Just when you think you know something, you find out you really don’t. After over a decade working in the legal arena, and the past several years supporting a busy litigation practice for three attorneys, I thought I had come to understand in the ins and outs of the anatomy of a lawsuit --- experts, discovery, and the regular gamut of the day to day life of litigation --- pretty well. And then I had to consider filing a lawsuit myself.
My daughters’ father’s death in May has sparked my need to learn and experience so many areas of law in a new way, including probate, insurance, trusts, and even conservatorships. And, as if that wasn’t enough, we’re getting set to file a lawsuit against the other driver and likely the municipality responsible for road maintenance where the accident occurred as well. As we’ve consulted with experts and insurance companies, we go (slowly) through the process of preparing for what could end up being a lengthy wrongful death case. In the end, the results could eventually prove to be fruitless.
Our lawyers have learned, from interviewing the other driver, that there might not be any auto insurance after all, despite the listing of a policy on the accident report. So the driver is exposed personally, but really doesn’t have much by way of assets. Lucky for us, we haven’t filed anything yet. But there might be a clear case joining the municipality for damages due to poor road design. However, that’s only based on a preliminary opinion from an expert, which cost $1,000 and six weeks to obtain.
In the end, we have to decide if we want to go forward knowing that there might be little, if any, recovery from the other driver who was at fault. And we also need to decide if we can wait out the process of litigation to get a municipality to settle before trial, which is unlikely since it’s well known that governments only rarely do not fight lawsuits brought against them without lengthy protracted pretrial activities.
Preparing to be personally involved in a lawsuit is a gamble. There is no such thing a slam dunk, and you will have to learn patience, as I’m learning all too well. Nothing in my years assisting lawyers in representing plaintiffs and defendants in lawsuits prepared me to be on the other end. There are no clear cut deadlines, no one has to answer any questions in a timeframe that’s dictated by rules. And if we don’t win, we’ve got to pay the costs associated with bringing a losing case. This could end up being more than we are prepared to pay. But the risk might be worth it if we succeed. All these ‘If’s teach valuable lessons. In the end it’s still a gamble though… only time will tell if the risk was worth the reward. Let’s gamble! ♦
Audrey M. Saxton, PLS
NALS of Tucson & So. AZ