If you are headed for a trial or hearing
before a judge, you should understand that this experience is not going to be
pleasant. Everybody's expenses go up, your stress level soars and, when it is
all done and over, you still have no guarantee you will like the judge's
decision. A trial is about winning and losing and not about compromise or
cooperation. Both attorneys will do whatever they can do to present their
client's position in the most favorable light. Be prepared to be bashed. Don't
be surprised if the insurance company has surveillance films of you or tries to
bring out negative information concerning what you can do or what you have done
in the past. It is your attorney's job to make sure that he uses the same
tactics against the opposing side. Hearings are taken very seriously by the
Before you go to trial, you should make
certain that you really want to go to trial and that you have thought long and
hard about the risks that you run by going to trial. Remember, the judge may
not view everything the same way you do and never assume that just because you
have a strong case that you will automatically win. You have to ask yourself
such questions as does the risk of losing outweighs the benefits you may
receive by going to court? Are you better off compromising?
Despite all the problems or negative
things that may come about as a result of the trial, sometimes, it is your only
and best option. Many times the carrier is unwilling to compromise or concede
that you have any further entitlement to benefits and, as such, the only method
left is to go before the judge and let the judge decide.
When preparing for a trial, remember that
this is a very time-consuming type of work for your attorney. Your attorney
will review and gather all of the information related to your case and take
necessary depositions of physicians or other witnesses whose testimony will be
relevant to the issues before the judge. Your attorney should have a good trial
strategy. You should remember that your attorney gathers a lot of information
by using the formal discovery process which involves taking depositions,
requesting medical reports, requesting other documents or using other types of
discovery to find out everything he possibly can before trial. Usually, doctors
are not called on to testify but have their depositions taken ahead of time.
You can find out what the doctors will want or how the doctors will testify by
reviewing their depositions and looking at their notes.
When you finally get to court (after
waiting several days or months), your attorney will already have had several
discussions with the judge and the other attorney. In the court room, you will
sit with your attorney at a table directly in front of the judge, or at a long
conference table with the judge at the end and the opposing parties on the
other side. It is understood that you will probably be nervous about what to
expect but chances are that you have already been to the same office where the
hearing/trial is going to be held. The case usually moves along slowly and has
many stops and starts, so be prepared to "hurry up and wait."
The hearing will consist of opening
statements by each side. Then the injured worker's attorney will present his
case with witnesses who will be cross-examined and then there will be redirect
examination. After the injured worker has presented his case, the employer will
present its case using the same procedure as the injured worker. The injured
worker may have an opportunity to rebut some of the information or evidence
provided by the employer.
The judge who hears your case is
responsible for ensuring that you get a fair trial and that the attorneys or
parties follow the appropriate trial procedure. The judge will also rule on any
objections the attorneys may make to the introduction of evidence and if the
attorneys get into a disagreement or there is some problem in the court room,
the judge will step in.
During the trial, a judge listens to the
testimony and the attorneys' statements and will review all exhibits that are
entered into evidence. The attorneys will ask questions, but the judge may also
ask questions or the witnesses and will almost certainly take notes, although
sometimes a court reporter may be present. it is always good that you find out
as much as possible about the judge prior to any hearing. Most judges have
certain reputations for the kind of court room they run and the way the tend to
rule on certain issues. If your attorney is not familiar with the judge, you
should talk to other attorneys who are to help you better understand how your
case will be presented.
After all this, each side has closing
arguments and then the judge rules. Depending upon the complexity of the case,
the judge may issue a decision right away or may take days or months in which
to return a decision.
When you get to trial, remember that you
should always tell the truth and answer the questions asked in a
straight-forward and truthful manner. Appearances do count so you should
wear something simple and understated and try to be as clean and neat as
possible. Although you may be angry or fearful, you should always try and be
polite and listen attentively. When called as a witness, remember to answer the
questions in as few words as possible, pause before you answer the question,
compose yourself if a question unnerves you, sit up straight and keep your
hands folded. Do not be rude or sarcastic or argumentative and try to not give
dirty looks or expressions of exasperation.
After the hearing is concluded, it may
take a few days or several months before the judge renders a decision. Your
attorney cannot speed this process up and it is important to realize that the
judge will and should consider all evidence that was brought before him.