A personal injury case begins as soon as a person is injured. Witnesses and other evidence of the injury are essential for establishing the case regardless whether the case develops into a lawsuit that goes all the way to trial
Intake: The Initial Meeting of the Lawyer and Client
The personal injury attorney calls this initial meeting of fact gathering between himself and the injured person the intake. The attorney considers many factors that will affect the case, including the time that has passed since when the injury first occurred, the evidence the client presents to him of the injury, the evidence he can expect to obtain in the future, the availability of any persons who witness what caused the injury, the ability of the person or company that caused the injury to adequately provide compensation, the costs he expects the case will incur, among several other factors. He may want to interview other witnesses or do further investigation before agreeing to accept the case. He may also consider whether the case would best be resolved through litigation or by some alternative method of resolving the dispute, such as through arbitration.
Once the attorney agrees to represent the injured person, he may send a demand letter to the person or company responsible for the injury, demanding compensation on his client’s behalf. Either way, every person involved in a personal injury case should realize that the following stages could, and usually do, quickly come to an end as soon as both sides reach a compromise and agree to settle the case.
The Complaint and Answer
The complaint is a document the injured party or his attorney first files with the clerk in an appropriate courthouse. It lists the allegations the injured person, called the plaintiff, makes against the person he alleges is responsible for his injury, called the defendant. Once the complaint is filed and the defendant is served with a copy of the complaint, litigation begins. The defendant ordinarily must file a document that responds to the allegations of the complaint, called an answer. Once these documents are filed and the persons involved in the lawsuit are served with the documents, a process called discovery commences.
Discovery: Information Exchanged Between the Plaintiff and the Defendant
Discovery is the process in which information is exchanged between the plaintiff and the defendant. It can take months or even years. The process is intended to educate both sides of the dispute of all the evidence in the case and, if the case goes far enough, to eliminate surprise at the time of trial. The process includes questions and answers that are mailed back and forth between opposing attorneys and their clients; demands for certain tangible items that can be used as evidence (such as photographs, records, medical reports, test results, among other items) and depositions.
A deposition is a meeting between attorneys and a witness. The witness is usually a person who has knowledge of certain facts in the case or who can offer an expert opinion regarding some issue in the case. The attorney for one side of the case demands the meeting so that he can question the person and obtain information that may affect the outcome of the case. The defendant in a personal injury lawsuit often demands a deposition of the injured person so that he can learn everything the person is likely to say if he later testifies at trial. If the injured person changes his version of the facts when he testifies at trial, the defendant can discredit him by pointing out to the court how he has changed his version.
The discovery process is where personal injury attorneys do much of their work and lasts almost up until the time of trial.
Motions, Hearings, and Summary Judgment
There are a number of legal issues that must be addressed and argued between the attorneys during the course of the litigation. Attorneys typically bring these issues to the court’s attention through what is called a motion. Once an attorney makes a motion, the attorneys meet at court to argue the issue in a hearing. Many attorneys consider the most pivotal motion in any case to be the motion for summary judgment. It is made after both sides of the case have had an opportunity to learn and obtain evidence through the discovery process. An argument commonly found in a motion for summary judgment is that all the evidence that is available, even when shown in a light most favorable to the opponent, fails to be supported by any recognized theory of law that would entitle the opponent to a victory. If the side that makes the motion wins it, there are very few opportunities for the other side to recover. However, if the side that makes the motion loses it, then the court essentially has concluded that a trial is needed to resolve the dispute.
Trial: The Case
Once discovery is completed and the court has decided that there exists for each side a recognized theory of law that would enable it to win the case if it could prove true its version of the facts, the court sets a trial. The trial gives either a judge or a jury an opportunity to see and hear the evidence and decide who is telling the truth, who is lying, or who is merely mistaken as to their version of the facts. Once the trial has finished, the judge or jury who heard the trial gives a verdict that decides whether the defendant is responsible for the injuries sustained by the plaintiff, and if so, how much compensation the defendant must pay.
Sometimes the judge makes a legal mistake. For instance, what if John, who drove a bright red car that was manufactured in 1945, admitted that one night he got drunk, drove his car up on the sidewalk, and hit Mary, a pedestrian? But what if Judge Often Confused instructed the jury that heard the trial that John could only be held responsible for the injuries he caused Mary if his car was blue in color and manufactured after 1999? What if the jury followed the judge’s instructions and found John could not be responsible. If the judge was wrong about the law, and the year and color of John’s car were not supposed to affect John’s legal responsibility, what could Mary do?
When the side that lost the trial believes the judge made some error that affected its chance of winning the case, it appeals to a “higher” court to review the judge’s action and decide whether it was right or wrong. An attorney will rarely seek an appeal solely on whether the version of facts portrayed in the case by the other side were untrue. More often, the appeal focuses on a judge’s ruling. If the side that won the trial also wins the appeal, the case is pretty much over unless an even higher court wants to review if a mistake was made. If the side that lost the trial wins the appeal, the case is usually returned to the lower trial court so that the trial judge can clear up his mistake and give the losing side a new chance at a trial.