Here are the steps that happen in most lawsuits. Throughout these steps, the attorney should keep clients completely informed about the developments of the case.
You decide to contact a law firm so that they can learn the basic facts about your case. Typically you will be asked to summarize what happened, where, and when. The more information you can have with you for this first contact the better. Specific dates and names can help clarify the strong points of your claim.
An attorney at the firm will conduct an initial review of that information, and decide whether or not it sounds like your case could be viable. If it sounds like your case is worth pursuing, the next step will be to gather all of the records that you don’t already have, and present them to the law firm for review. When a law firm decides not to take a case, this may be for one of several reasons. Sometimes the potential for recover is too small to justify the time and expense you and your attorney would have to invest to bring a suit; in other words, you could wind up digging yourself a hole and owe more money at the end of the case in legal expenses than you could stand to recover from the case itself. There can also be problems with the legal deadline or statute of limitations for your case. Even if a lawsuit does not look like the right way to go, there are still ways to send a message to authorities with oversight over the person who has injured you. We have a good set of resources on our website for this. We call it our “Health Care Advocates Power Kit.”
Once you have your records, an attorney will begin gathering additional facts and data. Such information might include acquiring other medical records, getting statements from witnesses, finding photographs, and consulting with experts in the applicable field. Along with the records you provide, the attorney can use this information to piece together a much more complete picture of your case.
Getting all of this information together can be time-consuming. It is important to get the details right so there are no surprises down the line. Combing through all of the evidence can take several months, or longer depending on the complexity of your case.
If, after careful and thorough review, your case looks viable to the attorneys, and you want to proceed, then your attorney will prepare a retainer agreement for you both to sign. This written contract will set out how much your attorney is paid for representing you in your case. Although the word “retainer” sometimes refers to an up-front payment from the client, personal injury law firms such as Patrick Malone & Associates work on a contingency basis. For more information on how your attorney will be paid, click here.
Making the Claim Official: The Court Complaint
The next step is to notify the other side about the claim.
This happens in one of three ways, depending on the type of case:
- A complaint can be filed directly in court. This is the official start of the lawsuit process. Many more substantial legal cases are started with a complaint rather than any effort to negotiate informally with the defense.
- A “demand letter” may be sent to an insurance claims adjuster, to see if the case can be settled before the lawsuit is filed. (A “demand letter” can also be sent at any later time in the process.)
- An administrative claim is filed with the responsible government agency, if the case is against the federal government. A six-month waiting period then has to pass before the lawsuit can be filed in court.
There is also the possibility that settlement negotiations can begin at this early stage. A settlement means both parties agree that rather than take the case to trial, where there is always some risk that either side may lose the case, the defendant will pay damages to the plaintiff before ever going to court. But settlements can happen at any stage of the process, even after a jury trial.
Discovery and Depositions
After the complaint is filed in court, the next step is to officially “serve” the legal summons and complaint on all defendants. The defendants then have a few weeks to file an “answer” in the court case. Typically, they deny everything and assert various legal defenses (for example: wrong jurisdiction, too late, no legal duty). The court will then assign various deadlines for the rest of the case, including a trial date. (These deadlines typically move around a bit as the case proceeds). One key set of dates that the court will set is for discovery – the period during which each side can request information from the other side. Discovery includes: exchange of key documents between the two sides, written “interrogatory” questions that must be answered under oath, and “depositions.”
When someone is “deposed,” whether a king or a witness in a deposition, they are “taken down.” That’s what the word deposition means. In a court case, a deposition is a “taking down” of a witness’s testimony before trial, by a court reporter who prepares a transcript of every question and every answer, and sometimes also by a video record of the witness on camera. Who asks the questions at a deposition? That depends on the purpose of the deposition. If it’s a “discovery” deposition, intended to find out about the other side’s case, then the questioning starts with the adversary’s attorney asking the questions. The witness’s attorney sits by and makes objections, if necessary, to clarify questions or to oppose something improper in the questioning. But typically the witness’s attorney asks no questions, or only a few at the end of the deposition to clarify any confusion. If the deposition is taken not for discovery but as a substitute for the witness’s appearance at trial, then the questioning proceeds just like at trial. The first questions are asked by whichever side is sponsoring the witness’s testimony, then the other side cross-examines, then there may be “re-direct” questions by the first questioner. Then the video of the entire thing, minus objections which are edited out after the court rules on them, is played at trial as if the witness were in court. Those kinds of “testimony preservation” depositions are typically taken right before trial, if at all. A deposition is a critical event in the case, especially when the person being deposed is the plaintiff or the defendant. We work hard with every client to make sure they are totally prepared for their deposition and give the most accurate, complete and compelling testimony possible.
