THE LITIGATION PROCESS
Ninety-five percent of all personal injury claims are resolved before trial. Experienced attorneys know that the best way to settle a case is to prepare it for trial. In order to do this, attorneys for both parties follow a heavily scripted process in which documents are exchanged, questions are posed, witnesses, including experts, are disclosed, depositions are conducted, and evidence is gathered to build a strong case. This process can be divided into the following categories: the filing of pleadings, the discovery process, the pretrial, conference and the trial.
A. PLEADINGS
Pleadings include a variety of legal documents that state and/or allege the opinions, positions, damages, injuries or theories of law of a party to a lawsuit that are filed with the court. The most common pleadings are:
1. Complaint: A lawsuit is initiated when the plaintiff, or petitioner, serves the initial complaint on the defendant, or respondent. A complaint sets forth the basic elements of a case including what happened and the injuries and damages incurred. It also describes the plaintiff’s allegations of why the defendant is responsible for the plaintiff’s injuries and damages.
2. Answer: The defendant’s attorney has a prescribed amount of time to respond to the plaintiff’s complain in the form of the answer. This is the document where the defendant admits, denies or alleges insufficient information to respond to each allegation of the plaintiff’s complaint.
3. Special Defenses: These are filed with the answer. Special defenses are unique to every personal injury case. The defendant may claim the plaintiff’s injuries were caused by his/her own negligence or that the plaintiff’s claim is barred by the applicable statute of limitations and are defenses to the plaintiff’s claim of action.
4. Counterclaims: If the defendant feels that s/he has a claim against the plaintiff then this claim is filed along with the answer and is known as a counterclaim.
5. Claim for Jury Trial List: This is the point at which the plaintiff acknowledges s/he is ready for trial and advises the court of this fact.
B. DISCOVERY
Typically, discovery is the process by which attorneys for both sides “discover” all of the facts, witnesses and testimony regarding the case. During the discovery process, attorneys for both parties share information about the lawsuit. This process is accomplished through written and verbal questioning as well as through the production of documents and physical examinations. In the majority of personal injury cases, the information gathered will help to convince the parties to reach some sort of out-of-court settlement instead of going through the long, drawn-out process of a trial. There are multiple ways in which attorneys gather evidence:
1. Interrogatories: Interrogatories are written questions sent from one attorney to the other party to be answered to the best of their ability. These questions are answered under oath and must be sent back within a certain amount of time.
2. Request for Production: This document is sent from one attorney to the opposing attorney requesting that documents, pictures, bills, records, reports or other forms of evidence be produced and made available to opposing counsel.
3. Requests for Admission: Parties are permitted to require the other side to admit to certain facts under oath. Requests for admission must be answered under oath within a short time period or will be deemed to be admitted by the other side. These admissions are useful to prove obvious facts so it will not be necessary at trial to introduce additional evidence to prove these already admitted facts.
4. Depositions: Along with written discovery, oral questions may be asked of the parties involved. This takes place out of court and in the form of a deposition, in which the plaintiff, the defendant, a witness, or another person involved in the case is examined and cross-examined by the opposing attorneys, under oath. Depositions allow attorneys to find out what witnesses are going to say in court and their answers can be used to refute, impeach or discredit this witness. Attorneys will often call for the disclosure of the opposing counsel’s expert witnesses so they can be deposed before the beginning of a trial.
5. Independent Medical Examination (IME): In a personal injury case, an important part of a plaintiff’s case will be the testimony of the medical professional(s) who treated him/her. It is this evidence that tells the jury what injuries the plaintiff suffered, how they were incurred, and, in the expert opinion of the medical professional, if those injuries were causally related to the accident involving the parties. The defendant’s insurance carrier will often require that the plaintiff be examined by a doctor of their choosing. This is seen as a chance to refute, discredit, or down play the injuries that the plaintiff’s treating physician indicates the plaintiff suffered and to tarnish the credibility of said physician.
C. THE PRETRIAL CONFERENCE
A pretrial conference is held in private, usually in the judge’s chambers, with the trial judge and opposing counsel. There are several different objectives that can be accomplished during one of these conferences. A status conference, for example, occurs after all pleadings have been filed and is used by the judge to manage upcoming events. For instance, the judge may set dates for further pretrial conferences or set a tentative trial schedule.
A judge may also use the pretrial process to encourage settlement of the matter by acting as an arbitrator who attempts to move both parties closer to an acceptable settlement figure. Generally speaking, a pretrial judge will not serve as the trial judge because of his/her knowledge and involvement in the settlement process. Pretrials are also a forum where the opposing counsel and judge can discuss the case and agree on undisputed facts, or stipulations or can argue disputed issues. These stipulations benefit attorneys because they no longer have to be determined in the trial and might move the case and the attorneys closer to a settlement.
D. THE TRIAL
If the parties cannot settle their case after a pretrial, a judge will set the case down for a trial date. The trial process attempts to ensure that both the plaintiff and defendant receive a fair trial.
The first step in any jury trial is to pick the jury! The selection process, known as voir dire, occurs in the courthouse sometimes before the judge and always with opposing counsel. The attorneys will advise the jury pool of the lawyers they practice with and their potential witnesses to see if anyone has had any prior knowledge or experience with any of those parties. The attorneys, after determining if there are any conflicts regarding witnesses, will then ask the jurors questions in order to ascertain whether they can serve as unbiased interpreters of the facts.
Each attorney has a number of preemptive challenges where a potential juror can be removed from a case without cause. Additionally, each attorney can seek to have a juror removed for cause, which must be decided by the judge.
Once a jury of six is selected, the trial will begin with the opening statements of each side. The attorneys for the plaintiff and defendant use these statements in order to outline their case and theories of law to the jury.
Following the opening statements, the plaintiff’s attorney will call his/her witnesses and introduce evidence. The defendant’s counsel has the opportunity to cross-examine every witness that the plaintiff calls. The plaintiff then may have a chance to conduct a re-direct, followed by the defense’s opportunity for a re-cross.
After the plaintiff calls all of his/her witnesses, counsel for the defendant may move for a directed verdict. This is where the defendant alleges that the evidence and testimony the plaintiff provided has not proved his/her case by the “preponderance of the evidence.” If the judge agrees with the defendant, then the case is decided in the defendant’s favor. Normally, though, this is not the case, and the defendant then has the opportunity to present evidence. This process is very similar to the presentation of the plaintiff’s case. After the defense rests the plaintiff has the ability to call rebuttal witnesses and present rebuttal evidence that refutes or discredits witnesses or evidence presented by the defendant.
After the parties have rested, opposing counsel give their closing arguments. Closing arguments allow the attorneys to review the evidence that was presented to refocus the jury on their version of the case. The plaintiff’s attorney gives his/her summation first, followed by the defendant’s attorney. The plaintiff’s attorney then has the opportunity to give a rebuttal closing argument after the defense’s.
Following closing arguments, the judge will provide the jury with his/her instructions for deliberation. The judge will tell the jurors to base their judgment solely on the evidence provided and the relevant laws to the case. These instructions are referred to as jury charges. Attorneys may request that specific charges be given to the jurors but the eventual decision as to what charges to utilize is left to the judge. When the jury has reached a verdict, it is announced to the court. The judge may accept, reject, or modify the verdict based on his/her interpretation of the case, at which point a judgment is entered.
It is very important to utilize the services of an experienced attorney to help the value of your case.
The above information is only a brief summary of some of the basic items which should be addressed in a personal injury case. There are a great number of other instructions which should be followed in such a case. Not knowing your rights or proceeding without the proper representation could severely prejudice your case.
