Personal Injury Litigation

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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