This is the third of a three-part series on how to navigate personal injury claims. While car accidents are the most common injury-causing incidents, this information also applies to slip and falls, toxic exposures, and product defects. This article provides guidance and tips on the litigation process and preparing for trial. However, this is not legal advice, and you should always contact a lawyer to discuss your specific case. Consultations are free.
Once you have filed an insurance claim and provided the requested information and documents, you will be offered an amount of money to settle your claim. Initial settlement offers are usually much lower than expected, so do not be surprised. Instead, consider the offer to be a starting point. Your attorney will work with the insurance adjuster to find out how they arrived at the figure. Oftentimes, insurers are missing information and documents that support certain damage categories. Your attorney will find out what is missing so you can gather this evidence and provide it to the insurer so they can increase their offer. Sometimes, insurers insist on a low settlement offer, even when the evidence shows that your claim is much more valuable. In this case, you will need to commence litigation.
Litigation begins when you or your attorney files a “complaint” in state or federal court. Before filing a complaint on your behalf, an attorney will need to meet with you to learn about your claim and your injuries and have you execute an attorney-client agreement. A complaint must be filed within the applicable statute of limitations period, which is two years for personal injury and three years for property damage in California. It must be noted that claims against government entities have a much shorter statute of limitations and a special mandatory claims process. If you suspect that a government entity is even partially responsible for your damages, you should immediately consult with an attorney.
Once a complaint is filed with the court, you are called the “plaintiff” and the wrongdoer is the “defendant.” The defendant must respond in writing to your complaint. Most often, the defendant files an “answer” which denies the allegations in your complaint. Sometimes, the defendant files a demurrer or motion to strike, which means that something in your complaint was defective or unsupported by the law. Once this dispute is sorted out and an answer is filed, discovery begins.
Discovery is the process of requesting information and documents from the other parties. While there are many different types of discovery, the most common are written questions called “interrogatories,” document requests, and depositions. Generally, at the beginning of the case, both sides send interrogatories and document requests to each other. The parties have 30 days to answer the interrogatories and produce the requested documents. You will need to work closely with your attorney to answer the defendant’s interrogatories and to get the documents requested. Oftentimes it is not possible to get all this together so quickly and an extension is requested. Answers to interrogatories and document requests must be under oath, so both parties must ensure that they conduct an extensive investigation and provide full and complete responses.
Once the parties conduct initial written discovery, they will want to take depositions. A deposition is a question and answer session that is conducted under oath and in the presence of a court reporter. The first deposition taken is usually the plaintiff’s. Depositions are awkward, so you should prepare with your attorney well in advance to make sure you conduct yourself properly.
Although your attorney is right next to you throughout the deposition, they cannot answer for you, so you . During your deposition, you must keep the basic ground rules in mind:
(1) Speak one at a time so the court reporter can take down every word spoken;
(2) Listen carefully to each question and think before answering;
(3) Keep your answer short and do not explain unless specifically asked.
Most importantly, you are under oath so you must answer questions honestly and completely. If the other side discovers that you were lying or hiding something, they will bring this up in court and ask the jury to find that you are not credible. If the jury agrees, you will likely lose your case and you may be held in contempt of court.
In the months before trial, both sides will retain expert witnesses to support their arguments. The most common expert witnesses in personal injury lawsuits are doctors who evaluate the plaintiff and prepare a report with their findings, diagnoses, and treatment plans. Defendants are permitted to have their own doctor evaluate a plaintiff. These doctors often find ways to show that the injury claimed is unrelated to the incident or that the plaintiff is exaggerating their symptoms. Oftentimes, the parties will also hire an accident reconstruction or biomechanical expert to help the jury understand how the crash occurred and the forces involved in the impact.
Preparing for Trial
In California state courts, trial is often set 12 to 24 months after the lawsuit is filed. While this seems like a long way off, trial preparation should begin as soon as the case is filed. Attorneys must always be brainstorming themes for the case, lines of questioning for witnesses, preferred juror characteristics, and objections to key evidence that will be used at trial.
Most courts require the parties to mediate a case before trial can begin. Mediation is a voluntary process where the parties and their lawyers get together with a retired judge or experienced attorney called the “mediator.” The mediator’s job is to get the parties to settle the case by highlighting each sides’ strengths and weaknesses and offering their thoughts based on their experience. The mediator is not a judge and cannot make any decisions concerning the case. While the attorneys do most of the work at the mediation, the plaintiff must be present because only they can decide whether to settle their case.
Once a settlement is reached, the case is over and the plaintiff cannot come after the defendant for any other damages, even if those damages were unforeseen at the time of the settlement. So, you must be very careful when deciding to settle. That being said, 98% of cases settle before trial, and we have found mediation to be very effective at getting substantial recoveries for our clients.
If the parties are unable to reach a settlement, they will have to go to trial. A plaintiff must be prepared to actively participate in trial preparation and at the trial itself. This usually means that a plaintiff must take off days or even weeks of work so they can spend the day in a courtroom. Personal injury trials are usually very complex and last multiple weeks. At the end of the trial, the jury returns a verdict determining who is at fault for the incident, the percentages of each parties’ fault, and the amount of the plaintiff’s damages. A jury’s verdict is usually a final resolution of the case, but can be appealed. Appeal often lasts another two to four years.
This is not legal advice. You should always contact a lawyer to discuss your specific case. Consultations are free.