Anatomy of a Personal Injury Lawsuit
The insurance company has refused to make a reasonable offer of settlement on your injury claim. We have filed suit on your behalf. We have sued the responsible people and their insurance companies with a document called a Summons and Complaint. The question then is – what happens next?
After the papers are served on the defendants and their insurance companies, they hire attorneys to represent them and to serve us with a document called an Answer. The Answer responds to the claims we made in the Complaint and to some extent indicates what issues we are going to be fighting about. Usually at this stage of a lawsuit, the defense attorneys send written questions called Interrogatories. These can be detailed questions covering your personal history, your employment history, your medical history, what injuries you claim in the lawsuit, a list of your bills, who has paid your bills and other kinds of detailed questions. We will need your help in answering these questions. At this point, we may also send Interrogatories to the defendants and they would have to go through the same process.
After this flurry of paperwork, the next step is taking depositions of you and the defendants and any key witnesses. These are called discovery depositions. This gives the opposing attorney the opportunity to ask questions under oath. There are several purposes for the depositions. One is to find out what a person would say at trial. Another purpose is to find out information that was not covered in the interrogatories. A third purpose of depositions is to size up the person in terms of how they will be received by the jury, in other words will the jury like them or will the jury be turned off by them, things like that.
After depositions, the defendants may choose to send you to a doctor of their choice for a defense medical examination. This doctor is someone hired by the insurance company or the insurance company attorney to examine you, write a report, and testify at trial if need be. This doctor is not on your side and is not going to treat you. His or her task is to find things that will help the insurance company. When that time arrives, we will prepare you for the independent examination just like we will prepare you your deposition.
After the defense medical examination, the attorneys may need to take depositions of the various doctors and other experts involved in the case. This is done if there is some question about exactly what the doctor would testify to at trial or an engineer as to his opinions on your claims. This is not always done, but is a step that happens frequently.
After the discovery process, the defense has reevaluated your claim. What usually happens is that the defense attorney sends a detailed report to the insurance company and the insurance company decides what amount of money they are willing to offer to settle your case. At this point, there may be direct negotiations between the defense attorney and your attorney. What often happens is that the parties agree to a mediation. A mediation is where the two sides sit down with a neutral third party whose job it is to try to get the case settled. The mediator cannot force anyone to do anything. The mediator cannot force you to accept an offer and he or she cannot force the insurance company to make an offer. It has been our experience that many cases settle at mediation.
If the case does not settle then we commence preparation for trial. We prepare you by going through your testimony. We will go through the questions that we will ask you at trial and try to give you an idea as to what kind of questions the defense attorney will ask you on cross examination. If a witness or a doctor is unable to come to trial to testify we will make arrangements to take an evidentiary deposition that can be either read or shown to the jury during trial. We will also be preparing exhibits such as photographs or lists of expenses and preparing other witnesses and if need be issuing subpoenas to make sure the witnesses attend the trial.
At the trial, the proceedings follow a relatively strict order. The first thing that happens at trial is picking a jury. A group of potential jurors is seated up in the front of the courtroom and then the judge asks them questions to see if there is some reason why they cannot sit through the trial. Then attorneys for both sides are allowed to ask questions of the jury. This process is called voir dire. Once the voir dire process is done and the jury picked, then the trial proceeds to opening statements. This is when attorneys for each side can give the jury an outline of what they expect to happen at the trial, what they expect to prove. Then comes the testimony part of the trial where you and other witnesses testify, depositions of doctors or unavailable witnesses are given to the jury. You as plaintiff get to present your case first and then the defense gets to present their case. Each witness can be subject to both direct examination and cross examination. After the testimony, attorneys for each side get to give closing arguments to tell the jury their view of the evidence and what the jury should do on their verdict. The judge gives the jury written instructions on what the law is to guide them on the case and then the jury retires to reach a verdict.
The verdict contains questions for the jury to answer. These include who is at fault and how much and how much money should be awarded for various portions of your claim. Once the jury reaches a verdict and all the questions are answered, the jury comes back into the courtroom and the judge will read the verdict in open court.