The Interpreter's Guide to the Vehicular Accident Lawsuit

Josef F. Buenker

• Publisher: Multilingual Matters
• Year: 2004
• ISBN:
  9781847695819
• Topic: Languages & Linguistics
• Subtopic: Translating & Interpreting
• Index: Languages & Linguistics

This book familiarizes the judicial interpreter with the vehicular accident lawsuit in the USA. The entire process which an interpreter may encounter is explained from the time of the accident through the final trial. The book provides a comprehensive presentation of the participants, terminology, procedures, documents and regulations to this prevalent area of law.

Chapter 1

An Introduction to the Vehicular Accident Lawsuit

Court proceedings in the United States are divided into two basic broad categories: criminal and civil. The criminal system deals with the enforcement of criminal statutes at the federal, state and local levels, and the punishment for the violation of those criminal statutes. A criminal proceeding can range from a ticket for running a red light to capital murder, which in some states can carry the death penalty. A criminal case is brought and prosecuted by a governmental agency, ranging from a municipality, such as a city, to the federal government.

A civil claim is brought by a private party, either an individual or company, who feels that it has been aggrieved by the actions of another. Most civil lawsuits are brought by private individuals or companies for the recovery of monetary damages, such as compensation sought by parties injured due to vehicular accident lawsuits to compensate them for those injuries. A civil case may in some instances be brought by a governmental agency for monetary relief not related to any criminal statutes. The mechanisms of the civil lawsuit will be described in more detail later in this book but in the basic sequence of events, the individual who wishes to file a lawsuit, that is, the plaintiff, meets with and then hires an attorney who agrees to take the case. The plaintiff's attorney files a document in a court notifying the court and the allegedly liable party of the claim and the damages or types of damages sought. The defendant, the party that has been sued, responds by filing with the court a responsive document, or ‘Answer’, detailing its defenses to the plaintiff's claims.

Civil lawsuits can be divided into two main categories. The first category of claim, which can involve a vehicular accident, deals with the violation of contractual agreements, or contract lawsuits. There are contract claims made in vehicular accident lawsuits when uninsured motorist insurance policies are involved. In many states, a personal automobile insurance policy carries uninsured motorist coverage, which protects the owner of the insurance and/or vehicle in the event that the owner of the vehicle is damaged by a driver that does not have automobile liability insurance. The uninsured motorist coverage ‘steps in’ the place of the negligent uninsured motorist and the insured is then compensated by his own insurance company. Although a claim under an automobile uninsured motorist policy is a contractual claim, the insured is entitled to recover the same types of damages (with some exceptions) as in the tort claims described below.

The second major type of civil lawsuit involves ‘torts’. A tort is an injury to a party that occurs due to the breach of some legal duty that one person has to another. For instance, a driver of an automobile has a duty to stop at a red traffic signal. In the event that a driver violates that duty and proceeds through a red traffic signal and strikes a vehicle that is proceeding lawfully through a green traffic signal, the driver that ran the red light has breached his duty to the other driver, has presumably caused some injury to that other driver, and is therefore liable to the other driver under a tort theory of liability. A tort, then, involves the violation of some duty to a third party that causes injury. Torts can involve injuries other than bodily injuries. There are business torts and torts that cause damage to or destruction of personal or real property. There are torts created by statute, such as claims created under the equal employment opportunity statutes that prohibit discrimination based on sex, race and age. While there is a large variety of torts and types of damages that arise from these various types of tort, this book will deal primarily with personal injury and within that category, bodily injury torts arising out of vehicular accidents.

By and large, vehicular accident cases seek the recovery of damages, or monetary compensation, for bodily injuries or property damage, which is damage to property such as a vehicle or its contents. An uninsured motorist claimant still seeks the recovery of bodily injury and/or property damages, albeit from his insurance carrier, and by and large, the lawsuit proceeds in a similar fashion. In a vehicular accident case, a party may, depending on the laws of the jurisdiction in which the lawsuit is brought, seek damages including the recovery of medical expenses, loss of income or the capacity to earn income, mental anguish, pain and suffering, disfigurement, loss of companionship of a spouse, parent or child. A personal injury claimant may seek recovery of these damages incurred between the time of the accident and the trial of a lawsuit and into the future.

