Tag: Legal claims

What Is the Process for Bringing About a Claim?

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.

Understanding Statutes of limitations

A recent survey by the Institute for the Advancement of the American Legal System (IAALS) reveals more than 100 million cases are filed each year in state trial courts, with about 400,000 cases filed in federal trial courts. If you have been injured and want to sue to recover the damages from the party responsible, you need to be aware of statutes of limitations or time frames placed at both the state and federal levels. This guide provides all essential information on the statute of limitations and how they impact your case.

What Is a Statute of Limitations?

A statute of limitations refers to a law that establishes the amount of time that conflicting parties have to commence litigation from the time of an alleged offense, whether criminal or civil cases. The length of time the statute allows for the plaintiff to bring legal action against the defender varies from one state to another and the nature of the offences. While Rhode Island provides the most lenient statutes of limitations spanning ten years for most cases, Louisiana has the shortest time frame for legal action, which is only one year except in cases related to contract law.

What Are the Purposes of Statutes of Limitations?

There are three reasons why statutes of limitations are essential. These include:

  • Ensure reasonable diligence: Statutes of limitations guarantee lawsuits are dealt with promptly. If you intend to file a lawsuit against another person for an injury or claim, you should pursue the lawsuit within reasonable diligence. This means that you should file the lawsuit as soon as is reasonably possible. 
  • Preserve facts and evidence: People’s memories fade and become less reliable over time. Statutes of limitations ensure the facts surrounding the lawsuits don’t become stale or unclear. Where the evidence of a case is based on a person’s memory, waiting for too long before one initiates a lawsuit may result in memory loss, conflicting testimony, and inaccuracies. Additionally, a person holding critical information may forget the facts, become incapacitated, or pass away if you wait for too long to file a lawsuit.
  • Prevents malicious lawsuits: Statutes of limitations also prevent people from filing long, drawn-out lawsuits on stale claims merely for harassment purposes.

Common Statutes of Limitations in Civil Cases

If your case falls under the following categories, you will likely be subjected to a statute of limitations. It is crucial to investigate both at the state and federal levels to establish the statute’s duration and how it specifically applies to you. Common statutes in civil law include:

  • Personal injury due to negligence or intentional wrongdoing: The statute of limitations in personal injury cases ranges from as short as one year to as long as six years, depending on the state.
  • Breach of a written or oral contract: Written contracts generally have a longer statute of limitations, whereas oral contracts will have shorter limitation periods. Most states have in place a statute of limitations ranging between 3 to 15 years for a breach of contract.
  • Property damage from negligence or intentional wrongdoing: In most states, the statute of limitations on property damage claims is three years.
  • Debts: In most states, the statutes of limitations for long-drawn debts fall in the three to six-year range. However, this may extend for a longer period in some jurisdictions, depending on the type of debt.
  • Medical malpractice: In most states, medical malpractice claims have a statute of limitations of three years. However, if the medical malpractice case involves the minor, the lawsuit must be commenced within three years of the alleged wrongful act or if the minor is under the age of six, before their eighth birthday.
  • Libel and slander: For most states, the statute of limitations for defamation suits is one to three years, depending on the state.
  • Fraud and misrepresentations: The fraud and the breach of fiduciary duty statute of limitations are generally four years. However, this can extend depending on the nature of the case and the jurisdiction.

Do Statutes of Limitations Apply to Criminal Cases?

Criminal offenses can also have statutes of limitations. However, cases related to severe crimes, such a murder, don’t have a maximum period under a statute of limitations. Some states also remove limitations of sex crimes involving juveniles or violent crimes like arson or kidnapping. Additionally, under the International Law, crimes against humanity, war crimes, and genocide don’t have a statute of limitations, in accordance with Article 29 of the Rome Statute of the International Criminal Court and the Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes.

When Does the Statute of Limitations Clock Start Running and How Does It Affect My Case?

Essentially, the clock starts running on the date the crimes are committed. Should the time limit expire before criminal proceedings begin, your claim may be denied. Also, waiting too long to file a lawsuit may make it hard for you to recover damages for your losses and injuries. However, for several states, the statute of limitations clock can be paused or tolled under some special circumstances. This means that the “clock” might not start running until the said issue is resolved. 

 What Happens If a Prosecutor Charges a Case Whose Statute of Limitation Periods Has Run Out?

Judges typically don’t take it upon themselves to review cases for possible deadline issues. Ideally, if the defendant doesn’t raise the limitations problems with the judge, the courts can allow a stale case to proceed. It is up to the defendants or their attorneys to raise the statute of limitations issue via a process referred to as “affirmative defense.” Affirmative defense allows the defendant to petition the court for dismissal of a case due to a violation of the statute of limitations. 

Can the Statute of Limitations Clock Be Paused or Tolled?

