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Legal Steps to take to Initiate a Nursing Home Trial

The legal system is a formalized dance. It is a back and forth process with specific timing, contents, and structural requirements. However, filing a complaint is the first move in any personal injury case. Then, normally, the defendant(s) will file an answer to the formal complaint within a special time frame, typically 20 days later.

If your client was injured at a nursing facility for the negligent actions of others, he or she is counting on you to resolve the case for compensation successfully. However, before going to trial will need to take specific steps, including conducting a negotiation meeting to see if the case can be settled out of court. Below, are the common steps to initiating a nursing home trial.

Conduct a Comprehensive Consultation

Your first contact with the potential client usually occurs through a phone call by an injured party seeking legal advice, guidance and counsel. They are likely confused about what to do to make those responsible for their harm financially accountable. Often, you will receive the phone call from a family member who is speaking on behalf of their spouse, parent, grandparent or child who is unable to participate in a consultation or they died by their caregiver's negligent actions. It can be very reassuring to tell the potential client that you can work aggressively on their behalf and handle every aspect of their case while they heal.

It is important to discuss your consultation fees upfront before you schedule the initial meeting. Typically, personal injury attorneys conduct the first case consultation free of charge. Telling the client that it will not cost them anything to find out if you are a good fit for their case can start your legal relationship on a good foot, providing you the opportunity to review their case to determine if it fits your business strategy.

Formalizing a Contingency Fee Agreement

If you agree to take their case during the consultation meeting, you will need to have them sign a formal contingency fee agreement. This legal document should outline the specifics of how you will be paid for your legal services until the case is completed.

Typically, personal injury attorneys postpone the need for their clients to make any upfront payments in exchange for taking a percentage part of a negotiated settlement or jury trial award. A contingency fee agreement can offer the client peace of mind in knowing they will not bear any more financial burden by hiring an attorney to handle their case.

The financial arrangement should document what will happen if you are unsuccessful at negotiating a financial settlement or do not win their case at trial. Once the agreement is signed, you are their legal representative in charge of resolving their claim. It's time to get to work on their behalf.

Investigating the Case

The first step you take as your client's attorney is to investigate their case thoroughly. Your efforts might include gathering evidence, analyzing reports, reviewing medical records, and interviewing witnesses. You may choose to do the investigation on your own or hire an outside licensed service that can provide an expert witness who can offer professional testimony in court if necessary.

Building a Strategy to Support the Case

After holding the first and subsequent meetings with your client, conducting specific legal research, and investigating the various wrongs the nursing home and its staff committed, you need to build a theory of your case. This theory is like a basket that holds important legal facts, including the background of the plaintiff (your client), the exact nature of the wrongful conduct of the defendant(s), and the resulting injuries.

Filing a Formal Complaint

Successful theories are comprehensively drafted and filed in the form of the complaint. It is what kicks off the lawsuit and embodies all aspects of the case. An effective nursing home complaint will identify every party involved, jurisdictional/venue/statutory authority of the court, negligence and other wrongful conduct of the defendant(s), and the damages that resulted directly and proximately from this conduct.

Normally, the courts provide you two years to file the case following the incident before the state statute of limitations expires. (735 Ill. Comp. Stat. 5/13-202). Here are a few sample Illinois nursing home complaints to give you a better idea of how to draft your own:

The Defendant's Formal Answer

Of course, your allegations will not be taken at face value, and high-priced lawyers representing nursing home defendants will certainly fight back when they file their formal response to your complaint. By law, the defendants must respond to every fact and claim in one of the three following ways: they admit it, deny it, or state they do not have enough information to respond.

The timeframe for the answer is normally dictated by the first day of trial. By that date, they must file their answer unless the judge has amended the deadline for a specific reason. Note, however, that defendants are also entitled to raise affirmative defenses and counterclaims in their prayer for relief. If the defendant chooses to raise counterclaims, the plaintiff must respond to all of them in a formal reply. Here are two sample answers from Illinois nursing home cases.

Discovery and Depositions

Throughout the discovery phase, the plaintiff and defendant's attorneys will share information through discovered evidence so that both sides understand what will be presented at trial. Withholding known evidence and facts from the other side is illegal.

