Personal injury cases are civil cases. A civil case involves a dispute between two private parties when one typically seeks some recovery from the other. A civil case differs from a criminal case in that the government files the criminal case, which involves some action that is harmful to society.
A personal injury case usually arises when one party, the defendant, injures another party, the plaintiff. The defendant may be found liable for the harm and required to pay damages to compensate the plaintiff for the harm and losses when the plaintiff shows by a preponderance of the evidence that the defendant caused the accident that injured the plaintiff.
Initial Consultation
If you are harmed through no fault of your own and decide to hire an attorney to represent you throughout your personal injury case, the first step you will take with the attorney is the initial consultation. The initial consultation will help the attorney to decide whether to take or decline your case.
During the initial consultation, the attorney will gather basic, personal information and details of what happened. They will ask you who you’ve been in contact with regarding your accident or injury, including insurance adjusters and others that may have interviewed you. You should tell the attorney if you provided any statement to any other party or representative.
The attorney will likely ask additional questions, some of which you may be hesitant to answer. However, it is imperative that you answer each question honestly and to the best of your ability so the attorney can determine whether you have a case and whether they will represent you.
The attorney may ask you questions regarding any doctor’s appointments and treatments you have undergone and may request that you release your medical records to him or her. Additionally, the attorney will discuss a representation agreement should they decide to take your case. The representation agreement will involve discussing retainers, fees, and court costs that will likely accompany your case.
Commencing a Lawsuit and Initial Pleadings
A lawsuit begins when the plaintiff files a complaint. A complaint is a pleading that provides the details of the plaintiff’s case against the defendant. It provides the court and the defendant with the legal and factual basis for the personal injury claim.
The complaint names the parties involved in the action, states the basis for the court’s jurisdiction, lays out the plaintiff’s claims, provides the facts giving rise to those claims, and demands a judgment through a statement regarding the relief the plaintiff is seeking. Another term for this is demand is a prayer for relief. A prayer for relief may include a specific amount that the plaintiff would like the court to award upon finding liability on the part of the defendant, or it may ask that the court determine an amount at trial.
Occasionally, a complaint may offer facts that the plaintiff heard from others that have helped form a belief that the events within an allegation happened as described. In this situation, the plaintiff may state that they base the allegation in the complaint “upon information and belief.”
In addition to the complaint, the plaintiff must file a summons with the court and properly serve the defendant with a copy of the complaint and a summons via service of process. This act allows the court jurisdiction over the defendant. The summons informs the defendant that the plaintiff is suing them and sets a time in which the defendant must file an answer to the complaint before a judge enters a default judgment against them.
The defendant files the answer and addresses the allegations outlined in the plaintiff’s complaint, typically with “admitted,” “denied,” or “without sufficient knowledge to admit or deny.” The answer will also include any affirmative defenses, including those that the answer must address. Failure of the defendant to address required affirmative defenses will result in their waivers, and the defendant will not be permitted to raise them later.
In addition to filing an answer, the defendant may also file a counterclaim in which they sue the plaintiff, a crossclaim in which they sue a co-party in the same proceeding, or a third party complaint in which they sue a third party. When the defendant sues someone else who may be liable, the lawsuit must arise from the same transaction or occurrence as the original lawsuit.
A defendant may also file a motion to dismiss for different reasons, including a lack of subject matter, the jurisdiction of the court, the plaintiff’s failure to state a claim upon which relief is grantable, and improper venue.
Discovery
Once a lawsuit commences, the discovery process may start.
Discovery is the process of fact-finding and can take the form of written discovery, depositions, and production of documents.
- Written discovery – This type of discovery includes interrogatories. Interrogatories are questions regarding the other party’s view of the facts and claims of the case. They can be in a pre-printed form or be “special” interrogatories (questions specific to the particular case).
- Depositions – A deposition occurs in front of both parties’ attorneys (provided they both have legal representation) and a court reporter. During a deposition, your attorney will ask the defendant questions that they must answer under oath.
- Request for production of documents – A request to produce requires a defendant to produce relevant documents, unless it is overly burdensome, and can include electronically stored information.
A party may also request that the court require submission by the other party of a physical or mental examination when the party’s mental or physical condition is at issue in the particular case.
Remember that you should be completely honest with your attorney during the discovery process, as it is likely that everything will come to light at some point.
Motions
Motions made before trial, when granted, may end a lawsuit before the trial begins. Additionally, the parties can make a motion on an incidental issue whose ruling does not end the lawsuit.
