Anatomy Of A Personal Injury CaseNovember 17, 2016 | by Christine McCarthy
So you get into an accident or slip and fall and you are injured. You visit a hospital or a doctor and then you consult with an attorney. You sign a retainer agreement. What happens next?
For the next several months, you may be continuing to treat with your doctor and following his/her recommendations for treatment. Meanwhile, your attorney contacts the individual who caused the accident or the place where you slipped and fell and his/her insurance carrier and set up a claim for personal injuries. This individual and/or company/entity may become a defendant in a future lawsuit regarding your injuries.
When your attorney can reasonably demonstrate the extent of your injuries, your attorney will file a Complaint on your behalf. In order to do that, your attorney will lay out how your accident was caused, your injuries and why the defendant is negligent, or, responsible for your accident. He/she will send that to the Court in a county that has a relationship to your accident to be filed.
The defendant will then be served with the filed Complaint by utilizing a process server. After service of the Complaint, the defendant has 35 days to file an Answer with the Court and serve that Answer to your attorney. It is very common for a defendant to deny all allegations you put forth in your Complaint. After the complaint is filed, the injured party is known as the Plaintiff, or, the one bringing the lawsuit.
Once a Complaint and Answer have been filed, the lawsuit enters a period known as discovery. This is the period where all parties have the opportunity to find out about each other, how the accident happened, the treatment, your injuries and any other prior or subsequent accidents or injuries you may have suffered.
During that time, you (along with your attorney) will prepare answers to 25 standard questions known as Form A interrogatories. Those interrogatories will ask specific questions about how the accident happened, what injuries you sustained, what type of treatment you underwent, if you lost any money because of this accident and other information about that accident. You will have to produce any documents you possess which are related to this accident or any prior or subsequent accident. The defendant will also have to answer form interrogatories to provide additional information.
Each party also has an opportunity to question any party or witness to the accident. This is known as a deposition. A deposition is simply a question and answer period in which the deponent (the person being asked the question) has the chance to discuss the accident with the other party. The party asking the questions uses this as an opportunity to find out more information about the deponent or the circumstances surrounding the accident.
During that deposition, a court reporter will be present and will be typing down everything that is said. The deponent is put under oath and anything they say can be used in a future proceeding. The testimony given has the same force and effect as if it were done before a judge and a jury.
The defendant may also ask that you undergo an independent medical examination at this time by a doctor of their choosing. This doctor will examine you and issue a report with his/her findings regarding your medical condition and its relationship (or lack thereof) to the accident.
All of these things must be completed during the discovery period. The discovery period is a certain amount of time set by the court. If either party is unable to complete these tasks during the discovery period, they can ask the Court for additional time by filing a Motion. They can do this multiple times, if need be.
Once the discovery period is completed, the Court the sets a date for a mandatory, non-binding arbitration. An arbitration is a preceding which takes place at the courthouse. All sides present their case to a neutral third-party arbitrator. The arbitrator is usually someone with a lot of experience in the field of personal injury. The arbitrator will determine the value of the case and attribute percentage of fault to all parties. This is called an arbitration award. This is done to allow a neutral party to objectively evaluate the case and hopefully encourage a settlement. However, if either party is unhappy with this award, they can file something called a “de novo” and reject the award within 30 days. If this happens, it is as if the arbitration never happened and the matter will proceed to trial.
Sometimes, the court will ask the parties to undergo a settlement conference where a judge will discuss the matter with the parties and attempt to settle the matter. If this is unsuccessful, the matter will proceed to trial and a judge or a jury will decide the matter.
A personal injury lawsuit can be complex and difficult. It is important to choose a personal injury attorney that will keep the lines of communication open at all times to explain the nuances of each step involved.