HOW YOUR PERSONAL INJURY CASE MOVES THROUGH THE NEW YORK STATE SUPREME COURT
The BeginningYour lawyer prepares your Complaint and files it with the court along with the $210 fee to purchase the index number. The complaint and summons are then served on defendant(s).
Typically, defendant(s) attorney(s) or an insurance adjuster will call your lawyer to ask for an extension of time, beyond the initial 20 days, in which to serve an answer. These extensions are routinely granted and will add at least 30 days to the case progress. The defendant(s) then serves the answer(s) with discovery demands.
Once your attorney has received defendant(s) answer(s), he or she will file a Request for Judicial Intervention with the $90 fee, to request scheduling of a Preliminary Conference ("PC").
The PC and Initial DiscoverySome cases receive electronic discovery orders setting dates so there is no actual PC. But typically a PC is scheduled. Because of reduction in court budgets, the PC date may be set months and months ahead. This adds even more time to the case progress.
In the meantime, your attorney should be completing your response to demand for a Bill of Particulars, which adds details to the complaint, including the statutes and regulations your claims rely on and more factual detail about your claims like the injuries you suffered and medical treatment received. The parties might also be exchanging documents and your attorney will be providing the other side with medical authorizations so that defendant(s) can access the records of the medical providers who treated you.
Your attorney might also be communicating with defense counsel or an insurance adjuster for an early resolution of the case, if the circumstances are right.
Discovery generally and timingDiscovery or disclosure is how each party learns about the substance of the other's case. Do the facts support the legal theory or defense? What do the experts have to say for each side? Discovery involves the exchange of documents and information and conducting depositions, and usually takes one to two years. How quickly it moves depends upon: the case complexity; the amount of documents needed to be exchanged including their accessibility; whether the parties exchange documents and produce deposition witnesses according schedule; how aggressive the judge is in pushing along his or her cases; and the attorneys' schedules.
After initial scheduling, status or compliance conferences are held every few months so that the court can monitor the discovery progress. These conferences result in agreements between the parties that are approved by the court and referred to as compliance conference orders. There generally is no penalty for not meeting the schedule so this adds much more time.
Deposition and Medical Exam(s)Your first real contact with your case will likely be your deposition, also called an examination before trial (EBT). An EBT is an interview under oath by defendant(s)' attorney(s). A court reporter will take down or record everything that is said by you and the attorneys unless any attorney makes a statement "off the record."
Your attorney will prep you for your EBT in advance, including explaining the rules of the game. Prep time depends upon the attorney.
Court rules require that the EBT proceed with a minimum of interruptions by the attorneys but we do fight and your attorney will do what he or she thinks is correct to protect your interests.
As your lawsuit involves physical injuries, defendant(s) expert physician is allowed to examine you in his or her office. This called an Independent Medical Exam (IME), but it is certainly not independent because it is by defendant(s) expert(s). Depending on your injuries, there may be several IMEs by different specialists.
To the Trial CalendarAt discovery completion, your attorney must file a Note of Issue ("NOI") with a fee, $90 for a jury trial. The NOI signals that your case is ready for the trial calendar.
Within a limited time after the NOI filing, defendant(s) may make a summary judgment motion to have your case or some issues thrown out. The completion of all parties' motion papers and judge's decision on the motion will add at least six months to your case progress.
If your case survives a summary judgment motion, it will move slowly but surely toward jury selection. Some counties first require mediation. In mediation,the court mediator evaluates the parties' legal claims, evidence and demands and tries his or her best to get them to settle. Typically only the attorneys attend the mediation but the parties are required to at least be available by telephone.
If the mediation fails, your case will be scheduled for jury selection in a few months.
Jury SelectionOn a certain date, your case will be called for jury selection before the trial assignment judge. But this rarely means that the attorneys will be sent out to pick a jury on that date. Expert witnesses may be difficult to schedule and attorneys have their own scheduling conflicts like other jury trials. There may also be too many older cases on the jury selection list ahead of yours and a limited number of trial judges.
After repeated jury selection appearances, six months may pass by before the day the attorneys are actually allowed to pick a jury. And in at least one county, even once a jury is selected, weeks pass by before it is called back to attend the actual trial because there are no available trial judges.
Once the trial judge is assigned, the trial will usually begin within a few days to a week, depending on the judge's schedule and schedules of expert witnesses.
TrialIn a sense, having to go to trial is a failure because the parties were not able to reach a reasonable settlement. (Books could be written about settlement and negotiation strategies). But here you are. Trial will be stressful for you and your attorney. How long the trial takes depends on many factors including how complex the issues are, the quantity of evidence (documents and number of witnesses), and the judge's and witnesses' schedules. The judge's schedule is the most important factor, and a case that should take a few days or a week could stretch out to weeks and weeks.
Sorry you didn't settle before or at the beginning of trial? Well sometimes, settlement is just impossible due to unreasonable positions taken by you and/or defendant(s) or their insurance carrier(s). But make the best of it, keep an open mind about settlement, and good luck.