The Progression of a Vehicular Accident Lawsuit

The interpreter can be involved in all phases of a lawsuit, from the initial client meeting, the investigation of a claim, the bringing of the complaint by the plaintiff, the answer of the defendant, the discovery process, settlement discussions, through the resolution, whether mediation, settlement or trial. Each of these phases of a lawsuit will be described in later chapters in more detail so as to familiarize the interpreter with the various phases of a civil lawsuit and to prepare the interpreter for his or her role in that process.

Initial client meeting

The interpreter's role with regard to a claim or potential lawsuit may begin during the initial meeting between an attorney and the client or insurance investigator and the insured. In any lawsuit, not just a vehicular accident lawsuit, the importance of obtaining a complete and accurate explanation of the circumstances of the claim and, in the case of a vehicular collision, the accident, cannot be overstated. A plaintiff's attorney needs to completely understand the story being related to him by the potential client, or he may take a case that he would not have taken if he had known all the facts, or decline to take a case that might have been a lucrative and worthwhile endeavor.

Similarly, an insurance investigator or representative of an insured defendant in a lawsuit is obligated to learn all the facts regarding the accident. The failure by the insurance company or by the potential defendant to obtain an accurate statement may lead to a mistaken evaluation of the claim and either an acceptance of liability where there should be none, or a denial of liability where liability should be accepted, either of which could lead to the expenditure of either settlement dollars or attorney fee expenses when such may not be warranted.

Investigation

The initial investigation of a vehicular accident claim is extremely important, both from the perspective of the plaintiff and the defendant. The attorney for the plaintiff and the insurance carrier hire investigators to confirm, refute or add to the facts given to them by their respective clients.

In the investigation phase of an accident, both the attorney for the plaintiff and the insurance carrier for the defendant may retain the services of an interpreter to assist in taking statements from either party to the accident or witnesses to the accident. The interpreter may be used to interview witnesses, interview the parties to the accident, or to examine documentary or photographic evidence with witnesses. These types of statement can take place either in person or by way of telephone. What may be surprising to some is that, as a general rule, the defendant in a lawsuit will have had earlier, more thorough and often superior investigation of a claim prior to the filing of a lawsuit. This is because most defendants in a vehicular accident lawsuit are insured, and the insurance carrier actually carries out the investigation immediately upon notice of an accident. By way of example, say Driver A runs a stop sign and strikes Driver B's vehicle. Driver B is transported to a hospital where Driver B spends the next few days being treated for his injuries. Driver A immediately reports the claim to his insurance carrier, which assigns an adjuster to investigate the claim at once. The adjuster immediately begins gathering information, including a copy of any police investigative report, obtaining statements of Driver A, any passengers in Driver A's vehicle, and any other witnesses to the accident. In addition, the adjuster makes an effort to contact Driver B and obtain a statement from Driver B before Driver B retains an attorney or is advised not to speak to Driver A's insurance company. By the time Driver B leaves the hospital, Driver A's insurance carrier may well have gathered statements from all eye-witnesses to the accident, the police officer, its insured, Driver A, and any passengers in Driver A's (or Driver B's) vehicle. In the event Driver B retains an attorney, which often will not happen until weeks after the accident, the attorney's investigation of the accident may begin well after the insurance carrier for Driver A has already concluded its investigation. When the insurance carrier for a defendant concludes its investigation, the adjuster will prepare a report to his superiors indicating whether or not he believes the insurance carrier's insured driver is legally responsible for the accident, and what damages the plaintiff may have suffered and a potential settlement range for the claim. At the conclusion of the plaintiff's attorney's investigation of the claim, the attorney will make a similar determination and, if he believes that the opposing driver is in fact responsible for the accident, he will approach the driver's insurance carrier in order to attempt to obtain an amicable settlement of the claim. Negotiations can conclude rather quickly in some instances, with the parties coming to a settlement. In other cases, settlement negotiations can drag on for months, and in the event settlement is not reached, the plaintiff's attorney will likely file a lawsuit against the defendant and/or his insurance carrier, depending on the jurisdiction in which the attorney practices.

