You may find that your personal injury, car accident or medical malpractice case has landed in Federal Court. This can occur if there is complete diversity between all Defendants and all Plaintiffs. You do not have to file you case in Federal Court if you have a serious personal injury, but it may be the best course of action for your lawyer to take. Charting a course in Federal Court may allow for a faster time frame in which to get your case to trial. Also you may be in a venue that is considered to have many white collar or more conservative potential jurors such as Staten Island or Manhattan.
If your lawyer puts the case into Federal Court there are no appeals, until there is a final judgment in the case or a final decision that deposes of the in your favor or against you. The reason for this is that the Second Circuit which is the Federal Appellate Court for the New York City area does not want to be flooded with multiple appeals – until all issues are decided. Otherwise they will be inundated with appeals, when they would rather deal with all the issues in one final appeal.
In Federal Court in order to appeal before a non-final decision you have to make a motion (a motion is also sometimes referred to as an application, and this is defined as a request for something from the bench, and this something can be most anything.) The motion in this hypothetical case is for leave to file an appeal is called an, “interlocutory appeal.” If this motion is granted then you have the right to go to the Second Circuit to seek an early decision that could be dis-positive to the action and in your favor or for some other critical reason be immediately important to the action.
The Supreme Court is different. There is an absolute right to appeal every decision in the Court if timely. (Unless you have already appealed the same issue before or perhaps re-argued the same issue before the Court, which may have cut off your right to appeal unless, for example, the re-argument is based on new evidence. In Supreme Court you also have the right to write to the Court after a period of time, and remind the judge that you are still waiting for a decision or at least first speak to their clerk.
In Federal Court I have waited up to almost two years for a decision on summary judgment motions. This can be very frustrating to your clients. If your injury is debatable, which may or may not be considered a qualifying serious personal injury then there will likely be what is called a threshold motion seeking summary judgment dismissal of your case, because the Defendants are claiming that your injury does not qualify as a serious personal injury. There are many factors that go into the time frame of a Federal Judge rendering a decision. I am not going to speculate on what that may or may not be… only point out that that is the last few years I have experienced very long waits in Federal Court for one personal injury matter and in one both contract case, the personal injury case involved a 42 USC 1983 case (which involved the excessive use of force causing wrongful death and personal injury.) Here is what your lawyer may consider when determining where to sue: in State Supreme Court or Federal Court:
Let’s take an illustration…you are involved in a truck accident in which an 18 wheeler rear ends you, liability seems simply as you are stalled on a highway, and not moving, in an area where there is a limited shoulder on the road in NYC. But there are still defenses because you are stalled on a highway, and the case needs to be litigated fully before a judge on the issue of liability. So your lawyer hires an accident expert to investigate the case, because you have sustained a serious personal injury as defined under New York State Insurance Law. You were out of work for 6 months and also sustained a fracture to your back, so on two points your injury qualifies as a serious personal injury under New York State Insurance Law: 1. Because you sustained a fracture and 2. Because you were out of work for more than 6 months, your lawyer knows the case is a valid personal injury case qualifying under serious injury threshold. Now they advise you to put the case into a lawsuit. After the experts investigation they determine while looking at the insurance code on the police report that the driver lives in Virginia, the company who the truck was registered to, as the registered owner is a corporate trucking company out of a major transportation hub in Atlanta, while you live in NYC, and more specifically in Staten Island, and to boot, the accident happened in Manhattan. It should be noted for you my reader, the police report in NYC has a place where there is a number code and you can determine who the insurance company is by comparing it to the insurance code listed on-line with DMV.
This is why it is important after you get into a car accident to go to the police station and obtain a copy of the police report. It is also important that you report the accident to your insurance company as soon as possible. Do not worry about your insurance rates going up, because under your insurance contract there may be a strict reporting requirement, and if you wait too long, your insurance company may claim that you prejudiced them in conducting an investigation to determine the defenses to the case.
Yes they really are on your side…they are not the enemy. If you do not report the case you may otherwise find that you are the one being sued by the driver your hit and the insurance company that insures you. And it may be ordered that they will only represent in Court for the car accident but deny coverage or to indemnify the damages you may have caused.
In order to do this the insurer will start a separate action against you, to get what is termed a declaratory judgment action. This is where a judge determines if they are or are not required to indemnify you in the damages you caused. The Court may determine that you get a defense to the case but that is the extent of your coverage.
Back to our discussion of diversity and Federal Court. Because there is complete diversity among the parties and the amount exceeds $75,000 dollars in damages, and because you live in Staten Island, a relatively conservative jurisdiction your lawyer determines that there is nothing to lose with bringing the action in Federal Court. Although the case had parties from multiple jurisdictions the attorneys have followed the Part Rules of the Justice assigned in the Federal Case and determined that they will do all party depositions in two days, and have already completed their expert investigations. At this point the case may be determined to be (non-complex), and the case may move much faster in New York Federal Court under this scenario than in Supreme Court of Staten Island where you live. And in addition the Jury pool of potential jurors will be pulled from a much larger area than Staten Island or Manhattan where the case could be sued in State Supreme Court because in one instance you live in Staten Island and in the other the car accident occurred in Manhattan.
Another reason to get the police report is that in NYC the police car accident report will also indicate who were the injured persons, and have information about witnesses and the officer analysis of how the accident occurred based on what he sees and or is told. The police report is inherently unreliable and composed mostly of hearsay meaning a statement by someone other than the person who made it to prove the truth of a matter. But the police report is essential for both your lawyer and the insurance company. Furthermore at the car accident scene remember to exchange license, registration, and insurance information and provide that information to your insurance company and to your lawyer as soon as possible.
Nothing in this blog is intended to be formal advice, the opposite is true, as you should always consult with a lawyer for more specific information relevant to your case. Manuel Moses, Esq. 236 West 26th Street Suite 303, New York, New York 10001 (212) 736-2624 x11 between 7th and 8th Avenue evening hours can be arranged.
Preserving Your Right to Appeal at Trial in Supreme Court and Federal Court and Considerations about Time. was originally published on Manuel Moses Law Office – New York, NY | Personal Injury Attorney | Free Consultation (212) 736-2624 Ext. 11
Preserving Your Right to Appeal at Trial in Supreme Court & Federal Court was originally published on Manuel Moses Law Office – New York, NY | Personal Injury Attorney | Free Consultation (212) 736-2624 Ext. 11
Preserving Your Right to Appeal at Trial in Supreme Court And Federal Court was originally published on Manuel Moses – Personal Injury Attorney NYC