After an accident in which you or a loved one are injured, and you have sought medical attention and have hired an attorney to handle your insurance claim, you may be on your way to becoming a plaintiff in a personal injury lawsuit if the insurance company has refused to make a reasonable offer of settlement on your injury claim.
The Petition: In this situation, your attorney will prepare and file a lawsuit on your behalf as the plaintiff, and naming the responsible party or parties and their insurance companies as defendants in a legal document called “Plaintiff’s Original Petition". A Glossary of Personal Injury Claims Terminology is included in Chapter VII at Page 16 of this booklet.
The Answer: After the Petition is served on the defendants, giving them proper legal notice of your lawsuit against them, they will likely hire attorneys to represent them, and will then file a legal document called “Defendant’s Original Answer" with the court’s clerk and will also serve a copy of the Answer on your attorney. The Answer responds to the claims made in the Petition and to some extent indicates what issues that will be litigated.
Written Discovery: During this stage of the lawsuit, a process called “Discovery" will begin. Your attorney will prepare a series of documents which may include “Interrogatories", which are questions to the adverse parties, seeking information about insurance policy amounts and coverage, and other issues relating to the accident; “Requests for Production", which is a list of informational items requested such as copies of insurance policies and other documents, photographs, business records, etc. that your attorney will inspect and utilized as evidence in your case; and “Requests for Admissions", which is a series of statements of fact concerning the issues of your case, to which the adverse party must “admit to" or “deny".
During this time, the other parties’ attorneys will likely prepare the same type of documents and send them to your attorney. You will work very closely with your attorney and his/her support staff to answer the Defendant’s Interrogatories and provide copies of all of the documents requested in the Defendants’ Requests for Production document. The Interrogatories you will be answering may include such detailed questions about 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. Each party will have 30 days in which to provide the other party with responses, unless the Plaintiff’s attorney serves the Discovery documents at the same time as the Petition, in which case the Defendant’s will have 50 days to respond to the documents.
Depositions: After both parties have responded to all Discovery on both sides of the case, “Depositions" may begin to be scheduled. Depositions are a meeting between a “Witness", which would include you as Plaintiff, the Defendant and his/her/their company employees, insurance company employees, etc., the witness’s attorney, the Plaintiff’s attorney and the Defendant’s attorney. Each witness testifies under oath. Depositions are usually videographically and/or stenographically recorded. The Court Reporter recording the deposition testimony will then prepare a written transcript of every word of the Deposition. The answers and statements to questions asked by both Plaintiff’s and Defendant’s attorneys to all witnesses at each deposition can then be used at trial because it is testimony given under oath, just as a witness on “the stand" would give during a hearing.
Defense Medical Examination: After depositions, the Defendants may request your attorney to send you to a doctor of their choice for a defense medical examination. This doctor is someone hired by the Defendants’ insurance company or its attorney, to examine you, write a report, and testify at trial. This doctor is not on your side and is not hired to provide you with medical treatment, only to give his opinion as an “Expert Witness". His or her task is to find things that will help the insurance company. Your attorney will always be by your side at Depositions, and he/she will prepare you for your examination with the Defendant’s Expert Witness doctor (s).
Expert Witnesses: After the defense medical examination, your attorney and the Defendants’ attorney may need to take depositions of the various doctors and other “Expert Witnesses" 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 or accident reconstruction expert, as to their professional opinions about your injury claims. This is not always done, but is a step that happens frequently in more complex litigation of injury claims.
Offer of Settlement: After the discovery process, your attorney and the Defendants’ attorney will each reassess the case on behalf of their respective clients in view of all of the information gathered during Discovery. Your attorney may reevaluate the monetary amount of your claim in the lawsuit; and the Defendants’ attorney may do the same. The Defendants’ attorney may then send a written offer of settlement to your attorney, outlining their proposed monetary settlement for payment of your injuries, medical bills, long-term treatment, pain and suffering, and other elements raised in your lawsuit. At this point, there may be direct negotiations between the Defendants’ attorney and your attorney.
Mediation: If a satisfactory settlement is not reached by the parties, the attorneys will either agree to, or the judge will order, a Mediation. A Mediation is a conference with the Plaintiff, Plaintiff’s attorney, and the Defendants’ and their attorney, and a neutral third party Mediator, who is often an attorney or other legal professional is trained to, and specializes in, listening to both parties’ arguments and reviewing relevant evidence, to help the parties reach an agreed settlement that is acceptable to both. The mediator cannot force anyone to do anything or make any binding “orders" on either party, unlike a judge can in court. Many cases settle during medication, thus avoiding the need and expenses of a trial.
Trial Preparation: At this point, if your case is not settled, your attorney, and the Defendants’ attorney, will each begin preparation of the case for a trial in front of a judge and jury. Your attorney will prepare you for trial by going through your testimony. You will go over the questions that your attorney will ask you at trial and the probable questions the Defendants’ attorney ask you on “Cross Examination". Your attorney and his/her staff will also prepare “Exhibits" for the trial, using photographs, charts and lists of expenses you have incurred, as well as graphics depicting your injuries. Your attorney will also be preparing other witnesses who will testify on your behalf, and will issue “Subpoenas" to these witnesses, which are legal orders to appear and give testimony under oath until such time as they are dismissed by your attorney or the judge.
Jury Voir Dire: At the trial, the proceedings follow a relatively strict order. First, the attorneys will go through a process known as “voir dire", which basically means each side’s attorney will briefly examine the potential witness to determine whether or not they are deemed likely to speak and act truthfully when hearing the evidence at trial. During voir dire, a group of potential jurors is seated near 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.
Trial: Once the jury members are selected to the satisfaction of both Plaintiff’s and Defendants’ attorneys and the judge, the trial will proceed with opening statements. This is when the attorneys for each side can give the jury an outline of what they expect to happen at the trial, and what they expect to prove on behalf of their clients’ cases. Next comes the testimony part of the trial, where you and other witnesses testify under oath, and the deposition transcripts of doctors or unavailable witnesses are given to the jury to consider as evidence. The Plaintiff ‘s attorney will present your case first, and once your attorney “rests" your case, the Defendants’ attorney will present their case. Each witness, including you, 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.
Settlement During Trial: Sometimes during the trial process, the Defendants’ attorney will make another offer of settlement to the Plaintiff, and if that offer is found to be acceptable, the Plaintiff’s attorney will work with the Defendants’ attorney in preparing a “Settlement Agreement" for both parties to sign, and it will be binding on both parties, just as an order of the court would be.
Award and Order: In the end, should Plaintiff be awarded monetary damages, or should the parties reach a settlement, the funds to be paid to Plaintiff will be received by Plaintiff’s attorney on his/her behalf, and all expenses and attorney’s fees will then be deducted in the manner in which the Attorney-Client Agreement for Services directs, and the balance of the awarded money will be issued to the Plaintiff with an itemized billing statement of all deductions. It may take two to three weeks for the final disbursement of Plaintiff’s portion of the awarded money to be completed by your attorney’s law firm accounting office.