If it appears as if your attorney and the other side are going to be unable to reach a settlement agreement without taking your personal injury case to court, the next step is litigation. Your attorney is going to have to file a lawsuit against the at-fault party.
You may be wondering what comes next, and what you must do. Below are the major steps and documents that must be filed in a lawsuit. Your lawyer will guide you through every step of the process.
These steps are mostly the same in all 50 states and in federal court. The documents may look slightly different because state has its own rules of civil procedure and ways of drafting documents, but the steps are the same.
This first document in every single lawsuit is called a complaint. In it, the plaintiff lists the facts of the case as they are known at the time and how those facts make up the tort her or she is suing for.
In a personal injury claim the tort is usually negligence. (link to negligence article here) The plaintiff would to have to assert that the
- The defendant driver owned plaintiff driver a duty of care because all drives owe a duty of care.
- Defendant breached that duty of care when he hit Plaintiff
- Defendant was negligent because he failed to keep a proper lookout
- Plaintiff was injured.
- Defendant was responsible
The complaint also has to list a prayer for relief in which the plaintiff asks the court for what he or she wants in damages.
Next, the defendant will respond to the complaint usually by denying everything or filing a counterclaim. If the defendant does not respond to the complaint, the plaintiff can move for a default judgment, but that does not usually happen in personal injury cases.
Discovery is the evidence phase of litigation. This is the longest part of the lawsuit. Each party will go back and forth trying to figure out what the other party knows and can prove. There are three main types of discovery.
Each party will ask for documents. That includes accidents reports, medical bills, medical records, photographs, and anything else. Sometimes lawyers bog each other down with documents as a litigation strategy, and lower-level attorneys let burdened with the dreaded task of document review.
In insurance cases and those dealing with medical expenses, expert witnesses are key, they explain how the accident happened, if the accident could have caused certain injuries, and if the injuries should have healed by the time of trial or not. In complex personal injury matters each side can have several expert witnesses
Depositions are out-of-court, on-the-record statements taken by the attorneys of witnesses before trial. Expert witnesses and plaintiffs usually have to give one before trial. At trial, the witness testimony is almost always compared to the deposition to make sure the witness is telling the truth or to trip up the witness. It also a good way, for the attorneys to discover what exactly happened during the accident.
The next state of litigation is the pre-trial motion stage. Both sides are trying to set the boundaries of the playing field for trial. They may try to avoid trial all together by filing a motion for summary judgment. They may try to restrict what pieces of evidence can before a judge. Once those motions have all been decided, it is time to prepare for trial.
It is much cheaper and easier to settle a case than it is to take it all the way through to trial. Many cases, settle in the weeks before trial. All the cards are on the table. Each side has seen all the evidence. Each side knows about all the witnesses.
Note: There is no such thing as a surprise witness. That is something they make up for television. All the subpoenas are sent out before trial, and they are sent to both sides.
I have seen many cases settle on the courthouse steps. That being said, sometimes a case has just gotten too nasty, and the parties are in to for too much money that nothing can stop them now. If the case has reached that point, there will be a trial, not like the ones you have seen on television, but a tedious, long trial. Do not worry about what to do. Just listen to your lawyer. After the trial hopefully you get a verdict, and everything is over.
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