Every personal injury lawsuit is unique, but there are common elements that every person suing (called the plaintiff) and the person being sued (called the defendant) can expect to encounter. This article discusses the major litigation landmarks and processes the plaintiff and defendant can expect, from the beginning of the lawsuit to its resolution.
At the beginning of any legitimate personal injury case is, obviously, a personal injury. However uncertain the defendant’s liability or the extent of damages, no case will make it past the summary judgment stage without some proof of the plaintiff’s injury.
After an injury, if the damages appear to be more than the small claims court limit (around $5,000, depending on the state), most plaintiffs will seek out an attorney. The typical plaintiff’s personal injury attorney will consult with the plaintiff for free. If, after the initial consultation, it appears that the plaintiff might have a case, the attorney may agree to conduct an exploratory investigation, including whether or not the defendant has applicable insurance and/or sufficient assets. If the consultation and investigation lead the attorney to conclude that the case is viable, he or she will enter into a fee agreement with the plaintiff and officially become the plaintiff’s attorney.
Some of the initial attorneys a plaintiff contacts may decline to accept the case or refer the plaintiff to another attorney. Regardless of whether the plaintiff hires an attorney, anything the plaintiff tells the attorney is strictly confidential and protected from disclosure in court by the attorney-client privilege.
A plaintiff may, of course, choose not to hire an attorney. Because of the complexity of litigation, this may not be a wise decision, particularly if the stakes are high and the defendant is likely to hire his or her own attorney. Considering most plaintiff-side personal injury attorneys work for a contingency fee (i.e. they only get paid if the plaintiff does), hiring an attorney is usually a good idea.
After establishing that a legitimate case exists and that there are no procedural hurdles like an expired statute of limitations, the plaintiff’s attorney will file a personal injury complaint. The complaint is the first official document in the case, laying out in very broad detail what the plaintiff claims the defendant did.
After the complaint is filed, the plaintiff’s attorney will have a month or more to locate the defendant and “serve” the complaint on him or her. Serving the complaint basically means physically delivering the complaint to the defendant in a way that can be proved later, ensuring the defendant cannot later claim to not know about the lawsuit. Along with the complaint, the service papers will tell the defendant the next date he or she must appear in court.
The defendant will typically have a month or more to find an attorney before his or her first court date. If the defendant has assets or an applicable insurance policy, finding a personal injury defense attorney willing to take on the case should not prove difficult.
If insurance applies, and the defendant must notify the insurance company as soon as he or she knows about the lawsuit (which is a strict requirement in insurance policies). The insurance company will then supply and pay for its own lawyer if the defendant has not already hired one. Defense attorneys work for an hourly rate, not a contingency fee, so if the defendant can afford to pay out-of-pocket, a “losing” case headed for early settlement is not a deterrent to taking the case on.
In the pre-trial process, both sides will ask each other for evidence and witness information in a phase called “discovery.” At the early stages, both sides will also appear in court to inform the judge of how the case is proceeding, to agree or not agree to mediation or arbitration, and to set a trial date. As the discovery process proceeds, both sides will begin to schedule depositions of the opposing party and witnesses, i.e. examinations and cross-examinations under oath outside the courtroom.
This process of discovery and intermittent court appearances can take months and even years, with the trial date frequently being set back. Eventually, once the discovery process appears to have proceeded as far as it can, the defendant may ask the judge to throw out the case on “summary judgment” because the plaintiff cannot possibly win at trial (these motions lose more often than not).
As the case moves closer to trial, the parties will significantly ramp up effort as they engage in mandatory settlement conferences, make motions to determine what evidence will be allowed at trial, select a jury, etc.
Finally, the trial will begin and, for a typical personal injury case, last several days. At trial, the judge or jury will determine if the defendant is liable and, if so, how much the defendant is required to pay out in damages. After trial, either party can initiate an appeals process that can last from several months to several years. After the appeals process has been exhausted, a losing defendant will be required to pay the damages established at trial or on appeal.
Most cases settle before trial. At any point in the process described above, the parties can settle and end the case. In fact, the plaintiff can send the first settlement offer before the complaint is ever filed. What is more typical, particularly if the initial evidence establishing liability and/or damages is inconclusive, is that a settlement is reached after the discovery process has gone on for a while.
For more on the settlement process, see the articles filed under Settle Your Injury Claim.