Motions and Pretrial Conference
Discovery may take several months, or even over a year. When the trial date approaches, attorneys for both parties will usually have a pretrial conference with the judge assigned to preside at trial. This meeting is a chance for the attorneys to work out any unresolved legal disputes, thereby expediting the process of trial itself.
Motions are an important part of the pretrial process. Either side can raise legal issues for the judge to decide. Sometimes these go to the entire case: the defense may move for “summary judgment” seeking to have the whole case thrown out before trial for some fatal flaw. Other times the issues are more narrow: it may be a question of whether a piece of evidence is admissible at trial, or the applicability of another state’s law to a part of the case.
Throughout the pretrial and motions period, the parties may remain open to the possibility of settlement discussions. That depends on the overall strength of the case and the rationality of each side. When the two sides have widely different views of who has the stronger case, or when the defense believes it is highly likely to win at trial, settlement usually fails and the case proceeds to trial.
The average civil trial takes about four days, though serious personal injury cases can often be complex and therefore take more time. The trial is a chance for both sides to present their cases before the court, and will likely involve testimony from many of the same people who were deposed during discovery. The order of proceedings goes like this:
- Jury selection. Most personal injury trials are jury trials (as opposed to bench trials, where the judge rules on the case). A jury is comprised of six to twelve individuals – depending on the jurisdiction – whom the parties agree are fit to hear the case. The jury decides which party to rule in favor of, and in the case of damages, how much to assess. During jury selection, either the judge or the attorneys question potential jurors and exclude anyone who has strong leanings one way or the other, or has a good excuse for not serving as a juror. Both sides then exercise “peremptory strikes,” in which they can knock out a juror for any reason that doesn’t involve something impermissible like racial or sexual discrimination. Many lawyers talk about “picking a jury,” but that is a misnomer in the courts where the attorneys at Patrick Malone and Associates typically practice. In those courts, the selection process gives each side a chance to knock out three or four potential jurors with these peremptory strikes, but the eventual jury that sits is a product of random chance.
- Opening statements. The lawyers outline the case they hope to prove. The plaintiff goes first, followed by the defense. A half hour each is typical.
- Testimony. The plaintiff puts on all its evidence – witnesses, documents, legal “admissions” by the other side. Then the defense puts on its evidence. Finally, the plaintiff has a chance for rebuttal testimony to respond to anything new in the defense case.
- Closing arguments. Each side summarizes the case for the jury: first the plaintiff, then the defense, then the plaintiff gets a final shot called a “rebuttal” argument.
- Jury instructions. Either just before or just after the closing arguments, the judge instructs the jury on the legal framework for the case and the issues the jury must decide.
- Deliberation and verdict. Jurors discuss the case in private and then return a verdict. In the jurisdictions in which we practice, the verdict must be unanimous.
The Burden of Proof for Civil Cases
To find for the plaintiff, the court (whether judge or jury) will look at a “preponderance of the evidence.” This phrase means that there must be more evidence in favor of the plaintiff than the defendant to find for the plaintiff on any issue for which the plaintiff has the “burden of proof.” Typically this is thought of as the scales of justice, in which just a little more weight on one side or the other tips the balance. This “burden of proof” is lower than “beyond a reasonable doubt,” which a prosecutor must prove to put someone in prison in a criminal trial.
“Verdict” literally means “speaking the truth.” But the verdict is not the end of the civil trial process. Whatever the verdict, one of two things may happen. First, the parties may accept the verdict, and if the verdict was in favor of the plaintiff, the defendant will pay the jury’s assessment of damages. Second, one or both sides can appeal the outcome of the case. They may bring post-trial motions asking the trial judge to set aside whatever the jury decided. The next step after post-trial motions is an appeal to a higher court. An appeal is not a reenactment of the trial. Instead, the appellate judges consider one or more issues that the appealing party contends were wrongly decided by the trial court. Depending on the type of alleged error, the appeals court can throw out the verdict entirely, affirm the verdict entirely, or send the case back for another trial.