The Legal Process in a Personal Injury Case
Most of our clients come to us with no prior experience of how the legal system works. The legal process of a personal injury case is complex, and the timeline from beginning to end can be long and emotionally draining. The path each case will take is not always foreseeable. At Demas Law Group, we communicate at every stage with our clients to help them understand the process and prepare them for the next step.
You may be surprised to learn that most personal injury cases do not end up in lawsuits. In fact, the majority of our cases settle in what is called the “pre-litigation phase”. If a lawsuit is filed, then we enter the so-called “litigation phase” of the legal process. Below, we provide more information about what to expect in the pre-litigation and litigation stages of a personal injury case.
5 Things to Bring When Meeting with a Personal Injury Attorney
- Copies of any reports you have regarding your accident, including the police report.
- Pictures from the scene and pictures of your injuries.
- Your auto insurance and health insurance information.
- Any documents you received at the hospital or from other health care providers related to your treatment.
- If your claim involves a defective product, it would be helpful to bring the product (if applicable).
Pre-Litigation Phase of a Personal Injury Case
Stage 1: Treating Injuries
In this phase, you focus solely on getting the appropriate treatment you need to recover from your injuries. Treatment may include physical therapy, chiropractic treatment, surgery, alternative medicine or counseling. There is frequent communication between you and the attorney regarding any progress made, changes in your treatment and condition, and access to adequate and appropriate medical care. This phase ends when you are released from treatment or when you and your doctors agree that you have healed as much as possible for the foreseeable future (i.e., you have reached Maximum Medical Improvement).
Stage 2: Collecting Pertinent Information and Communicating with Parties Involved
While you are being treated and recovering, your attorney is busy:
- Communicating with the insurance company and claims adjustors
- Gathering accident reports, photographs, witnesses, statements, and hiring investigators and experts, as needed
- Resolving property damage issues (car rental, loss of use, etc.)
- Investigating issues regarding insurance policy coverage, policy limits and benefits
- Evaluating your own insurance for benefits, such as uninsured or underinsured motorist coverage
- Communicating with you and your treating physicians and health care providers regarding your condition and recovery
- Notifying MediCal, Medicare and military agencies, as needed
- Evaluating changes in the law that may affect the case
Stage 3: Evaluating the Case
After thoroughly investigating all pertinent records and documents, our lawyers begin to determine the value of your claim. There is no magic formula when it comes to evaluating personal injury claims. The injured person is supposed to be compensated to the extent that they are made “whole” again. Some damages may be easy to calculate, like past and future medical bills, lost wages, lost earning capacity, and property loss. But the law also states that the injured person has the right to recover compensation for other “intangible” harms, often called “pain and suffering.” These damages are more difficult to calculate, and require expertise and experience. Such harms may include pain, disability, loss of enjoyment of life, inconvenience, and mental anguish.
Stage 4: Filing a Demand
After estimating your case’s value (and only after you have reached Maximum Medical Improvement), the attorney prepares a settlement demand package. The settlement demand includes many different types of documents and records, such as:
- An analysis of the case and laws that apply
- Incident reports and police reports
- Photos of the accident scene and injuries
- Medical records and expert reports
- Testimony and statements from parties, witnesses, and experts
- Copies of pleadings that are ready to be filed in court in the event that the settlement does not occur
Our experienced attorneys know how to best present the settlement demand package in a way so that the information provided increases the chance of a favorable settlement.
Stage 5: Negotiating and Settling the Case
Submitting the settlement demand is the first step in what may be a lengthy negotiation process. Once the insurance company reviews the information in the settlement demand, they contact your attorney with their response. After these initial positions are staked out, there is usually a back-and-forth negotiation process that takes place. With good preparation and expertise on the part of the personal injury attorney, this process will often lead to a fair settlement.
Stage 6: Negotiating Medical Bills
After your case has settled, your health insurance and/or the medical providers who treated you will typically want to get reimbursed for the costs they incurred. Although not all personal injury attorneys do this, at Demas Law Group we have many years of experience in negotiating aggressively with medical providers and insurance companies to reduce our clients’ liens and outstanding medical bills. This reduction often results in more money for our clients.
Stage 7: Preparation and Disbursement of Settlement Funds
At this final stage of the pre-litigation process, your personal injury attorney prepares the disbursement of funds for your review and approval and issues the settlement check. Smaller settlements are paid to the client in one lump sum after the settlement is reached, but larger settlements may be paid in installments over a period of months or even years (e.g., structured settlements).
Litigation Phase of a Personal Injury Case
Stage 1: Filing the Lawsuit
If the negotiation phase of the pre-litigation process does not produce results, it may be necessary to file a lawsuit. Filing a lawsuit or complaint results in the creation of a case in court. Your case is then assigned a number that will identify that lawsuit among many others. Lawsuit filings are public information stored at the court handling the case – unless they are filed confidentially, a process that sometimes happens when suits contain sensitive information.
