find fault with the process of arriving at information that was attested to
  • Force contradictions
  • Question the expert, their recollection, or their knowledge level
  • Question integrity or history of being honest
  • Uncover harmful motive, biased motive, or personal interest in testifying
  • Uncover lies
  • Uncover a witness’s situation, if pertinent

The counsel providing cross examination can use leading questions. They are, however, limited to only addressing topics which were disclosed in prior testimony. If the expert omitted testimony that is relevant to the opposition, it is important for opposing counsel to lead the witness to disclose such information.

Rebuttal – Following case presentation by the defense, the plaintiff is provided the opportunity to refute claims, evidence, credibility, or testimony for the defense.

Closing statements – Generally, closing arguments are much like the opening statements in that they review the most important claims of the case. In this phase, both the plaintiff counsel, then the defense counsel, will provide a persuasive case summation. They review and reiterate the most important points of their case in an attempt to convince the jury or the judge to rule in their favor. If required, the Plaintiff has the opportunity to exercise their option for a closing argument rebuttal, if necessary. At conclusion, both sides will formally rest their case.

Jury instructions and verdict deliberation – When all parties rest their case, the judge is obligated to provide the jury with jury instructions for verdict deliberation. The instructions were previously provided by and agreed upon by the plaintiff and defense counsel. Instructions are deemed critical to the case, as they are the guidelines upon which the jury will decide their verdict. The instructions provide rules for deliberation, examination of evidence, and consideration of pertinent laws that apply to the case. Jury deliberations in medical malpractice and birth injury cases typically involve the jury deciding on whether the defendant is to be held liable for the harm to the plaintiff. . If the defendant is found liable, and responsible for causing injury, the Jury then decides on the appropriate damages in the form of money compensation. They will decide the monetary value of the harm and continued burden placed on the plaintiff. Deliberations can take hours, days, or weeks.

Mistrial. In order for a verdict to be arrived at, the courts generally have established guidelines on whether all jury members have to be in unanimous consensus, or whether a set percentage of jurors consent. Courts differ on consensus guidelines. If the consensus cannot be met, meaning jurors cannot come to an agreement, the judge may be forced to declare a mistrial based on a hung jury. Errors provided in the creation of the jury instructions or in the jury’s ability to follow the instructions may also cause a mistrial or an appeal of the case. When a mistrial is declared, the parties may seek a retrial beginning with a new round of jury selection, or they may decide to drop the issue.

Step 7: Verdict and Judgment

A verdict is an official decision made by a jury once a trial commences, and after jury deliberation. The verdict is generally presented in court. The court will typically accept the verdict. To arrive by a verdict, the following steps can occur:

  • A jury is selected by both the plaintiff and the defendant counsel to hear both sides of a case
  • The jury is charged with determining the facts of the case from the case presentations provided in court during trial
  • The jury is provided jury instructions to follow during jury deliberations
  • During jury deliberations, the jury applies relevant case law to the facts
  • The jury follows the rules of deliberation in order to reach a verdict
  • Proper consensus must be made in order to derive at a verdict
  • The jury agrees on a verdict; a decision in favor of a plaintiff or a defendant
  • If the jury finds a defendant liable, then the jury decides on appropriate damages
  • The jury reads their verdict in court

In a bench trial where there is no jury, a judge (or judge panel) makes a decision referred to as a judgment. A judgment is considered a decision of the court in determining the respective rights and claims of the parties involved in the complaint. A judge’s decision is documented in written form and presented in court.

If the verdict favors the plaintiff, and finds fault with the defendant(s), then the jury will recommend the amount of monetary compensation to be awarded to the plaintiff for loss, injury, or harm. There are basically two types of damages awarded:

  • Compensatory damages. The remedy for medical malpractice and birth injury is compensation for the harm provided to the plaintiff. In cases of cerebral palsy, the harm is not a set cost or one-time only fee; it is compensation for the ongoing lifetime financial burden. Compensatory damages, known as Lifetime Benefits, are intended to return the financial status of the child and the child’s family to what it would be had the impairment or disability not occurred. Compensatory damages are the actual and anticipated expenses cerebral palsy will likely cost the family during the child’s lifetime. Calculating lifetime costs involve estimating medical expenses, therapy, surgeries, medications, assistive technologies, adaptive equipment, home and vehicle modifications, pain, suffering, loss of life activities and some out-of-pocket expenses that would not have been incurred had the harm not taken place. Outside contractors, such as life actuaries who specialize in the financial impact of risk and life uncertainties, are often relied upon to formulate fair compensation which is presented in court by plaintiff counsel, or through the expert’s own testimony. The jury or judge takes the supplied information into advisement when considering compensatory damage.
  • Punitive damages. In rare cases in some states, the plaintiff succeeds in being awarded punitive damages. Punitive damages are compensation in excess of actual and anticipated expenses. Punitive damages are typically awarded in cases where the defendant’s actions are ruled as willful or malicious in intent. Punitive damages are awarded more in criminal cases, than in civil cases. They are sometimes awarded to a family member of the person harmed as a measure of punishment for causing loss of companionship, or loss of ability to gainfully contribute to the family’s welfare.

Court entered judgment. Once a verdict has been reached, and if it favors the plaintiff, then the court enters a judgment which orders the defendant to pay whatever damages have been awarded. This legally binds the defendant to pay damages. If the defendant does not pay the plaintiff according to the judgment, then the plaintiff may have to pursue a form of collection, such as requesting the courts to garnishee the defendant’s wages, or forfeit and sell assets and property.

