Your personal injury claims begin when someone hurts you because they were not doing what an ordinary person should have been doing. But your personal injury case begins when you first meet with a lawyer. What can you expect? You will probably be asked a lot of questions about your background, your work, how the injury happened, what body parts are injured, how it is affecting you, and whether you have had any other injuries to the same body part before. You will need to sign a fee agreement, and certain other paperwork. You should expect to spend thirty minutes to two hours with the lawyer and his or her staff.
Medical Treatment, part I
This probably started before you even thought about getting a lawyer. In fact, you may have been taken to the emergency room from the scene of the injury, or sought other urgent care. Often, my clients are still treating when I first meet them. If you are still treating, your lawyer will usually want to have you finish treating before trying to resolve your case. This is for several reasons. One, both you and the lawyer want to know just how hurt you are and how much treatment you need. That way, your lawyer can ask for the full medical bills you have incurred as a result of the injury. Two, your lawyer wants to be able to get all of your medical records together. Continued below ...
Medical Treatment, part II
Medical records are the best evidence of how the injury affected you and how you were treated. The insurance company for the person that hurt you is going to need to see those records so they can evaluate how much money to offer you. Sometimes a client is done treating when they arrive at the lawyer's office, but sometimes they are still treating for a long time afterwards. For certain injuries, your lawyer will want to go ahead and take the next step even while you are still in treatment. This can be because he or she is worried about preserving vital evidence, or making sure that the person that hurt you has money available to compensate you.
Usually after your treatment is over, but sometimes before, your lawyer will prepare a demand package for the person that hurt you - or the insurance company that is representing that person. This demand may be a written letter, a phone call, or a live presentation for an adjuster or corporate decision maker. This gets the settlement ball rolling. Usually a demand is made shortly after treatment is completed.
Often, after your lawyer makes a demand the other side will counter with an offer. Usually the offer will be less (sometimes a lot less) than your lawyer's demand. You and the lawyer will discuss the offer and strategies for maximizing your recovery. Usually your lawyer gets permission from you to make a counter demand to the offer. This process of counter-demand and counter-offer can go back and forth several times. Depending on the nature of the case, this negotiation process can take a few minutes, or last weeks to months.
Suit and Service
Eventually the other party will put its best pre-suit offer on the table, sometimes after formal assisted settlement proceedings like mediation. You and your lawyer will talk about the offer and if it is not acceptable you will need to file suit. The lawyer will draw up the necessary papers and have them filed with the court. The court will then issue some kind of document that informs the defendant that he has been sued. In Federal Court this is called a "Summons." In the State Courts it can have several names. For example, in Texas we call it a "Citation." Your lawyer will have the defendant served, which can take a few days to a few weeks depending on where the defendant is located and if the defendant tries to evade service. If the defendant tries to evade service, you lawyer will ask the court to allow the defendant to be served by some other means, like publishing a notice in a local paper or serving a family member of the defendant.
Discovery, part I
Once your lawsuit has been filed and the defendant has been served, the defendant will "answer" the suit. Usually the defendant has around a month to answer, but in some cases it can be as long as several months. The defendant may make certain motions which will require your lawyer to respond. This can add some more time as well. Usually, though, after the answer the parties proceed to discovery. This is the process whereby each party seeks to learn what the other party intends to prove at trial. Your lawyer will seek information from the other side, and they will seek information from you. You will answer most of the discovery with the lawyer's help. Discovery includes written questions called "interrogatories" as well as requests for production of documents, and requests that the other party admit or deny certain facts.
Discovery, part II
Usually the written discovery will be done first and this can take a few months. Sometime during the discovery period your lawyer will likely depose the defendant and his witnesses. Likewise, the defense attorney will depose you. A deposition is a chance for the lawyer to ask questions of a witness, under oath - just like the witness was on the stand in court. A lawyer uses a deposition to find out what the facts of the case are, to support his client's case, and to limit what the witness may say at trial. Discovery also includes identifying experts, who are witnesses that, because of their skill and training, are allowed to testify not about facts, but about their opinions. An example of an expert is a medical doctor who will testify about the nature and extent of a person's injuries, or an accident reconstructionist who can testify about how an accident occurred based on scientific data. The discovery process usually lasts several months and in some cases can take over a year.
During the discovery phase, and even after it, the parties may still discuss possible settlement. Sometimes, they go to mediation or other structured settlement conference. However, if they can't reach an agreement the lawyers will begin preparing the case for trial. During this phase, you'll meet with your lawyer to prepare your trial testimony. Your lawyer will prepare the witnesses he will call, and prepare exhibits to show the judge or jury. Often there will be a formal conference where the parties lawyers and the judge meet to plan how the trial will go. This meeting may be a few weeks before trial, or could even take place on the first day of the trial.
Trial, part I
This is it: the big day. Your lawyer will explain to you what is going on and what to expect. Generally, there will be argument on legal issues, and then the court and the lawyers will work to pick a jury (if the case will be tried to a jury). Your lawyer will begin by explaining to the jury what he intends to prove, and the defense lawyer will do the same. Then your lawyer will begin calling witnesses. These could be eyewitnesses to the accident where you were hurt, your medical providers, experts, even the defendant himself. You will almost certainly be called so the jury can hear how the injury happened and how you have been affected, "straight from the horse's mouth." The defendant will cross-examine your side's witnesses. Then your lawyer will "rest," telling the judge that he has produced his evidence.
Trial, part II
The defense will then produce its evidence, calling witnesses and showing exhibits. Your lawyer will cross examine the defense witnesses. After the defense rests the jury will get instructions on the law. Then your lawyer will argue why you should win. The defense attorney will argue why you should lose. Your lawyer will get to make a final rebuttal to the defense argument and then the case will go to the jury. The jury will deliberate. When they return, you will hear the verdict. Each trial is unique. Some can be over in as little as a day, others may take weeks. By the time you get to trial your lawyer will have a good idea of how long your trial will take and will let you know.
Most cases settle before going to trial and many cases settle before a lawsuit is even filed. Each case is different and it is difficult to predict how long any given case will take. Always feel free to talk to your lawyer and get his or her opinion on how long each phase of the process may last. Hopefully, having this road map has given you some insight on what is going on with your case and what goes into handling a personal injury case, from start to finish.
The above is for general purpose information only and is not meant to be taken as legal advice, nor does this information create any attorney-client relationship. You should always personally speak with a lawyer about the specifics of your case.
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