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17 Feb

Personal Injury Lawsuit Step by Step

The Steps of a Personal Injury Lawsuit

Here is how a typical personal injury case progresses once the courts are involved. Every personal injury case is unique, but there are a few common litigation landmarks you can expect to encounter once you make the decision to file a personal injury lawsuit. This article will be discussing:

  1. How plaintiffs and defendant navigate the first steps of a personal injury lawsuit
  2. How “Discovery” works.
  3. What are likely outcomes after an injury lawsuit is taken to court.

The Plaintiff is Injured and Hires an Attorney

At the heart of any legitimate personal injury case is of course, an injury of some kind. However uncertain the defendants liability and the extent of the plaintiffs losses. No case will make it very far without proof of the plaintiffs injuries. (Cannot be faked)

If the plaintiff’s losses appear more than the local claims court limit ($5,000-$10,000), most plaintiffs will talk with an attorney. If after the initial consultation it appears there might be a case, the attorney will agree to conduct exploratory investigation, including as to whether or not the defendant has applicable insurance and or suffuicient assets to cover any settlement. If the consultation and investigation led by the attorney conclude that the case is pursuable, a fee agreement will be signed and the confidential attorney-client relationship is official.

A Complaint is Filed and Served on the Defendant

After establishing that a legitimate case exists, the plaintiff’s attorney will file a personal injury complaint in the proper civil court. The complaint is the first official document in the case, laying out in very broad detail what the plaintiff is alleging (what the defendant did, how the plaintiff was harmed, etc.)

After the complaint is filed, the plaintiff’s attorney will have a month or more to locate the defendant and “serve” the complaint to him or her. Serving the complaint basically means physically delivering a complaint to the defendant in a way that can be verified, ensuring the defendant is unable to later claim to have not known about the lawsuit. Along with the complaint, the service papers will tell the defendant the date by which they must appear in court.

The Defendant Hires an Attorney

The defendant will typically have a month or more to be able to find an attorney before the first court date. If the defendant has assets or an applicable insurance policy, finding a personal injury defense attorney willing to take their case should not be hard.

If insurance applies, the defendant must notify the insurance company as soon as he or she knows about the lawsuit, (a strict requirement in insurance policies). The insurance company will then appoint and pay for a lawyer if the defendant has not already hired one. Defense attorneys work at an hourly rate, not under a contingency fee agreement, so if the defendant cannot afford to pay out of pocket, even a “losing” case that’s headed for an early settlement is not a deterrent to the attorney, they are getting paid either way hourly. 

Pre-Trial and Discovery

In the pretrial process, both sides will ask each other for evidence and witness information in a phase called discovery. At the early stages, both sides will also appear in court to inform the judge of how the case is proceeding, to agree or not to agree to mediation or arbitration, and set a final trial date. As discovery proceeds, both sides will begin to schedule depositions of the opposing party and witnesses, questioning them under oath.

This process of discovery and intermittent court appearances can take months or even years, with the trial date frequently being pushed back. Eventually, once discovery has concluded, the defendant may ask the judge to throw out the case on “summary judgment,” arguing that the plaintiff could not possibly win the case at trial.

As the case moves closer to trial, the parties will significantly ramp up their efforts as they engage in mandatory settlement conferences, making motions to determine what evidence will be allowed at trial, selecting a jury, etc.

The Trial Phase of a Personal Injury Lawsuit

Finally, the trial will begin and for typical personal injury cases it will last several days. At trial, the judge or jury will determine if the defendant is at fault for the accident and for the plaintiff’s losses, and if so, how much the defendant is required to pay out in damages. After trial, either party can initiate an appeals process that can last several months to several years. After the appeals process has been exhausted, a losing defendant will be required to pay the damages established at trial. 

Settlement is the Most Likely Outcome

Most personal injury cases settle before they reach trial. At any point in the process above, the parties can settle and end the case, even before the complaint is filed. If you have more questions, concerns or want to get in contact with a personal injury attorney for a FREE consultation call Tompkins Selph & Associates at (614)-453-0971.

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