Caps. Medical malpractice and tort reform is a heated topic in legislative, medical, and legal forums. Medical malpractice caps refer to statutes, rules and regulations in some jurisdictions which place a limit on the amount of damages an individual may recover. For instance, some states will

  • place limits on pain and suffering (non-economic damages)
  • limit attorney fees
  • limit recovery of quantifiable monetary losses (economic damages) including out-of-pocket medical expenses, or past and future wage losses
  • mandate what a jury can and cannot be instructed about awarding damages

States have unique and differing laws. Some states do not have caps on medical malpractice recovery. Seek counsel for definitive interpretations that may affect the case.

Attorney’s fees and court expenses. As seen in the steps outlined above, a significant amount of time and energy is expended to properly research, prepare, file and litigate a medical malpractice complaint. Attorneys that provide legal services on a contingency basis are doing so at great expense and risk. The families have agreed to the fee structure as it does not require payment, until (and if) a successful verdict is achieved. In this fee structure, a certain agreed upon percentage of the compensation awarded to the plaintiff will be provided to the lawyer to cover legal services provided. This is usually calculated after expenses are deducted from the award. Most states have guidelines on calculating attorney’s fees under this type of fee agreement. These are considered fair and equitable by the state rules and regulations, given the effort it requires for an attorney and their law firm to carry the expense of litigation for, what can become, years. Attorney’s fees and expenses are disbursed at the same time the plaintiff receives compensation.

At Stern Law Group, PLLC, court costs and other additional expenses of legal action usually must be paid by the client. The percentage fee will be computed before or after expenses are deducted from the recovery in accordance with state laws.

Disbursements. The goal of awarding damages or receiving settlement funds is to recover expenses incurred, and to preserve and provide funds for long-term care for the child. The government recognizes that in some cases a child’s cerebral palsy was most likely caused by medical negligence. The government provides a way through the litigation process to seek Lifetime Benefits for the child to recover monetary damages for the past, present, and future care of the child. Each state has differing guidelines and restrictions. Most cases will likely settle out-of-court, but for those that are successfully litigated, monetary damages are awarded. Funds are sometimes disbursed differently in a settlement which may involve an annuity or future stream of payments, versus a court award for an amount of money. Clients should ask their attorney to clarify the specifics in their case.

When the court approves a settlement, or award, the defendant(s) are required to provide the funds. This is handled in several different ways, and unique to each individual circumstance. For an overview of how the disbursement will be handled, the attorney will detail the likely timeframe, the process, and the requirements for obtaining the funds, utilizing the funds, and maintaining records. At any time during the court process the attorney will be able to overview the process he/she is pursuing on the case. Before a client signs any settlement agreement, they will want to have a clear understanding of the specifics they are agreeing to. The client may also wish to consult a tax advisor, estate planner or financial advisor.

Most often, annuities are developed by either the defendant(s) in settlements, or with the coordination of the client’s attorney (or probate lawyers for trial awards). The client should discuss the following items with the attorney during the settlement talks or trial process, and again at time of disbursement:

  • What is the total amount of the settlement, or award, and how will the funds be disbursed?
  • What are the total expenses to be paid immediately from the funds?
  • What are the attorney’s fees and how were they calculated?
  • Of the remaining funds, how much will be provided in cash? For what purpose?
  • Are there any liens on the funds to be received? If so, how will they be paid?
  • How much will be placed into an investment vehicle? What is the benefit of doing so? How does this process work in paying bills?
  • How are taxes paid on settlements or awards? Are there any ways to benefit or protect the funds through current tax laws?
  • How much will the child receive monthly? What should these funds be used for? What are the record-keeping responsibilities?
  • What would happen in the unfortunate case of an untimely death of the child? Would the funds still be provided? For how long? To whom? What options do I have to protect the funds from probate court? Is there a guarantee that the defendant(s) are still required to pay, and if so, for how long?
  • How will the settlement or award affect the child’s ability to qualify for government benefits? Is everything being done to receive and protect funds without jeopardizing government funding?
  • Would the child benefit by a constructive or special needs trust?
  • For the funds recovered for past expenses incurred, do I have any obligation to issue the recovered funds to any parties? If so, how and when?

The client may wish to consult with their accountant, tax advisor, and an estate planner to assure awareness of and planning for the tax, estate, and investment opportunities that best secure the child’s future care. These professionals may suggest ways to benefit by tax laws, protect assets, gain protection by investment vehicles, document preferences, and provide for unforeseen future scenarios. Ultimately, the client will decide which opportunities are best for their family. Some of these decisions should be made before trial; before settlement or award; or at any time that disbursements are being planned.

Step 8: Appeal Process

A party that loses at end of trial may wish to file an appeal. Appeals are based solely on legal elements of the trial. If there is new evidence that was not available during the trial; misconduct by a key participant in the trial; serious errors made by the judge or counsel; or the verdict or award was not justified by the evidence, counsel can ask the court through a motion to nullify the verdict and order a new trial. If the motion for a new trial is not granted, an appeal can be requested through the appeals court. There are stringent appeal process guidelines to follow.

Appeals. The appeals court will review the case, but, generally, they do not retry the case. They review the case to determine if the trial was conducted in a fair manner. This may, for example, involve determining whether the law was interpreted correctly; if the court rules and procedures were followed; whether evidence was (or was not) admitted appropriately; and whether the judge ruled correctly. The appeals court may entertain oral arguments by counsel. Ultimately, the appeals court will rule whether the original verdict should be upheld, reversed, or retried. Counsel in some cases may appeal to other intermediary courts, all the way to the U.S. Supreme Court. The U.S. Supreme Court, however, is not required to hear the case.