Stage 2: Serving the Lawsuit
Once the lawsuit is filed, a copy must be served on the defendants or their attorneys of record to notify them of the complaint. A lawsuit can be served by anyone, but it is normally served by a process server. The process server delivers a copy of the complaint along with any summons issued by the court for the parties to appear. Service of a lawsuit requires the defendants to file an answer within 30 days in most cases. At this point, defendants usually retain their own attorneys if they have not already done so.
Stage 3: Written Discovery
Discovery is the process that allows the parties to “discover” or learn about the facts of a lawsuit. During discovery, written documents will be passed back and forth between the attorneys that seek answers to certain questions or for them to produce evidence. There are several forms for written discovery, including:
- Interrogatories. Interrogatories are questions that must be answered by the parties within a certain time period – usually 30 days. Attorneys may send several sets of interrogatories depending on the answers to certain questions. Failure to answer interrogatories may hurt the party’s chances at trial or even cause the party to be held in contempt.
- Requests for Production. Attorneys may request production of certain documents, artifacts or other pieces of evidence that are deemed important to the case.
- Requests for Admissions. Admissions are statements that “admit” facts or issues in the case. Admissions have the effect of narrowing the scope of the litigation. Parties will usually admit facts that are already in evidence, such as the fact that a defendant was operating a particular vehicle on a certain day, but may not admit facts that could lead to admissions of negligence, such as the fact that a defendant was driving drunk.
Parties must respond to written discovery within a certain time period. If they fail to do so, they may incur penalties including contempt charges from the court or a summary judgment on the case.
Stage 4: Party and Witness Depositions
Both parties to the lawsuit and any witnesses may be deposed, or asked questions in a formal setting. Depositions of both the plaintiff and the defendant may be taken, as well as police officers, witnesses to the accident, and character witnesses. All questions and answers are recorded by a court reporter and these transcripts may be used at trial.
Stage 5: Defense Medical Examination
In a case in which you (as the plaintiff) claim injuries, the defendant may have the right to request an independent medical examination. This is to ensure that you are actually injured and that the nature of the injuries is as stated in the complaint. While it is possible to avoid certain types of examinations, it is often in your best interest to submit to this examination, as it may speed up the settlement process.
Stage 6: Arbitration or Mediation
Depending on the nature of your claim, it is possible that your case could be arbitrated or mediated rather than filed in a court. Arbitration is a hearing held by a neutral attorney or judge who hears the evidence and renders a decision. Either party can reject the “award” and then set a jury trial. Mediation is a settlement negotiating session attended by the parties and moderated by a neutral attorney or judge.
Stage 7: Hiring Expert Witnesses
Expert witnesses are often the core of a plaintiff’s or defendant’s legal case. Expert witnesses are those who are hired to give testimony as to certain facts. These facts could be scientific, medical or psychological. Hiring an expert witness is meant to bolster a party’s claim in the lawsuit, and it is usually done when negotiations between the parties are stagnant.
Stage 8: Expert Depositions
Experts are often asked to give depositions before the case goes to trial. There are two important reasons for these depositions. First, to allow both parties to evaluate what the expert will testify to and give both parties a chance to negotiate a settlement based on that testimony. Second, to pin an expert witness down on his or her testimony. If the expert then deviates from that testimony at trial, the attorney may use this deviation to discredit the expert.
Stage 9: Settlement Conference
A settlement conference is often held before proceeding to trial. The settlement conference gives both parties one last opportunity to negotiate an agreement to settle the case. The outcome of the settlement conference often hinges on the facts that have been established through witness and expert testimony. A neutral attorney or judge usually presides over the settlement conference to ensure that everyone is treated fairly.
Stage 10: Trial
When settlement negotiations fail, the case may be set for a trial by a jury. This is an intensive process that requires a great deal of time by both parties. If your case does go to trial, you will be expected to be in court at all times and may be asked to give testimony. The jury hears the evidence and renders a decision based on the facts. Judges and juries are required to render a verdict in civil trials on “preponderance of evidence” rather than the criminal standard of “reasonable doubt.” This means that the jury should weigh all the evidence presented and decide if they believe the defendant owes the plaintiff compensation and if so, how much. There is no way to predict this amount in advance, which is one reason why most parties prefer to settle than to go to court.
Stage 11: Disbursement of Recovery Funds
Funds are generally disbursed within 30-60 days of a trial and within 30 days of mediation or settlement. However, in the case of an appeal, funds disbursement may take longer. If punitive damages are awarded, the disbursement of the actual damages may occur prior to the payment of the punitive sums.
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Why Should You Take Action Immediately?
- The statute of limitations can run out.
- Key pieces of evidence can disappear.
- The sooner you start, the greater your chances will be of securing a full and fair compensation for your injuries. If you wait, complications can arise before you decide to file.