Total Steps in a Personal Injury Lawsuit
This is how a typical case for personal injury progresses after the court is involved.
Each personal injury case is unique. However, there are some common landmarks that you can expect to see once you make the decision to file a personal injuries lawsuit.
- Discuss how the plaintiff and defendant can navigate the first steps of a personal injury lawsuit
- Explain how “discovery works”
- Consider the likely outcomes of an injury lawsuit.
(For a complete overview of personal injury cases, please see our timeline for injury claims after an accident.
The Plaintiff is Injured and (Usually), Hires an Attorney
An injury of some sort is the core of any personal injury case. No matter how uncertain the defendant’s liability is or how extensive the plaintiff’s losses may be, no case can progress without proof of the plaintiff’s injury. (Learn the effects of injuries on a case.
Most plaintiffs will speak with an attorney if the plaintiff’s losses (” damage” in legalese), appear to exceed the local small claims court limit, which is usually around $5,000 to $10,000 depending on the state. After the initial consultation, if it seems that the plaintiff may have a case, an attorney might agree to conduct an exploratory inquiry.
which will include determining whether the defendant has any insurance or sufficient assets to pay any settlement or judgment. The attorney-client relationship will officially be established if the investigation and consultation lead to the conclusion that the case can be won. Learn how a lawyer determines whether to accept a case for personal injury.
A Complaint is Filed and served on the Defendant
After the court has established that there is a valid case, the plaintiff’s lawyer will file a personal injuries complaint with the appropriate civil court. The complaint is the first document in a case. It outlines in detail the allegations of the plaintiff (what the defendant did and how the plaintiff was hurt).
The plaintiff’s lawyer will have up to a month to locate the defendant and “serve the complaint” on him. The process of serving the complaint is basically to physically deliver the complaint to the defendant in a manner that can be verified. This ensures that the defendant can’t claim not to have known about the lawsuit. The service papers, which are accompanied by the complaint, will inform the defendant when he or she must appear in court.
A Defendant hires an attorney
The defendant usually has a month to find an attorney before the first court date. It shouldn’t be difficult to find a personal injury defense lawyer willing to accept the case if the defendant has assets and an applicable insurance policy.
If insurance is available, the defendant must inform the insurance company immediately after he or she learns about the lawsuit. This is a strict requirement under insurance policies. If the defendant hasn’t already hired a lawyer, the insurance company will appoint one and pay them. The hourly rate charged by defense attorneys is not subject to a contingency fee agreement. This means that if the defendant is able to afford it, the attorney will not be discouraged from taking on the case.
Pre-Trial, and “Discovery”
Both sides will request evidence and witness information during the “discovery” phase of the pre-trial process. Both sides will appear before the court in the initial stages to tell the judge how the case is progressing, to agree or not to mediation or arbitration, and to set trial dates. As discovery progresses, both sides will schedule depositions for the opposing party as well as witnesses. Question-and-answer sessions under the oath.
The discovery process and the intermittent court appearances can sometimes take several months, even a year. This often causes delays in the trial date. After discovery is complete, the defendant can ask the judge for “summary judgment” to dismiss the case. This means that the plaintiff cannot win the trial. These motions are more common than others.
As the case gets closer to trial, parties will intensify their efforts by engaging in mandatory settlement conferences, making motions to determine which evidence will be permitted at trial, and selecting a jury.
The Trial Phase of a Personal Injured Lawsuit
The trial will start and last for most personal injury cases, at least for several days. The judge or jury will decide if the defendant is at fault for the accident, for the plaintiff’s injuries, and, if so how much the defendant must pay in damages. Either party can appeal the verdict. This process can take anywhere from several months to many years. A losing defendant must pay the damages he or she suffered at trial, appeal, and any other proceedings.
Settlement is the Most Likely Outcome
Most personal injury cases settle before trial. At any point in the above process, parties can agree to settle the case and end it before trial. Find information about personal injury settlement negotiation, and tips for getting the best settlement.
It might be a good idea to talk to an attorney about your case and the best course of action. Find out how to find the best personal injury lawyer for your case.