Millions of injury claims are brought forward every year. A personal injury claim process starts when a private individual called a “plaintiff” files a complaint against another person or entity known as the “defendant,” seeking a form of compensation for an injury allegedly caused by the defendant. Whether you are considering an injury claim due to slip and fall incidents, automobile accidents, medical malpractice, or several other potentially harmful situations, understanding the process of bringing about a claim is crucial.
Below we take a look at all the basic steps to bring about a claim:
Personal Injury Claim and Statutes of Limitations
Essentially, it is essential to file your personal injury lawsuit before the statute of limitations deadline expires. A statute of limitations refers to a law that specifies the duration of time that may pass before a lawsuit is filed. Each state has its own statutes of limitations for different types of cases, and it is crucial to understand the specific deadlines for your state. The statute of limitations clock starts when your personal injury occurs or when you discover your injury. Failure to file a lawsuit before the deadline expires may make it quite challenging to bring a lawsuit in court and recover compensation for your damages.
The Step By Step Guide to Filing a Personal Injury Claim
No personal injury lawsuit is necessarily the same as the other. Besides, each state has its own rules and standards that could affect how the case starts and proceeds. However, here are the basic steps common to most personal injury lawsuits.
Step 1: Filing a Complaint and the Summons
The first document you file in a personal injury lawsuit is called a “complaint.” Almost all cases require the payment of a filing fee, usually ranging from $30-$300 depending on the state. The complaint includes the following crucial information:
- The identities of potential defendants
- Legal basis for the court’s jurisdiction concerning the lawsuit, the legal claims, and the facts surrounding those claims
- The prayer for relief, which explains the actions that you want the court to do, for example, enter judgment against the defendant and the damages you are seeking.
Once you have successfully filed your claim, your next step is to make the defendant aware that you are suing them. You can achieve this through a document known as the “summons.” The summons notifies a potential defendant of the lawsuit while referring them to the attached complaint. Notably, you must file both the complaints and summons with the court. Additionally, both the complaint and summons must be “served” to the defendant in a legal procedure referred to as the “service of process.”
Notably, there are specific state rules that you must follow when serving the defendant. For example, most jurisdictions don’t accept summons that are mailed to complainants. It is crucial that you properly serve your summons, or the court may dismiss your lawsuit based on inadequate process.
Step 2: Response or Answer
Once you serve the complaints and summons, you must allow the defendant to respond within a specified amount of time. This period may vary from one court and jurisdiction to another but usually averages around 21 days.
The defendant’s response to the complaint is legally referred to as the “answer.” The answer typically addresses all the allegations raised in the complaint by admission or denial. The defendant’s answer typically sets forth the course of action the case takes. The defendant may raise legal reasons why they should not be held liable for your damages through a process called a “counterclaim.” Essentially, the counterclaim takes the format of the complaint, and once you receive it, you will have an opportunity to answer.
Step 3: The Discovery
Once the initial pleadings have been filed and dispensed with, both parties begin obtaining evidence from each other. This process is legally referred to as the “discovery.” The purpose of the discovery is to enable both parties to access all the essential information they need to build their case or defense strategy.
Notably, you don’t hand over or receive evidence automatically from each other. The law provides that you request the information you need to build a strong case. Some of the standard tools to use when requesting this information from the other party include:
- Depositions: A deposition refers to a witness’s sworn out of court testimony and is one of the most utilized tools when gathering information in a discovery process. The witness being deposed is referred to as the “deponent.” The deponent must answer the questions orally and under oath. Notably, depositions may not involve the courts as the process is initiated and supervised by the parties. The persons present in a deposition are the deponent, a person qualified to administer the oaths and both parties’ attorneys.
- Interrogatories: Interrogatories refer to a set of questions a party in a lawsuit submits to the other party. Ideally, the responding party is expected to answer the questions under oath and in writing.
- Requests for production: Requests for production borrow similarities from interrogatories. However, instead of asking questions, a party requests the other to avail copies of relevant documents in their possession.
- Request for admission: This involves one party asking the other to admit or deny any material fact
- Physical examinations: A court may authorize a mental or physical examination of the party whose condition is an issue
Step 4: Motions
A motion is an application that either party makes to the court requesting a decision on a specific issue before the trial begins. A motion can have adverse impacts on the trial, defendants, evidence, or testimony. It is the prerogative of the judge to decide the outcome of the motions. Where a ruling on a motion results in a termination of the lawsuit, it is referred to as a “dispositive motion.” Some of the typical motions in personal injury cases include:
- Motion for summary judgment
- Motion for default judgment
- Motion for change of venue
- Motion to compel
Step 5: Pretrial Negotiations
Pretrial negotiations refer to the process where parties bargain a settlement to avoid expensive, time-consuming, and emotionally draining trials. There are three ways out of pretrial negotiations:
Settlement: After the discovery is concluded, the lawyers from both sides generally discuss the settlement. Settlement processes involve written offers and counteroffers or oral conversations between attorneys over the phone. Most claims are settled before the trial begins.
