Unless you have been a party to a lawsuit before, it is difficult to know what to expect when you have been injured in a collision or incident. There is an understandable level of apprehension about the litigation process for victims and their families, particularly when the victim has been seriously injured or killed. Under such circumstances, a lawsuit may be the single most important moment for their future and the future of their family.
The Screening & Investigatory Process
The first step in any lawsuit is to obtain information about the facts of the case and conduct a thorough investigation. This process almost always begins with an initial phone call or Email contact from the client, providing an overview of the case and the injuries sustained. Depending on the facts of the case, the investigatory stage can include:
Gathering and preserving physical evidence
Obtaining photographic/videographic evidence
Hiring experts or investigators
Contacting insurance companies
The investigatory stage can take anywhere from one to six months or more, depending upon the particular facts and circumstances of your case. After the investigatory phase is over, a lawyer usually can make a final determination about whether the claim should be pursued.
Most attorneys engage in settlement negotiations with the responsible party or their insurance company to determine whether a just and reasonable settlement can be obtained without filing a lawsuit. In the settlement negotiation process, the lawyer collects and puts together all of the physical evidence about the collision or incident, documents regarding your damages (including medical bills and lost wages documents) and any necessary expert reports from physicians, economists, accident reconstructionists or others. Once this information is evaluated, a settlement range is determined for your case. A "demand" is then sent to the insurer. The demand sets forth the facts of the case, explains why the other party is responsible, provides documentation and evidence about your damages and injuries, and offers an amount to settle the case. Depending upon the response, negotiations will continue back and forth until either a settlement is obtained or an impasse is reached.
The Litigation Process
Most lawyers moves quickly and aggressively in the filing and prosecution of lawsuits in the event that a fair and just settlement cannot be obtained on your behalf. Generally, lawsuits in state court proceed in the following manner:
Complaint & Answer
The Complaint is the document filed on your behalf which sets forth the allegations about what happened and the damages you have sustained. The lawsuit is generally filed in the county where the act occurred or where defendant resides, although there are some exceptions to this rule. Once filed, the Complaint is personally served on each defendant by the sheriff's department or by a private process server.
The Answer is the documents in which the defendants respond to each allegation contained in the Complaint. If in State, the defendants have twenty days to file an Answer after being served with the Complaint. If Out of State, the defendants have sixty days to file an Answer. Discovery begins once the Answer is served.
Discovery is the phase of litigation in which the parties obtain information, testimony, documents & other evidence from each other and from third parties who have information about the case. In most cases, written discovery is exchanged between the parties; which includes written questions, called interrogatories, and requests for documents. Your assistance in responding to written discovery requests will be required, so it is important that we always maintain accurate contact information and phone numbers for you throughout the litigation.
In addition to written discovery, depositions are taken of the parties, witnesses, experts and others with information about the case. A deposition is a meeting in which the opposing attorney will ask you questions under oath. The questions & your responses will be transcribed by a certified court reporter. Most lawyers will sit down to go over the procedures to prepare you for your deposition beforehand. Discovery generally lasts 9 mos. - 1 year
Depending upon the case, defendants may chose to file certain motions after discovery is complete in an effort convince the Court to dismiss some or all of the claims you have asserted. A motion is a document filed with the Court asking the Court to take some action, such as dismissing a case. Once a motion is filed the party opposing the motion has between six and fourteen days to respond depending on the type of motion. In some instances a hearing is held by the Court to consider the arguments of the parties. Scheduling of the motion is in the complete control of the Court and judge. After motions are heard, the case is generally ready to go to trial.
If the parties believe it would be in their best interest to do so, mediation may be scheduled at any time during the litigation. Mediation is a form of alternative dispute resolution which consists of a meeting between all the parties, their attorneys and a mediator, who is a neutral attorney. The mediator's role is to act as a referee between the parties, and the mediation is a setting in which the parties meet, present their sides of the case, and then discuss the possibility of settlement. Offers and counter-offers are exchanged until either a settlement is reached or until the parties agree to disagree. Mediations are non-binding.
One of the most frequently asked questions by clients is how long it takes to get a case to trial. Unfortunately, there is no simple answer to that question. The caseloads of different courts and different judges vary wildly. In some jurisdictions, it is possible to get a trial date shortly after discovery and motions have been completed. In other courts, it may take many months or a year or more. On average it takes between one year and eighteen months from filing to the start of trial.