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About Lawsuits

Filing the Lawsuit


In some cases, a cyclist and their lawyer may agree that filing a lawsuit is necessary in order to obtain fair financial compensation for the injured cyclist.  These lawsuits are filed in civil court and are sometimes known as “personal injury” or “tort” lawsuits.  The first stage is typically the filing of a complaint.  Generally the complaint must be filed in the county where the accident occurred or else the county where the at-fault driver lives.  In some situations there may be other option as to where to file the complaint.  In some cases there may be multiple options available as to where to file the lawsuit and the cyclist and their lawyer will need to consider which county would be most advantageous.  Some counties are of course more friendly to cyclists than others, and some counties are more friendly to injured persons generally (and consequentially, more generous with their financial compensation). And of course, jurors may feel more sympathy for a driver or a cyclist who lives in the same county as the jurors themselves.


The Complaint


The complaint will set out the allegations that establish that the cyclist (referred to in the lawsuit as “the plaintiff”)is entitled to money from the driver, the defendant. It will also specify the kind of compensation the cyclist is asking for and also will state which legal theories of liability the cyclist and their lawyer intend to use in proving their case.  In the vast majority of bicycle accident cases, the primary theory of liability will be negligence, i.e. the driver drove negligently and as a result caused the accident and the injuries to the cyclist.  In some cases, such as where the driver purposefully injures the cyclist in an act of road rage, or where the driver hits the cyclist and then tries to flee the scene but injures the cyclist further in the process, it is appropriate to bring an “intentional tort” claim (sometimes referred to as assault or battery).


One advantage to bringing an intentional tort claim in a cycling accident case (as opposed to a negligence claim) is the possibility of obtaining “punitive damages.”  Ordinarily, punitive damages are not available for most bicycle/auto accidents.  But where the driver’s conduct rises to the level of malice, punitive damages can be appropriate.  It should be noted that as a rule, punitive damages are not paid by the driver’s insurance company, but rather by the driver himself/herself.


Service of Process


After the county is chosen and the complaint is filed, the defendant must then be “served with process.”  This means that a copy of the filed complaint and other court papers must be given to the defendant/driver, to formally notify him/her about the lawsuit.  In most cases, this is a simple process, especially where the defendant/driver’s address is listed in the traffic collision report.  However, in some cases it can be difficult to the find a defendant who has moved or gone into hiding.  In some cases the lawyer and cyclist will need to hire a private investigatory to track down the defendant.  In other cases it may be possible to “serve process” on a defendant by alternative methods.


The Defendant’s Answer


After the driver/defendant is served with process, the driver (and their insurance company, which is almost certainly paying the costs and fees of the driver’s legal defense), has a statutory time period in which to file a formal response to the complaint (usually an “answer”).  Generally, the answer simply contains a statement that the defendant denies all of the allegations in the cyclit’s complaint.


In addition, the defendant will usually set forth a number of what are called “affirmative defenses.” A common affirmative defense is one based on the statute of limitations, i.e. the time. In which the cyclist must file the lawsuit. If the cyclist wait too long to file their lawsuit, the defendant may defend on the statute of limitations and the case will be dismissed.


The most common affirmative defenses called contributory negligence. In this situation, this driver contends that the cyclist was negligent during the incident. In many cases it there may be faults to some degree on both sides, but that this does not mean that the cyclist is not entitled to some compensation. It merely Means that the cyclists compensation must be reduced in proportion to the cyclists fault. Of course, in many cases the driver will raise the defensive contributory negligence even when the cyclist did nothing at all wrong. It is then up to the cyclist and their lawyer to make sure the defendant driver does not get away with this frivolous defense.


a third common affirmative defense is called failure to mitigate damages. When this defens is raised it means that the defendant or their lawyer is contending that the cyclist did not take appropriate actions after the accident. This may be a valid defense were the cyclist failed to follow their doctors advice after An accident, and in failing to do so made their injuries worse than they otherwise would have been. Another example of failure to mitigate is where the cyclist loses their job as a result of an accident, but then does not make appropriate efforts it to find replacement employment.

Preliminary Motions


Motion for change of venue –


One less common preliminary motion in California bicycle accident lawsuits is for a “change of venue.”  In this context “venue” refers to the county in which the trial will be conducted.  If the defendant driver wishes to have the case tried in another county, he or she must file a motion for change of venue either before or at the same time as he or she files an Answer or other formal response. If the defendant-driver waits too long, the cyclist and their lawyer should object to the late motion in order to keep the case located in the county of the cyclist’s choice.