Some circumstances allow for filing a personal injury suit even when the statute of limitations that applies to your case has lapsed. Some of the special circumstances that allow for the pausing or tolling of the limitations clock include:

Discovery Rule

The discovery rule is one of the few legal exceptions to statutes of limitations. Under the discovery rule, the statute of limitations for a cause of action does not begin to run until the injured party discovers an injury. This rule is one of the most effective tools used to suspend or toll the statute of limitations and ensure the clock won’t run until when an injury was discovered, rather than when it happened. However, even when the discovery rule applies, you should keep in mind there could be other bigger deadlines beyond which filing a lawsuit is prohibited.

Injured Minors

Personal injury claims typically have a two-year statute of limitations. However, most states allow for injured minors to reach 18 before the statute of limitations laws start applying. 

Out of the state

Most states have legislation that allows for statutes of limitations to be tolled when a defendant is absent from the state. If the cause of action accrues and begins to run and the defendant leaves the state while the limitations period is running and before it expires, the clock is suspended. 

Fraudulent Concealment

Statutes of limitations may also be tolled in scenarios where there are fraudulent concealments. Fraudulent concealment may occur if a defendant engages in a misleading, deceptive, or contrived action to prevent a plaintiff from recognizing a possible cause of action. This scenario can occur if the defendant fakes documents or lies to the plaintiff, intending to cause them to be unaware of the cause of action to take.


Statute of limitations could also be suspended due to disability that impairs a person from bringing forth a cause of action. Some specific examples of disability include:

  • Where a victim may be a minor and may not be legally permitted to bring forth a case until he or she is an adult
  • If a person has a medical condition such as cancer that makes him or her not competent to bring forth a cause of action
  • If a person filed bankruptcy and may not be able to recover

Legally Insane

In most states, the legal defense of insanity law means that a defendant cannot be found guilty of a crime if they were legally insane at the time they committed the crime. Once the tolling condition related to legal insanity ends, the statute of limitations begins to run.

What Is a Tolling Agreement and Why Is It Important?

Before you file a suit or initiate arbitrations, consider a crucial legal tool called a tolling agreement. A tolling agreement refers to written agreements that both parties to potential lawsuit signs and which effectively suspend the statute of limitations for an agreed amount of time. With the limitation period suspended, the parties are accorded enough time for fruitful negotiation and settlement of the dispute. 

Some of the advantages that come with temporarily suspending the statute of limitation include:

Encourages Settling of the Case

A tolling agreement establishes an agreed deadline for parties to negotiate before the plaintiff file a suit to enforce their legal rights. Because both parties probably want to avoid trial, a tolling agreement puts pressure on both sides to settle the dispute.

Increases the Plaintiff’s Leverage

The threat of eventual litigation is a looming shadow that makes a tolling agreement such an effective tool. Potential plaintiffs can leverage this tool as an advantage by capitalizing on the defendant’s anxiety to settle for a reasonable amount that covers their damages.

Avoid Litigations Costs

In most cases, the anticipated economic costs of civil litigation cause a potential plaintiff to avoid acting on their rights. Defendants too are attentive to potential litigation costs, especially where they are likely to be held liable for damages suffered by the plaintiff. The mutual anxiety helps push parties to formally settle the matter.  

Allows More Time to Think

The tolling agreement typically states the period that parties wish to suspend the statute of limitations. The buffer period allows both parties to think calmly on how best to reach a settlement. A plaintiff is typically accorded more time to consider their claim’s strengths and weaknesses. Similarly, the defendant is also given more time to build a solid defense or negotiate a resolution.

What Happens If I Never Know About the Injury Until After the Statute of Limitations Passed?

Some injuries may fail to manifest for weeks, months, or even years. If you discover the injury after the statute of limitations has passed, you may still file a lawsuit based on the delayed discovery rule. Delayed discovery is common in medical malpractice cases and several other types of personal injury lawsuits and provides for a longer statute of limitations in the following situations:

  • If the plaintiff is not aware of the facts, that would have caused them to suspect they had suffered harm due to someone else’s negligence.
  • If reasonable and diligent investigations would not have discovered a harmful product or situation contributed to the plaintiff’s harm.

Can I Do Anything After the Statutes of Limitations Have Passed?

If the statutes of limitations have passed, there could be other ways to seek compensation for your damages, which may include filing a claim under an alternative cause of action with a longer statute of limitations. Additionally, the statute of limitations could also be open if it tolled based on the victim’s age, the absence of the defendant from the state, or if the defendant was imprisoned or declared legally insane. 

Talk to your personal injury attorney at Guardian Law Group about the statute of limitations in your case to make sure the claim is filed on time. Our personal injury lawyers may also be able to identify any exceptions to an expired statute of limitations.

Need Help Filing a Personal Injury Claim Within the Statute of Limitations? Call Us for Help.

Nearly all civil actions are subject to statutes of limitations. If you believe you might have a valid personal injury case after an accident, it’s crucial to pay attention to these deadlines. If you have questions about the statute of limitations and how it applies to your injury case, discuss your situation today with an experienced personal injury attorney at Guardian Law Group.