Some common motions made before trial include:
- Motion for summary judgment – A party files this motion when all discovery has been exchanged and, based on the evidence and undisputed facts, judgment is required to be entered for a party.
- Motion for change of venue – When a party believes that the court is not the best location to hear a case, the party can file a motion for change of venue.
- Motion to compel – A motion to compel asks the court to order the opposing party to take some action. This motion typically arises during discovery when a party asks the court to order a party to provide some discovery it previously requested.
Pretrial Negotiations: Settlements and Neutral Third Parties
Pretrial negotiations are attempts by the parties to resolve a case before it goes to trial. A party may pursue a settlement to avoid negative publicity or prevent disclosure of personal or business information. While either party can make a settlement offer anytime, including before the filing of a lawsuit, it typically comes after the discovery process, when each side has had an opportunity to view the evidence.
A settlement is a sum of money agreed upon by both parties (and possibly an insurance company), which the plaintiff receives in exchange for the plaintiff waiving their right to pursue further legal action.
Neutral third parties may come in to conduct mediation or arbitration. During mediation, a mediator will speak with both parties separately to discuss the desired outcome of the case. They will attempt to bring the parties to an agreement regarding a settlement, although they have no power to enforce an agreement.
Arbitration is an adversarial proceeding and is somewhat like a trial. However, certain rules do not apply, like some rules of evidence. Additionally, the parties select the neutral arbitrator to decide which party wins after they argue their cases. The arbitrator’s decision can be legally binding or not legally binding. If the decision is legally binding, the parties must act in accordance with the decision.
Trial
Once both sides have provided discovery and there has been no agreement made during pretrial negotiations, the parties will go to trial.
A trial occurs in multiple stages:
- Jury selection – Jury selection involves the plaintiff’s and defendant’s attorneys evaluating prospective jurors in a process called voir dire. During voir dire, the attorneys will attempt to eliminate or keep prospective jurors they think will help influence the verdict in their favor.
- Opening statements – Opening statements give the attorneys a chance to address the jury and form a first impression of the case. Opening statements begin with the plaintiff’s statement who bears the burden of proof in a civil case. Once the plaintiff gives the opening statement, the defense is permitted to give theirs.
- Presentation of evidence and witness testimony – When presenting evidence, the parties must adhere to the governing rules of evidence. Additionally, during this stage, the parties will call witnesses to the stand to testify under oath. A party conducts a direct examination of the witnesses, which is initial questioning to support the case the party is making. Once the party has no further questions, the adverse party will be permitted to cross-examine the witness.
- Closing arguments – Closing statements are made after the presentation of the evidence and testimony of the witnesses. During closing statements, each party will summarize their cases while repeating the important parts of their arguments and pointing out any inconsistencies in the other party’s argument to the jury.
- Jury deliberation and verdict – After closing arguments, the court will provide instructions to the jury. The jury then retires to the jury room to deliberate or weigh the arguments before voting on a verdict. The jury may or may not be permitted to take exhibitions from the trial into the jury room to assist with deliberations. The jury will then return to the courtroom to deliver the verdict finding for the plaintiff or the defendant. The verdict may also set out the damages the defendant should pay the plaintiff, should the jury find for the plaintiff.
Collecting Your Judgment
If you win a personal injury lawsuit, the defendant may refuse to follow the court order to pay damages or cannot afford to pay the judgment. Should the defendant fail to adhere to the court order, you may need to hire an attorney to collect your judgment.
Depending on your jurisdiction, you may be permitted to conduct post-judgment discovery in which you discover sources of income and assets in possession of the defendant, now called the debtor, who owes you damages. Additionally, you may garnish a percentage of the debtor’s wages, although the law sets the maximum amount of income you may garnish.
Appeal
When a part does not agree with the judgment entered in a personal injury case, they may appeal. During an appeal, each party submits a brief to the appellate court that will review the record of the trial court. When the appellate court reaches a decision, it will either affirm a trial court’s decision or, upon finding an error, reverse and remand the case to the trial court for a new trial.
If you’ve sustained an injury as a result of someone else’s negligence, you should not wait to contact an attorney. Make sure that you prepare before the initial consultation with a personal injury lawyer.
Preparation includes knowing the specific circumstances of your case, including:
- The other party’s negligence that caused an accident
- The other party’s identification, to ensure you seek compensation from the right person or entity,
- Any resulting injuries and their severity
- Your medical expenses and those you will incur in the future
- Any lost income from the inability to work
Lastly, refrain from speaking to any insurance adjusters or answering any questions related to your accident before consulting a personal injury attorney.
