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Taking Your Lawsuit to TrialA
personal injury case can arise from any number of differentu situations, including medical malpractice, car accident cases, defective
products, slip and falls, or a dog bite. The laws governing personal
injury cases also differ from state to state, which means that it is
imperative that you know the rules for the location w
here you live.
However, there are also a lot of commonalities in the different types of
claims and civil lawsuits based on personal injuries. As such, if you
have been injured and are considering a personal injury lawsuit, it is
helpful to understand the basic steps that the case will involve.
Getting Started
The first thing that happens after an injury occurs is that the injured
victim needs to determine if there is someone to hold liable and, if
so, what law governs that liability. For example, if a person is
injured in a car accident, he needs to determine if the other driver
was at fault and if he can prove the required elements of the car
accident case (that negligence on the part of the other driver led to
injury). The liability rules and exactly what the plaintiff has to prove
in each particular case do differ, so knowing the law in that
particular field is essential. Usually, though, the basic requirements
are that the plaintiff be able to prove the defendant had a duty,
breached it and caused harm. Provided the plaintiff can prove this and
identify the defendant, then the plaintiff can start the steps toward a
personal injury claim.
Settlement Talks
Usually, after the responsible party has been identified, settlement
talks begin. This essentially involves the plaintiff getting the other
side to admit fault and accept responsibility. If the other side does
this, then the defendant (or his insurer) may offer to settle the case
outside of court by providing a single lump sum payment. If the other
side does not offer a fair settlement (or does not offer any type of
settlement at all because they don't believe that they are at fault),
then the plaintiff has a choice to make: whether he wants to bring his
case to court to try to collect damages.
The plaintiff should weigh his options to determine if he can prove his
case and if he believes that he can get a better settlement in court.
If he believes that he can, then he should take the next steps to file a
claim.
Filing a Lawsuit
Once a plaintiff has decided to file a lawsuit, he has to pick the
court where he is going to file it. Usually, this is a civil court in
the jurisdiction where the plaintiff lives, where the defendant lives or
where the accident took place. Most personal injury cases cannot and
are not filed in small claims court because the claims are usually
larger than the limit for a small claims action (which is often around
$5,000, although it does vary by state.)
The court that the plaintiff files in also has to have jurisdiction
over the particular case, which means it must both have the right to
adjudicate a dispute about the subject matter and it must have the right
to impose judgment on the parties. All this means is that a plaintiff
can't file a civil personal injury lawsuit in family court, for
example, and the plaintiff also can't go to a random state and file his
claim. The case has to be filed in a place where the
plaintiff/defendant or accident has sufficient connections.
To actually file the case, the relevant motion or paperwork must be
filed with the appropriate court. Doing this right almost always
requires a lawyer, because there are some very specific things that need
to be included. The plaintiff, for example, must:
- State who the defendant is
- State what the grounds are for the cause of action (i.e., what legal wrong occurred)
- Back up his or her claim with a brief description of the facts and relevant laws
- Provide information on what recourse is being sought
Paperwork that is submitted to the court has to be completed in a
certain way, and the rules of civil procedure that govern trials may be
so specific as to specify what fonts must be used and what size the
margins of papers must be for a claim to be filed. This is why using a
lawyer is often essential here.
Serving the Defendant
After the plaintiff files the initial claim, the defendant is going to
be served with papers. This just means he has to be told that he's
being sued. Usually a process server (who is a sheriff or someone
employed by the court) serves the defendant with papers. The cause of
action is explained to the defendant in those papers and the defendant
is given an opportunity to answer. Sometimes, the defendant will answer
these papers with a complaint of his own called a cross complaint.
The Pre-Trial Phase
After the defendant has been informed of the claim and answered it, the
case enters into a pre-trial phase. This involves a lot of different
things depending on the situation. Usually:
- Initial hearings are scheduled at the courthouse where each side states its basic position
- Initial motions are submitted to the judge were applicable, such as motions for summary judgment (a motion requesting the court throw the case out for lack of a potential provable legal claim) or a motion to suppress evidence
The Discovery Period
During the pre-trial stage, each party must prepare its case against
the other. Sometimes, this means that the parties need access to
information that the other side has. The exact type of information that
may be needed is going to vary by case. For example:
- A plaintiff in a car accident case may need information about the defendant's driving record or about the maintenance records for the defendant's car.
- A plaintiff in a product liability case may need information about the testing that a product underwent before being released on the market.
- A defendant may need information about the specifics of the plaintiff's injuries.
Since so much needed information is possessed by the other side, the
formal discovery period allows for the exchange of this information.
Each side can make requests to the other to obtain any discoverable
information and if the other party does not comply, then the court can
be petitioned to make them. If there is a dispute about whether
information should be turned over (i.e., whether it is discoverable or
not) or whether a request for information is reasonable, the court will
preside over these disputes and make rulings.
Depositions and Interrogatories
During the discovery phase, two common techniques are used in addition
to the exchange of documents. These techniques are necessary to get
information from other people, rather than details contained in
documents and paperwork. The techniques are:
- Depositions, which are formal interviews with witnesses or with involved parties. The person being deposed is sworn in and questioned as he or she would be in front of a judge. Transcripts are kept and if a plaintiff or witness changes his or her story, that can be used against him in court.
- Interrogatories, which are a series of written questions that are sent to involved parties. These are a cheaper and easier way to get information than a deposition, and are equally binding and can be used against parties who change information or provide inaccurate details. While these can be cheaper and easier, they are often less thorough than depositions, because there is no opportunity for follow-up questions