Of course, if the cyclist’s lawyer did in fact file the lawsuit in an improper county, the driver has the right to force the cyclist to reimburse the driver for all of the driver’s court costs and attorney fees. And if the cyclist does not pay the fees within 30 days of service of notice of the venue-transfer order, the defendant/driver may ask the judge to dismiss the case.  Thus, it is obviously important for a cyclist’s lawyer to properly determine which county to file the lawsuit in.


Motion for judge disqualification


A little known law in California is Code of Civil Procedure 170.6 which allows any party to litigation to challenge the judge assigned to the case.  This is especially important in a bicycle accident case if the judge assigned to the case has shown a tendency in the past to be hostile/biased towards cyclists or other injured plaintiffs.  In such a situation, the cyclist and their lawyer should present the court with a declaration under oath that the judge is “prejudiced against the party (or his or her attorney) or the interest of the party (or his or her attorney) so that affiant cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge.” See Code of Civ. Proc., section 170.6(a)(5). If such a declaration is made early enough, the judge will usually be disqualified from the case.


Motion for removal – Federal court


In this context, “removal” means to move the case from California court to Federal court.  Even if the cyclist has properly filed the case in a correct county, the defendant driver may sometimes be able to “remove” the case to federal court.  However, there are strict timelines and if the defendant-driver waits too long, the cyclist gets to keep the case in his/her chosen county in the California state court system.


The Discovery Phase


After the defendant files and serves their answer, the discovery phase of the lawsuit begins. The discovery phase is where both sides attempt to gather as much information from the other side in order to help counter the other side’s arguments.  Primary methods of discovery are depositions, interrogatories, request for admission, and requests for inspection, Among others.


In most cases, the cyclists lawyer will want to bring the driver in for a deposition. This is the lawyer’s opportunity to question the driver under oath and under penalty of perjury. The questions and answers are transcribed by stenographer, and in some cases are recorded by a videographer. The transcripts or recordings can often later be used at trial.


A wide range of information can be gathered at a deposition. In a given case the cyclists lawyer may want to ask about where the driver was headed at the time of the accident, why the driver was headed to that location, and any other events that occurred that day. Sometimes it may be discovered that the driver Was late for an event and this was in a hurry or it may be discovered that the driver was unfamiliar with the location and was looking at a map while attempting to drive. In some cases maybe discovered that the driver was using a cell phone or doing something else inappropriate at the time such as eating Or putting on makeup. Needless to say, any such evidence can be a major boost to the cyclist’s claim.


It will also often be appropriate for the cyclist’s lawyer to question the driver about what the driver did the night or days leading up to the accident, as the drivers alcohol or drug use may have affected the driving even days later.  Of course, the driver’s lawyer will often want to question the cyclist as well and will ask many of the same questions that would be asked of the driver. Most depositions in bicycle accident cases last from between 2 to 4 hours. But sometimes they can go as long as seven hours.


In some situations, it makes sense to take depositions of other persons as well, these might be a passenger who is in one of the vehicles involved. A bystander who witnessed the accident, a friend or loved one of the cyclist who can attest to the severity of the cyclist’s injuries, or a Dr. who treated the cyclist and who can fully explain the extent of the cyclists injuries.


Case Management Conference


Shortly after a bicycle accident lawsuit is filed, the parties and/or their attorneys will come to court to meet with the assigned judge for what is called the Case Management Conference (“CMC”).  This is the first, and sometimes the only time that the parties/attorney will meet with the judge prior to the time of the trial.  At the CMC the cyclist and driver (or their attorneys) will briefly explain the issues in the lawsuit to the judge and the judge will then schedule the remainder of the lawsuit. Sometimes the parties/attorney may “appear” at the CMC via telephone, which has the advantage of eliminating travel time to and from the courthouse.  In some courts, such as San Francisco Superior Court, the judge may cancel the CMC  altogether and instead schedule the trial or order the parties to attend some form of Alternative Dispute Resolution (“ADR”).


Alternative Dispute Resolution


Alternative dispute resolution (ADR) refers to alternative  methods (besides a trial) to helping the parties to a lawsuit resolve their disputes without a lengthy and costly trial.  The most common types of ADR are mediation, arbitration, and neutral evaluation. These methods are typically confidential and more convenient and expedient than a formal trial.


In a mediation, a neutral person (the “mediator”) assists the parties in reaching a mutually acceptable and agreed-upon resolution of the lawsuit.  The mediator does not decide who wins, but instead helps the parties communicate so they can resolve the dispute themselves.


In a neutral evaluation, a neutral person (the “neutral”) (usually someone who has experience or expertise in bicycle/auto accident cases) will listen to and consider the respective arguments of the parties and will then analyze the strengths and weaknesses of each party’s case, and provides an evaluation of the most likely outcome if the cyclist/driver were to finish the lawsuit/trial. This evaluation helps the parties decide on what terms they are willing to settle the case.