The Personal Injury Litigation Process
One of the key things to understand is the process that you will need to follow. Hopefully, your case can be settled with a fair agreement with the insurance company.
However, that is not always possible right off the bat. Invariably, you may need to file a personal injury lawsuit. Here is how the personal injury litigation process works.
Call Your Personal Injury Lawyer
The personal injury lawsuit process begins with the first phone call to your lawyer. Preferably, this should be done as soon as possible after your accident. The minute that you form an attorney-client relationship after your free consultation, your attorney will begin to work with you to learn the facts of your case. They will give you a case evaluation or a case review after reviewing your records, the police report.
They will also help assemble the evidence, including reviews of your medical records and conversations people who can provide witness testimony. All of this is aimed at either presenting your claim to the insurance company or filing your lawsuit in court.
How Your Personal Injury Claim Unfolds
If your law firm cannot settle your personal injury case through the insurance company after presenting a demand letter, they will draft a legal complaint on your behalf. They will need to file it with the court before the statute of limitations expires.
Once the complaint is transmitted to the court and served on the at-fault party, your personal injury lawsuit has begun. Each step of the discovery process will happen according to legal deadlines set by the court.
After your complaint is filed, the first thing that happens is that the defendant has the right to respond to your complaint. This is what is known as their answer. In this document, the defendant will respond one-by-one to all the facts that you allege. More often than not, they are telling the court that they either deny your facts or cannot admit to them.
Once the complaint and answer is filed, the defendant will usually file a motion to dismiss the case. The defendant will almost always try to convince the court that your case does not have any merit or that you have not followed one of the rules of the court.
They will try to use any one of a number of arguments to persuade the court to throw out your case. The good news for you as a plaintiff is that courts usually want the case to go further and will most often not grant the motion to dismiss the case.
The Discovery Phase of Your Case
Assuming your case survives a motion to dismiss, the next phase of your case is the most lengthy. This is what is known as the discovery phase of the case. This part of your case can take up to a year and sometimes longer. Discovery is where you and the other party to the case exchange information that builds the factual record of the case.
Discovery would begin with requests for information and documents. These are called interrogatories and requests for documents. For example, you have the ability to ask certain factual questions. You can also submit tailored document requests for things such as records and emails.
So long as you are requesting relevant documents that do not fall under a number of exceptions, the other party has to produce them. Usually, both parties to a case will end up in front of the judge many times during discovery because it is not a smooth process where both parties see things the same way.
The most intensive part of discovery is the deposition. This is where your lawyer can call parties to the case or witnesses to ask them questions under oath. The point of discovery is to find out what each person knows. It helps build the record for trial, and witnesses cannot contradict their deposition answers when they testify in court later.
As a plaintiff to the case, you may find yourself being deposed too. Chances are that you will be asked questions in a deposition. This can be a very grueling exercise, since depositions can last up to seven hours.
Motions for Summary Judgment
After discovery, both sides may try to submit additional motions to the court seeking to avoid a full court hearing. These are called motions for summary judgment.
Here, you are trying to take facts that you learned in discovery and use them to persuade the judge that the law allows you relief based on facts that are undisputed. You can anticipate that the defendant will try to do the same exact thing.
In the meantime, you are in settlement negotiations for the case with the defendant at multiple points during the process. While every description of the litigation process heavily details the trial, chances are that your case will not get to that point.
An overwhelming percentage of cases settle before the case goes to a personal injury trial. Some cases even reach a settlement agreement during the trial or right before the jury decides the case. The negotiation process is always ongoing during the legal claims process.
The Personal Injury Trial
If you cannot reach a settlement agreement, the court will set a date for the hearing. The case will begin with jury selection before each party gives opening statements.
When that happens, each side will be given a certain amount of time to present their case to the court.
As the plaintiff, you will be able to call witnesses and present your evidence to the court. You will most likely be called to testify yourself and will be subject to cross-examination from the defendant’s attorney.
Each of your witnesses can expect the same questioning and cross-examination. After your personal injury attorney has tried to prove your case, the defense gets a chance to prove their side of the story. Following that, each side will give closing arguments.
Once both sides have rested their case, the judge will issue a jury instruction (if there is a jury).
Then, there will be time for jury deliberation. Then, the judge or jury (depending on whether you asked for a bench trial or a jury trial) will issue their decision. The standard that they will use is whether you have proved your case by a preponderance of the evidence. This means that they are deciding whether you have shown that it is more likely than not that the other party is liable.
If you have won your case and received a jury verdict in your favor, the last step of the case is the appeal of the verdict. More often than not, the defendant will try to appeal a jury verdict, especially if there is a large damages award. Many extremely large jury verdicts can be reduced on appeal. However, you have the right to appeal the reduction of your award in most cases.
To learn more about how the personal injury litigation process works, contact the attorneys at Rosenfeld Injury Lawyers to schedule your free initial consultation. We are experienced attorneys and trial lawyers familiar with all aspects of personal injury law.