Personal Injury Legal Process Explained

There is enough information surrounding the process of filing and litigating a lawsuit to fill many, many volumes of books. (Believe me, I know. I have several of them in my office.) However, in the interest of time and to avoid boring you to tears, I will condense the information down to the key components of the process.

Let me also point out that when I use the phrase 'personal injury,' I use the phrase in the general sense, which includes any case involving auto accidents, slip and fall, medical malpractice, wrongful death, and the like. For a more thorough discussion on exactly what a 'personal injury' case is, see my Library Article entitled What is a Personal Injury Case.

First, please remember, just because you hire an attorney doesn’t mean you will end up in court. The vast majority of personal injury cases settle without the necessity of filing a lawsuit. Even if a lawsuit is filed, it doesn’t mean that it will wind up in court. The majority of cases filed settle before getting to a jury. Believe it or not, a case can even settle once a jury has been sat. That being said, if you do enter a lawsuit, here is what to expect.

A lawsuit is initiated by a complaint. This document spells out how someone was injured, who injured them, and why this person is now entitled to a monetary recovery. The person filing the lawsuit is a plaintiff. The person who is getting sued is the defendant. Once the lawsuit is filed it must be served on the defendant. (This is not nearly as easy as it may sound since people move so much these days) Service is the process by which the lawsuit is given to the defendant.

Once service is made, the defendant has a certain number of days to answer. In his or her answer, the defendant will either admit or deny what the plaintiff alleged in his or her complaint.

After the answer is filed, the parties will engage in discovery. Discovery is the process by which the parties will exchange information about each other. This information exchange will include much of the parties’ medical and personal histories, each party’s version of the incident, as well as the names of witnesses to the incident or injury. This information exchange is conducted primarily via written questions (interrogatories) and oral depositions. The discovery phase can take anywhere from six months to several years depending on the size of the case and the amount of information.

The discovery phase is fairly exhaustive. Much of your personal information will be combed through. The defendant will be permitted access to your medical and work history, including your income records. You may have to give a deposition under oath and you may be required to submit to a medical examination by a physician of the defendant's choosing.

Once discovery is concluded, defendants typically try to file motions to get themselves out of the case. These motions are called motions for summary judgment.

Assuming the defendant cannot escape the case via summary judgment, the case will most likely be scheduled for mediation. Mediation is required in many jurisdictions. During mediation the parties present their case to an impartial mediator who attempts to broker a settlement between the parties. If the mediation is not succesful, you will then proceed to trial.

Most have probably seen enough movies or TV shows to have a general understanding of the trial itself. However, let me caution you that it is not nearly as exciting as it is made to seem on T.V. Witnesses will be questioned and re-questioned, many of the documents turned over during discovery will be admitted and argued over, and at the end of the day the jury will retire to reach its verdict. Trials can take anywhere from hours to weeks to months. You as the plaintiff will be required to sit through all of this.

It is an arduous process, to be sure. And it is absolutely imperative that you have an attorney who is good in the courtroom and who has real courtroom experience. For you to maximize your recovery your attorney MUST be able persuade the jury. If your lawyer is nervous, fumbling through papers, or unprepared the battle will be over before it begins. Not everyone is cut out for court work. Many attorneys get very nervous at the thought of entering a courtroom. If your case has the potential to go to trial, who you hire as your lawyer can absolutely make or break your case.