Lawsuit/Complaint

A vehicular accident lawsuit begins with the plaintiff filing a complaint or, as it is called in some jurisdictions, a petition. The complaint is a document drafted by the plaintiff's attorney that sets out the claims against the defendant(s) and/or insurance company. The complaint will describe the duty that the defendant(s) owed to the plaintiff, the violation of that duty (i.e. running the red light), the damages suffered by the plaintiff, and some description of the cause of the injuries caused by the violation of the duty by the defendant. The violation of this duty is called ‘negligence’, and the defendant in a vehicular accident lawsuit is charged with negligence in a plaintiff's pleading.

Whether an insurance company is named as a party to the lawsuit in a vehicular accident case varies from state to state. In the state of Louisiana, for instance, the insurance company of the defendant driver is named as a party. On the other hand, in Texas, a defendant driver's insurance company is rarely, if ever, named as a party in a lawsuit. The complaint will contain the facts on which the plaintiff bases his allegation of liability (for instance, that the defendant failed to stop at a stop sign or a red traffic signal, or crossed the center line and caused the collision with the plaintiff). In addition, the complaint will contain a description of the damages that the plaintiff allegedly suffered as a result of the actions of the defendant: repairs to the vehicle, medical treatment costs, loss of wages, all of which will be alleged to have occurred in the past and/or be likely to be incurred in the future. This can range from a very brief description of damages to a very detailed description of the various injuries that the plaintiff claims to have incurred due to the accident.

Once the complaint is filed with the court chosen by the plaintiff's attorney, court personnel will issue a summons, or a citation, as it is called in some jurisdictions, officially informing each defendant that he or she has been sued. After the defendants receive the summons and a copy of the complaint, each defendant has a set period of time in which to file an answer to the petition or complaint. The exact time period that a defendant has to respond to a petition varies by jurisdiction. However, a defendant must file a responsive answer to the complaint within the time frame allowed by his particular jurisdiction's rules and statutes.

Defendant's pleadings

Upon receipt of the complaint filed by the plaintiff, the defendant will file an answer with the court advising the court of his responses to the various allegations made by the plaintiff in the complaint. In most vehicular accident cases, the answer will actually be filed by attorneys retained by the insurance carrier to represent the defendant. A personal automobile insurance policy purchased by an individual provides that the insurance carrier will retain an attorney to represent its insured in the event the insured is ever sued for a vehicular accident that is covered by the insurance policy. A defendant is required to respond to the allegations made by the plaintiff in the complaint, and is required to either deny or admit the various allegations that are made by the plaintiff. There may be defenses that fall outside of or that are in addition to merely responding to the complaint filed by the plaintiff such as claims that the accident was caused by a sudden emergency, like a child running out in front of a vehicle or some other such circumstance not under the control of either driver. A defendant may claim that an accident was caused by act of God, such as lightning striking a tree, causing it to fall and require a driver to swerve to avoid the tree. These defenses are called ‘affirmative defenses’, and are required to be specifically pled by a defendant in his answer. The defendant will bear burden of proving the truth and applicability of those defenses in the lawsuit so the interpreter can expect further questions about such defenses if they are introduced in the attorney client consultations.

Counterclaims

There are occasions when a defendant not only feels that he is not liable to the plaintiff for the claims alleged in the petition, but also that the plaintiff is actually liable to the defendant for damages. The defendant may then file a counterclaim against the plaintiff, alleging that the plaintiff violated some duty to the defendant, and that the violation of that duty (negligence) by the plaintiff caused damages to the defendant. The counterclaim will be similar in form to the complaint filed against the defendant by the plaintiff. The defendant will set out the facts that he or she believes make the plaintiff liable to the defendant, and will specify the damages that are being claimed by the defendant. The defendant will be able to make claims for the same types of damages as the plaintiff.

