While every case is unique, personal injury claims will generally follow the same road to trial. But the claim may resolve by settlement anywhere along this road.
The Accident or Injury
Nobody plans on being in an accident. When one does happen, we all hope any injuries from it will be minor and resolve quickly. But against the possibility they won’t, there are several steps you can take after an accident that will help later to prove your personal injury claim.
At the accident scene, check to see if anyone is injured and call 911 if anyone is. If the accident is a motor vehicle accident, call the police. Take photos of the scene and any vehicles involved, and get copies of driver’s licenses and insurance cards. Take down license plate information and make note of the makes and models of all vehicles involved. Get contact information from any witnesses, and note the location of the accident and any conditions that may have contributed to it. Get the name and badge number of any responding police officers. If the accident is at a business, notify store personnel. As soon as possible after the accident, call your own insurance company and tell them about it.
Because of endorphins, adrenaline and shock, you may not immediately experience any injury from the accident. But later that day, when you wake up the next morning, or sometimes even several days later, you may develop serious discomfort and pain. If you do start experiencing any symptoms from an accident, immediately get medical care. Then continue getting care until released by your health care provider.
Consultation With An Attorney
Insurance adjusters and claim representatives are professionals with extensive experience handling personal injury claims. You are likely not a professional in handling personal injury claims and, hopefully, have little or no experience with them. So if you are injured in an accident, it is important to consult with an experienced personal injury attorney.
In your initial consultation, the attorney will address several issues. These include who is at fault for the accident, your injuries from the accident, the treatment for your injuries since the accident, and the insurance companies involved.
Attorney’s Initial Investigation
After you retain an attorney to represent you, the lawyer will start an investigation into the circumstances of the incident giving rise to your claim. The investigation may include viewing the accident scene, obtaining police reports, and photographs of the scene, the vehicles involved, and your injuries from the accident. Statements may be obtained from any witnesses. Medical records will also be ordered and reviewed.
The Demand Package
A settlement with the party responsible for your injuries is final. In exchange for paying you money, the party that injured you will require that you release all your claims against them. For this reason, it is best not to institute settlement negotiations until either you have recovered from your injuries or you and your healthcare providers have a pretty clear idea of what to expect for your recovery in the future.
Once you are fully recovered of have reached a plateau, your attorney opens settlement negotiations by preparing a settlement package to send to the responsible insurance company. The settlement package includes a demand letter providing information about you, the circumstances surrounding the accident, your injuries and treatment, your economic damages such as medical expenses and wage loss, and your non-economic damages such as the pain and suffering resulting from your injuries.
If your attorney is unable to resolve your claim through settlement negotiations or the end of the statute of limitations period for bringing your claim is approaching, the attorney will file a personal injury lawsuit.
The lawsuit is started by filing a complaint. The complaint and a summons are served on all of the defendants. The defendants then file an answer and any counterclaims or cross-claims they may have.
Discovery in the Lawsuit
After the lawsuit is started, there is a period of time before trial during which the parties conduct discovery. In discovery the parties obtain information and evidence for use in evaluating a claim and defenses to it, and at trial. There are several methods of discovery. Interrogatories are written questions that must be answered under penalty of perjury. Requests for production are formal requests for the production of documents and other tangible evidence, such as medical records. In depositions, a witness is sworn in under oath by a court reporter before answering questions about the case which the court report records so the questions and answers may be typed up in a transcript for use in the court proceedings.
Pre-trial motions may be filed by either the plaintiff or the defendant. These motions may be addressed to procedural matters, such as pre-trial or trial deadlines. They may also be addressed to the substantive issues in the case, such as liability and damages. In motions for summary judgment a party argues that a particular issue should be decided by the judge, because there are no questions of fact for the jury to decide and the party is entitled to judgment on the issue as a matter of law.
Preparation for Trial
If your case does not settle your attorney will prepare for trial. This involves identifying and preparing the evidentiary exhibits that will be presented at trial, such as medical records, photographs, and summaries of medical expenses. Your attorney will meet with you and any family and friends who will be testifying at trial, your medical providers, and any experts who will be called at trial. Jury instructions, which are instructions to the jury on the law applicable to your claim, and a trial memo, which briefs the trial judge on the legal issues expected at trial, will be prepared, as well as motions in limine, which are motions to get pre-trial rulings on evidentiary and legal issues before trial.
As the plaintiff, the personal injury claimant goes first in each phase of the trial, because the plaintiff has the overall burden of proof at trial. In a jury trial, the judge presides over the proceedings and rules on evidentiary issues. At the conclusion of the trial, the Judge instructs the jury on the law that applies to the case. The jury determines any factual questions and applies the instructions it receives from the judge to decide which party should prevail and the amount of any damages to award to the plaintiff.
Trial starts with jury selection, called voir dire. In voir dire, the attorneys ask the jury questions about their backgrounds and potential biases that may impact their ability to decide the case impartially.
Once the jury is selected, the parties give opening statements. In opening statements, the parties’ attorneys tell the jury what they believe the evidence at trial will show.
After opening statements, the plaintiff puts on his or her case, which involves taking testimony of witnesses and offering exhibits. After the plaintiff rests, the defendant puts on his or her case. After the defendant rests, the plaintiff has the opportunity to present rebuttal evidence.
The judge will then instruct the jury on the law applicable to the case. Both parties then make closing arguments, in which they make their final summaries of their clients’ factual and legal positions. The jury then deliberates in private until it reaches a verdict.