Mediation: If the attorneys fail to reach an agreeable settlement during the negotiations, the court may appoint a neutral third party to help. The third party is legally referred to as a “mediator.” The mediator meets both parties in private to discuss the strengths and weaknesses of their case and assist them in settling.
Arbitration: Parties may also choose a third party referred to as an “arbitrator” to resolve their dispute. In an arbitration process, parties in a dispute provide evidence and argue their cases to the arbitrator in a mini-trial. If parties settle their dispute during arbitration, they usually may not appeal the arbitrator’s ruling to a court.
Step 6: The Trial
If parties fail to settle, the case moves to trial. A trial is a court process in which a plaintiff seeks damages or other remedies from a defendant through a lawsuit. In a civil trial, the judge or jury assess the evidence and listens to both parties’ argument before deciding whether the defendant should be held legally responsible for the damages suffered by the plaintiff. A civil trial has six primary phases:
- Choosing of the jury: Lawyers and judges choose juries through a process called “voir dire.” During this process, the attorneys for both sides and the judge ask potential jurors questions to determine their suitability and competency to serve in a case.
- Opening statements: Opening statements feature attorneys from both sides speaking to the jury and describing the case. The attorneys use this chance to narrate the story of the case and what they hope to prove with the evidence they will present. Notably, legal arguments are prohibited during the opening statement.
- Witness testimony and cross-examination: A cross-examination is where an attorney from the opposing side questions a witness from the other party.
- Closing arguments: Closing arguments are typically the climax of the trial. During this process, attorneys from both sides deliver an emotional plea for justice. Closing arguments present great opportunities for attorneys to pull together all critical aspects of the evidence for the jury with the sole aim of appealing to their reasoning and persuading them to view the case from a certain angle.
- Jury instructions: Jury instructions refers to a set of guidelines that the judge gives to the jury concerning the law that applies to the facts they have found to be true. The main goal of the instructions is to help the jury arrive at a verdict that follows the law of that jurisdiction. These instructions must be given in a manner that enables a layperson to understand and effectively administer justice.
- Jury deliberation and verdict: Jury deliberations refer to the process where a jury in a trial court discusses the court’s findings in private and decides the argument to agree upon. Once the jury receives the jury instructions, they will retire to the jury room and begin the deliberations. In most states, a presiding juror presides over the jurors’ deliberations and votes. During their deliberations, the bailiff guarantees no party or their representatives access to the jury to influence their verdict.
Step 7: A Collection of the Judgment
If you win the lawsuit, the judge or jury may award you money for damages. At this juncture, it is easy to think the hard part is over. However, this may not always be the case. Sometimes the defendant may fail to pay the amount of judgment as directed by the court order. Collecting a judgment from an uncooperative defendant is as challenging as winning a lawsuit in some cases. However, if this happens, your lawyer can help you take additional steps to collect the judgment. These steps include:
- Placing a lien on the debtor’s real property
- Garnishing the debtor’s wages
- Carrying out post-judgment recovery to uncover a debtor’s sources of income and assets
Step 8: The Appeal
Where a party in a dispute doesn’t agree with the court ruling at the trial, they have a right to appeal the decision. As part of the appeal process, each party is accorded opportunities to submit a brief to the appellate court. The appellate judges review the brief and the record of the trial court before releasing their opinion. This opinion will either affirm the verdict by the trial court or reverse it. The court may also order a new trial.
How Long Do Personal Injury Lawsuits Take?
There is no typical personal injury claim, and it may be quite a challenge to predict the length of time your case takes before you receive a settlement or awards for damages. Once your attorney files a lawsuit, the clock starts running before a case makes it to trial. Typically, most states have different pretrial procedures, but for the most part, it usually takes one to two years for a personal injury case to get to trial. The factors that determine the timing of the case include:
- The complexity of the case.
- The number of damages that a plaintiff seeks from the defendant
- The severity of the injuries
- The caseloads in your jurisdiction
- Defendant’s willingness to settle
Injury Lawsuits Alleging Professional Malpractice
Some states require you to file a certificate of merit, affidavit of merit, or an order of proof when filing a lawsuit that concerns an injury suffered due to the negligence of a professional like a doctor. The affidavit of merit requires a sworn statement where an attorney or an expert medical witness narrates that your medical malpractice claim meets specific threshold requirements set by the law.
Get Help from the Professionals
Lawsuits can always be lengthy and complex. If you have been injured and are considering a lawsuit to recover compensation for your damages, the attorneys at Guardian Law Group can help settle your case faster and avoid the consequences of litigation. Contact us today to learn more.