Third parties

A defendant in a lawsuit will also have an opportunity to bring in other parties not sued by a plaintiff in a lawsuit. A plaintiff may choose not to sue certain parties for tactical or practical reasons. For example, if a plaintiff is involved in a vehicular accident with two other vehicles and the plaintiff knows that one of those defendants does not have liability insurance, then the plaintiff may only sue the defendant who has insurance. The defendant who is sued may then bring in the other driver (the one with no insurance) in an attempt to show that the accident was actually caused by that party. In addition, there are instances when a passenger in one vehicle sues the driver of another vehicle alleging that that driver's negligence caused the accident and the plaintiff's resulting damages. The defendant driver may choose to bring the driver of the plaintiff's vehicle into the lawsuit, alleging that the driver of that vehicle is negligent and should be at least in part responsible for the injuries and damages suffered by the plaintiff. On occasion, defendants may bring in property owners for defective conditions on the property, may try to bring in governmental agencies for failing to properly maintain roads, and/or manufacturers of vehicles or components of vehicles for allegedly defective product. Once a lawsuit is filed, the defendant has answered and all other parties that are anticipated are brought into the lawsuit, the parties begin the information gathering process, which is referred to as the ‘discovery’ process.

Discovery

Discovery is the process by which the parties to a lawsuit gather information, both from each other and from third parties, about issues relevant to the lawsuit. This process serves to confirm and supplement the investigation that was performed by the parties prior to the filing of a lawsuit and to obtain the information in a form that is admissible and usable in court. The majority of time in a civil lawsuit is spent conducting discovery. The interpreter is most likely to be assigned for the following standard discovery procedures: Interrogatories, Requests for Production or Admission and Depositions. Discovery may be obtained from third parties, such as medical providers, traffic engineers, vehicle manufacturers, eyewitnesses, employers and pharmacies, to name a few.

Interrogatories

Interrogatories are written questions specific to the case sent by each party in a lawsuit to the other. The written questions are limited in number, between 20 and 30, depending on the jurisdiction where the lawsuit is filed. As a general rule, interrogatories are used to obtain some basic information prior to the taking of a deposition. While the party's attorney assists in the answering of interrogatories and the particular wording of interrogatories, the actual responses are supposed to be from the party to the lawsuit.

Requests for production

A request for production is a discovery procedure by which a party asks another party for certain documents or other tangible items pertinent to the case for examination or copying.

Requests for admission

Requests for admission are discovery requests in which one party asks another party to admit certain facts that are relevant to the lawsuit and are not disputed.

Depositions

Depositions are the discovery vehicles in which interpreters will see their greatest exposure to civil litigation. A deposition is a discovery procedure in which the attorney for one party takes the sworn, verbal statement of a party to the lawsuit or a fact witness or an expert witness through a regulated question and answer procedure in an informal location, such as one of the parties’ attorney's office. In a deposition, the witness is put under oath to tell the truth and the interpreter is also sworn to interpret truthfully and accurately just as though the parties were sitting in court for trial.

Mediation

Mediation is a process in which a disinterested third party, normally an attorney or a retired judge who is not otherwise involved in the litigation, acts as an intermediary between the parties in an effort to obtain a settlement of the case. Mediation, which is usually ordered by the judge presiding over the case, has gained popularity in many regions of the country, particularly those regions where court dockets are crowded and the parties sometimes wait years to get their cases to trial. Mediation can take all day and has no predetermined duration, as the purpose is to give the parties every opportunity to resolve the case without going to trial.

Settlement

In the event that a lawsuit is settled, either at mediation or by informal settlement negotiations, the interpreter will be used to assist the non-English speaking plaintiff in understanding the final settlement terms or in gaining court approval of the settlement if such is necessary. There are also cases in which a settlement must be approved by a court before it can be finalized. This approval happens at a Settlement Hearing in open court before the judge. In lawsuits where one of the parties is either a minor (child) or has been adjudicated as incompetent (found by a court to be unable to handle his or her own affairs), the parties must obtain the approval of the judge in a lawsuit prior to finalizing any settlement. It is in the best interests of both the plaintiff's attorney and the defendant and defendant's attorney to ensure that a limited or non-English proficient plaintiff has a full understanding of the terms of the settlement to which he or she is agreeing. A non-English speaking plaintiff could form the basis of an attempt to overturn a settlement, based on an allegation that he did not fully understand the settlement and that he was somehow coerced or tricked into a settlement that was not in his best interest.

Trial

In the event a vehicular accident lawsuit does not settle by way of mediation or informal settlement negotiations b...