At some point before or after the negotiation meeting to determine if the case can be settled out of court, one or both sides will conduct depositions to record the accounts of witnesses and parties listed in the lawsuit. The attorneys and individuals being deposed must follow civil court procedure when asking and answering questions. Their responses are being recorded by a court reporter to be used as evidence at trial.

If you and your client or the defendant's team and witnesses are out of line in asking inappropriate questions or failing to answer pertinent questions, the dispute can be resolved immediately in front of the judge. However, most federal and state judges discourage attorneys from bothering them for petty disagreements that could be resolved by acting like a professional.

Presenting the Case

Once you understand all the facts and evidence involved in the lawsuit you are likely ready to present your case to the insurance company. Once the insurance carrier understands the legal hurdles they face, and the unpredictable outcome of a trial verdict given by an angry jury they may choose to make a settlement offer.

Accepting or Rejecting a Settlement Offer

Once you present the evidence in your case, the insurance carrier then has the opportunity to respond. The insurance company is in the business to keep their profits and might be willing to make an offer to resolve the claim immediately without taking the case to trial. However, you should be prepared because they may be unwilling to pay anything at all and deny your claim outright. You should know that denying the claim in no way discounts the validity of your client's rights to seek compensation. You can still present the evidence in court and let a jury decide.

The Negotiation Meeting

Typically, the insurance company's initial offer will be substantially lower in compensation than your client deserves due to the extent of their severe injuries. At this point, you can schedule a negotiation meeting to speak with the defendant's attorneys to see how close you are to settling the case, out of court. The outcome is based on how much they want to pay and how much your client is willing to accept.

It may take more than a single negotiation meeting to come to an agreement. Be prepared to strengthen your strategy in proving your case. You should also take the time to outline to the defendant's attorneys what they will have to defend in court in front of the jury if they choose not to settle.

Accepting the Settlement

In some cases, the insurance company has made a good faith offer of an acceptable settlement amount, but your client refuses to agree to take the funds to stop the lawsuit. Many times, their disenchantment with the insurance company's offer to settle is fueled by their anger over the defendant's negligence that caused them or their loved one harm. If you have reached an impasse between the defendant and your clients, you need to have a discussion over the importance of reaching an agreement and how letting their intense feelings go could be beneficial to their health.

However, if your client refuses to accept the negotiated settlement amount, your only option is to take the case to trial. This will include intense preparation to ensure that you can tell your client's story in a way that the jury can understand logically and emotionally.

Preparing for Trial

Preparing to provide evidence to a jury trial will take you a significant amount of resources and time. You must be sure that you hire all the necessary experts that can provide professional testimony at trial to help support your claim for compensation. Your team of expert witnesses might include doctors, rehabilitation therapists, and nursing home managers or administrators who can describe in detail how the negligent actions of your client's caregivers caused harm.

Additionally, you need to make sure you have filed all the necessary documentation and paperwork with the court and be prepared to show your physical evidence to the judge before the trial begins.

Just Before the Trial Starts

Now that you have taken all the necessary legal steps to initiate a nursing home trial, the defense might attempt to settle the case one more time before the jury hears the evidence. The defending attorneys' motivation is likely intensified because at this point they have no idea what the jury will decide and how much it will cause their clients, the insurance company and policyholder (the defendant).

At this point, you have one more opportunity to discuss a settlement with your client. You can inform them that taking a settlement is a safer bet than letting a jury determine how much you are owed..

Going to Trial

Every personal injury case is different, including those involving nursing home abuse, mistreatment or neglect. However, your case is likely complex and might take longer than a single day in court to present your evidence and hear how the other side defends their actions. Once both sides of the case have been presented in court, the jury can take as long as they want to decide on a verdict. They could return with their answer in as little as a few minutes or take days or weeks longer.

No matter how long the case takes or how it is resolved, you have provided a valuable service to your client in helping them through a complicated civil case process. If the claim is resolved in your client's favor, he or she will receive the compensation they deserve, and you will be paid for the legal services you have earned.

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