Every personal injury case is unique, but there are common litigation landmarks you can expect to encounter once you make the decision to file a personal injury lawsuit.
In this article, we'll:
(To get an overview of the entire personal injury case process, see our timeline of an injury claim after an accident.)
At the heart of any legitimate personal injury case is, of course, an injury of some kind. However uncertain the defendant’s liability or the extent of the plaintiff's losses might be, no case will make it far without some proof of the plaintiff’s injury. (Learn how the nature and extent of injuries can shape a case.)
If the plaintiff's losses ("damages" in legalese) appear to be more than the local small claims court limit (usually around $5,000 to $10,000, depending on the state), most plaintiffs will talk with an attorney. If, after the initial consultation, it appears that the plaintiff might have a case, the attorney may agree to conduct an exploratory investigation, including as to whether or not the defendant has applicable insurance and/or sufficient assets to cover any settlement or judgment. If the consultation and investigation lead the attorney to conclude that the case is viable, a fee agreement will be signed and the attorney-client relationship will be official. (Learn more about how a lawyer decides whether to take a personal injury case.)
After establishing that a legitimate case exists, the plaintiff’s attorney will file a personal injury complaint in the proper civil court. The complaint is the first official document in the case, laying out in very broad detail what the plaintiff is alleging (what the defendant did, how the plaintiff was harmed, etc.).
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 verified, ensuring the defendant cannot later claim to not know about the lawsuit. Along with the complaint, the service papers will tell the defendant the date by which 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, 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 appoint and pay for a lawyer if the defendant has not already hired one. Defense attorneys work at an hourly rate, not under a contingency fee agreement, so if the defendant can afford to pay out-of-pocket, a "losing" case that's headed for early settlement is not a deterrent to the attorney, who is getting paid either way.
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 discovery proceeds, both sides will begin to schedule depositions of the opposing party and witnesses, i.e. question-and-answer sessions under oath.
This process of discovery and intermittent court appearances can take months (even a year or more), with the trial date frequently being pushed back. Eventually, once discovery has concluded, the defendant may ask the judge to throw out the case on "summary judgment," arguing that 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 their efforts 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 at least several days. At trial, the judge or jury will determine if the defendant is at fault for the accident and for the plaintiff's losses, 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 personal injury cases settle before trial. At any point in the process described above, the parties can settle and end the case, even before the complaint is filed. Learn more about the personal injury settlement negotiation process and get tips on getting the best settlement.
If you're thinking about taking a personal injury case to court, it might be time to discuss your situation (and your best course of action) with an attorney. Get tips on finding the right personal injury lawyer for you and your case.