THE CIVIL LITIGATION PROCESS
I sometimes get asked, “How does a personal injury lawsuit work?” I’ll try to explain the process in a short summary. If you have any questions please feel free to contact me at 503-546-8812. Also it is worth noting that not every case takes the same procedural path. This is generally the way most personal injury cases develop.
STEPS BEFORE A LAWSUIT IS FILED
Once a person is injured and makes the decision to hire a lawyer, the lawyer will usually first set out to get as many facts as possible. The lawyer will gather police reports, medical records, photos and other evidence, have witnesses interviewed and take other steps necessary to get a full understanding of the case. While this is happening the client may still be getting medical care. The lawyer will be available to make sure and insurance provider such as PIP or health insurance are taking care of the bills that are piling up. If there is no PIP or health insurance or if PIP has exhausted, the lawyer will work with providers to try to get them to hold their bills until the end of the case and NOT send bills to collections.
In some cases it is appropriate to send the evidence that has been collected along with a settlement demand to the defense and give them a chance to resolve the case without a lawsuit. If that step is taken the demand is prepared and sent to the defense. After it is reviewed the defense may want to negotiate.
The lawyer drafts a document called a complaint. It gets filed with the Court in the county where venue is proper. This is generally where the injury causing event occurred or where one of the at-fault parties lives. The lawsuit must be served on the at-fault parties. If they cannot be personally found there are alternative ways to serve them. We send a copy of the complaint to the at-fault party’s insurance company if they have one.
After being served with a complaint the defendant(s) generally have 30 days in which to file an answer. Sometimes this can be longer. The answer indicates whether the defense is contesting liability (fault), causation and/ or damages. Sometimes they raise legal defenses in this document.
Discovery is the process whereby we get information that is not in our possession and the defense has the same opportunity. Documents such as medical records, insurance policies, notes, pictures, recordings, witness contact information and the like are normally exchanged. During this process depositions the parties can take depositions too. A deposition is a hearing that typically takes place in the lawyer’s office where a party or witness is put under oath and asked questions that relate to the lawsuit. When the injured person is being deposed the questions generally fall into these categories: personal background, education and employment, health before the incident, the incident itself, injuries, medical care after the incident, impact of the incident including effect on work life, social life, hobbies and well being. I think it is important that my clients understand the importance of depositions, what they will likely be asked and what mistakes to avoid. When the deposition is over the lawyers may order a copy of the transcript. That transcript can be used against the witness if their answer changes at a later hearing or trial. A sample deposition transcript from a basic auto accident case is linked below.
RESOLUTION OR TRIAL
At any point during the process above the defense can be making offers on the case. We discuss the offers and I give you my opinion about whether they are close enough that we should start seriously negotiating the case or whether I think we should push ahead. Sometimes the defense requests that we mediate the case. A mediation is an informal hearing with an official called a mediator who tries to help broker a settlement. Sometimes a mediation is appropriate and some times it is not. If the case is not able to resolve then the case goes to trial. We would present witnesses and evidence about the incident, injuries and damages. A jury would then make the ultimate decision about the case. If fault is disputed they’d decide who, if anyone, was at fault. If multiple people were at fault, they’d assign a percentage of the total to each at-fault party. If causation is disputed they’d decide whether the incident was a cause of the injury or not. Then the jury, assuming liability and causation were successfully proven, would decide damages. They simply fill out a form with a dollar amount.
There is often a lot more to a civil lawsuit than this. But this is a good example of what a typical civil personal injury case looks like from a procedural perspective.