What Happens When I File a Personal Injury Lawsuit? The Litigation Process Explained
We’ve all seen television shows and movies about high profile jury trials. They are full of excitement and drama. So when your lawyer tells you one day, “we need to file a lawsuit,” it is normal to get butterflies. Filing a lawsuit sounds scary after all you see and hear on television. But like everything else we see on television, they do not always accurately reflect what it is like for the average person to file a personal injury lawsuit and go through the litigation process. Truth is, filing lawsuits is fairly routine in our practice.
Frequency Lawsuits Must Be Filed
Insurance companies fight claims regularly in an attempt to save themselves money at your expense. A lawsuit has to be filed in approximately 10-20% of all cases that we see. While this may not sound like a large percentage, Lawsuits are not uncommon today. We have three litigation attorneys or “trial lawyers” at Simmons and Fletcher, P.C. Our personal injury trial lawyers file a total of 10-15 lawsuits a month on average. The insurance companies know who will file a personal injury lawsuit and who can be low balled because they will not. Thus, it is important to retain a lawyer with a track record of filing lawsuits and going to trial on behalf of their clients like the trial attorneys at Simmons and Fletcher, P.C.
Filing the Lawsuit
If you have a lawyer (which you should at this point), your lawyer will draft what is called a “petition.” A petition is a legal document that identifies to the court who the parties are, states the elements of the cause of action that the plaintiff (injured party) alleges that the defendant (negligent party) is responsible for, and sets forth a request or “prayer” for relief that explains what the injury is and what the plaintiff seeks. This is what sets the ball in motion. It must be done within a set time frame known as the Statute of Limitations. Once you file a personal injury lawsuit, the defendant must be served with a copy of the petition and a summons issued by the Court ordering the defendant to come forth and file an answer to the petition.
The Discovery Process
Once the defendant files an answer, the discovery phase begins. Discovery is the process by which each side has the opportunity to learn about or “discover” the other side’s claims and evidence. Typically, it will involve the exchange of written questions and answers, the exchange of oral questions and answers and issuing record subpoenas and ordering records. Depending on the nature and complexity of the case, the discover process may take 4-6 months or it may go on for years.
Written Discovery – this typically consists of Requests for Disclosure, Requests for Admissions, Requests for Production, and/or Interrogatories. Your attorney may choose to use some, all or none of these to obtain information from the defense. Requests for Disclosure are specific questions set forth by the Texas Rules of Civil Procedure that must be answered by the other side when they are asked. They are not objectionable. Requests for Admissions are simple questions that must be admitted or denied. They are like “true/false” questions. Some can be objected to and will be treated as denied when they are. Requests for Production allow a party’s attorney to ask for documents. The questions must be reasonably calculated to discover relevant evidence to the case. Interrogatories are a series of detailed answer questions that can be used to learn information about your opponents claim. Interrogatories and Requests for Production can be objected to when the other side feels they exceed the scope of discovery. Your personal injury lawyer should assist you in answering these questions before filing them.
Oral Discovery: Depositions – A deposition is the questioning of a person with knowledge relevant to a case under oath. The witness being deposed may be a party to the case, a witness in the case or an expert witness. The deposition typically takes place at a time and place agreed upon by all attorneys involved so that all lawyers can be present. Your personal injury lawyer will decide which, if any, witnesses are necessary to properly prepare and present the case to the jury. Usually, the other side will request your deposition and your attorney may request theirs. In the case of your deposition, your lawyer will be present to make objections. He should also discuss with you what to expect before the deposition takes place.
Subpoenaing and Ordering Records – Your medical records and medical bills are almost always necessary to your case. Your lawyer and/or the other side can subpoena them along with a deposition by written questions or order them via affidavit in order to make them admissible into evidence. Other records that may need to be ordered are things like employment records and tax returns relevant to your lost earnings claim, repair bills and receipts, and police reports. Your lawyer should decide what he/she needs to prove your case and obtain them accordingly.
Alternative Dispute Resolution
Alternative Dispute Resolution (ADR) is a process by which parties may chose or be ordered to attempt as a way to circumvent trial. There are many ways you can wind up at Alternative Dispute Resolution. In the case of employment cases, it is not uncommon for there to be a clause in the employment agreement or other employee documents that requires the employee and the employer to attend arbitration instead of going to trial. If you have such a case, you should discuss whether this is a must door an optional choice and what the pros and cons are in your case. You may also wind up at ADR as a result of an agreement between the parties and their attorneys or and/or as a result of a court order making ADR mandatory before trial. There are several types and variations of ADR, but the most commonly seen are Mediation and Arbitration.
Mediation is a process by which the parties and their attorneys appear before a neutral party called a mediator. The mediator’s job is to listen to the attorneys for both sides and to try to get the two sides to come to a middle ground where the case can be settled. In most cases, the attorney for the plaintiff will be present and do most of the talking for the plaintiff. Mediation is not a discovery tool. Thus, the other side is not generally allowed to ask questions at mediation. The defense attorney and often an insurance adjuster will be present for the other side. The defendant, himself, may or may not be present. In most cases, the defendant gets no vote in what the insurance company does so they do not come to mediation.
A common format for mediation is for all involved to come together and hear a very brief opening statement by the attorneys. The plaintiff’s side and the defense’s side then typically are separated into private rooms or “caucuses” where they can discuss matters privately with the mediator, out of the other side’s presence. The mediator is a neutral party who does not judge the case. His/her role is simply to discuss the case issues with both sides and try to get the case settled. He/she will carry demands and offers back and forth in an attempt to get the case settled. If an agreement is reached, the case settles. If no agreement is reached, the litigation continues. The mediator has no authority to force anyone to do anything.
Mediation is the most common choice when the parties have a say in it. Many attorneys use mediation regularly as a way of trying to get cases resolved before going to trial. Many courts also now require ADR. They will often have a deadline in the court scheduling order by which the parties must agree to attempt ADR or have the court order a mediator of the court’s own choosing. Lawyers will often agree on a mediator to avoid losing the option to choose on their own. Thus, mediation is very common is cases in litigation.
For additional reading on Mediation, see: What is Mediation?
Arbitration is less common in cases, except for employer-employee cases where a contract requires it. Lawyers and their clients may go by agreement in other cases, but it does not happen often in Texas. Unlike mediation, arbitration more similar to a trial. The arbitrator or arbitrators are judges. An opening and closing take place, witnesses are called, testimony is heard, evidence is presented and the arbitrator ultimately renders a ruling and an award (if justified). It is typically binding which means the ruling of the arbitrator is a final determination of your case. Whether you like his/her decision or not, you are generally stuck with it.
For additional reading on Arbitration see: What is Arbitration?
Personal Injury Trial
The trial is the final stage of the litigation process. Depending on the type of case and the complexity of the issues, it could take a day or it could go on for weeks–although the typical auto accident or premises liability trial is more likely to be a matter of a few days. You should discuss this and what time frame to expect with your attorney. The stages of the trial are: Jury Selection, Opening Statement, Presentation of Evidence, Closing Argument and Rendering of a Verdict and Judgment.
Jury Selection – The jury selection process, also called “voir dire,” is the process by which your lawyer and the other side’s lawyer question prospective jurors and select your jury. Each side is given a certain number of preemptory challenges and unlimited strikes for cause. A strike for cause is exercised when a juror demonstrates in answer to a question that he or she cannot be a fair and impartial juror or cannot follow the law and/or instructions of the court due to bias or prejudice. Preemptory strikes may be used to strike a juror for any nondiscriminatory reason.
Opening Statement – the opening statement is the part of the case where the lawyers get to tell the jury what is going on. They will typically use this time to explain to the jurors their roles, what the elements of the cause of action are, what the evidence will show and what verdict the lawyers want the jury to render. Each side is given a set time by the court to give their opening statement. Nothing said in an opening is evidence.
Presentation of Evidence – the evidentiary phase of the trial is where you and other witnesses may be called to give oral testimony to the jury. This is the part you usually see on the television shows because it is where the examination and cross examination take place. It is also where documents and photographs are offered into evidence for the jury to review when they go back into the jury room. This is the meat of your case.
Closing Argument – Closing argument is similar to the opening statement in that the lawyers will get up and talk to the jury for a time set by the Court. They are allowed to actually argue what the evidence means and how a jury should understand and use the information they heard. Typically, the plaintiff’s attorney is allowed to divide his time into an opening and a rebuttal. The rebuttal takes place after the defense attorney concludes with their closing argument. The defense attorney must use all of his or her time in one lump. Upon request by the defense, the Plaintiff’s lawyer must “fully open.” This means he must lay out all the specifics of his damages claim including every number for each of the personal injury elements of damages he intends to ask the jury to award.
Rendering of a Verdict and Judgment – At the close of the evidence, the jury retires to the jury room to deliberate. Here, they will consider the evidence and the jury questions they are given, along with the instructions given by the court. In a 12 person jury, 10 out of 12 must agree on each question and sign the verdict. A failure to obtain 10 that agree results in a mistrial. Once the jury reaches an agreement, it is given to the court and read to the parties. Upon a party’s motion or the court’s own motion the verdict is generally accepted by the court. The court ultimately renders a judgment after applying the law to the jury’s answers to the questions. There may be consideration for certain recognized court costs, pre and post judgment interest and/or reduction for comparative negligence. Once the court renders a Final Judgment, the losing side has 30 days to pay the judgment or take action to preserve and pursue an appeal.
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.