What to Expect From the Third Party Lawsuit Process

January 4, 2012

Civil personal injury case profile

The following is an outline of the steps which generally occur in a typical personal injury case. This will help your understanding of the timing, procedures, and significant events that are likely to occur over the life of a personal injury case.

Each case will have unique characteristics and will be handled accordingly. However, there are many procedures which are identical and we are attempting to outline them for you here. Please use this only as a general reference.

  1. STEP 1: INVESTIGATION

    (A) Engagement: Client and attorney agree to representation.

    (B) Generally within 30 days of engagement, the preliminary field investigation is accomplished to include (1) witness statements; (2) medical bills gathered; (3) legal theories developed and researched; (4) physical evidence retrieved and retained; and (5) potential defendants identified as to legal status and insurance status.

    (C) Settlements: Settlement can occur, occasionally, without filing a complaint. Generally those circumstances where the client's injuries are minor and have fully resolved or the defendant's liability is absolute or the available insurance limits to cover the client's injuries are inadequate and are promptly tendered by the defendant's insurance company.

  2. STEP 2: LITIGATION

    (A) Complaint is filed with court in the appropriate venue. The complaint contains a statement of the ultimate facts and legal theories and names the defendants. The complaint will usually be filed within 30-60 days of our engagement.

    (B) Within 30 days of being served with the complaint, each defendant must file its answer with the court. By their answer, the defendants will generally deny all the charging allegations made against them. The defendants may demur to the complaint which means they challenge the legal sufficiency of the allegations although this is rare in a personal injury case. The defendant must state in their answer all affirmative defenses they believe apply, such as any comparative negligence of the plaintiff.

    (C) Within 3 to 4 months of filing the complaint, the court will set the schedule for the case which will include the trial date. The trial date is going to be set within 12 months of the date complaint is filed. If the matter is to be arbitrated, that will occur within 8 to 10 months from the date the complaint is filed. The court will set a status conference which follows 3 to 4 months from the filing of the complaint. The court may order the matter into arbitration. Arbitration is non-binding and is advisory upon the parties. The party dissatisfied with the results of a non-binding arbitration can reject it and proceed to trial.

  3. STEP 3: FORMAL DISCOVERY

    (A) Formal discovery is the request and disclosure of evidence between parties (through their attorneys) in formal proceedings as established by the California Code of Civil Procedure. Parties are obligated by force of law to comply with discovery in conformity with th law of discovery of the State of California. Discovery proceedings are conducted up to 30 days before the date of the trial. These proceedings include the following:

    (1) Interrogatories: These are written questions which must be answered under oath by the party to whom they are proposed. Interrogatories may only be sent to a party to the case. They are not propounded to independent witnesses.

    (2) Request for Production of Documents: this is a formal request that a party produce all described in the request which are relevant or reasonably likely to lead to the discovery of relevant information in the case. Documents may also be obtained by subpoena from non-parties (i.e., medical records).

    (3) Request for Admissions: These are requests that a party admit to facts and the genuineness of documents described in the request.

    (4) Deposition: This is a proceeding, usually taking place in an attorney's office, where a witness or a party is called by subpoena or by notice to appear to answer verbal questions propounded by the attorneys in the case. The testimony of the witness or the party are under oath and have the same force and effect as though they were given in a court of law. By deposition, the attorneys in the case confirm and establish what the testimony will be of a witness or a party so that they might know in advance of trial what each witness is to say. You can expect to be deposed in your case and that will generally occur only after you have recovered from your injury. You will be asked at the deposition to discuss such things as your education, personal background and history, previous accidents and injuries, previous medical providers, the injury suffered, the care and treatment for those injuries, your employment history, your current employment, time lost from work, your pain, your suffering and how long this accident has impacted the quality of your life. Except in rare cases, you will only have to give one deposition in a case.

  4. STEP 4: ARBITRATION, SETTLEMENT, ALTERNATIVE DISPUTE RESOLUTION PROCEEDINGS:

    (A) Arbitration: This is where the parties introduce evidence before a neutral arbitrator assigned by the court or agreed to by the parties who will render a decision in writing. Either party can reject the arbitrator's decision within certain specified time periods and proceed to trial. If the parties agree, an arbitration can be made binding.

    (B) Mediation: Similar to an arbitration but less formal. A neutral mediator with experience as either a trial judge or trial lawyer will preside. No written decision is filed but a recommendation is made by the mediator as to the settlement value of the case. Either party can accept or reject the recommendation.

    (C) Settlement Conference: Usually conducted before a judge in the court in which the case is filed. The procedure is similar to a mediation in that the court hears from both sides informally and makes a recommendation to the parties. It is a non-binding proceeding.

    All the foregoing proceedings generally occur and are most effective after there has been some formal discovery, including the deposition of the plaintiff.

  5. STEP 5: SETTLEMENT

    (A) All settlements are made with the approval of the client. Once a case is settled, documentation is drawn up by the defense attorney and submitted for review. The settlement documentation often includes a settlement agreement, a full release of all claims, a dismissal of the pending case and the settlement draft or check. All of this is usually accomplished within 30 days. Cases involving minors (under 18), must be approved by the court and involve a formal petition by the guardian on behalf of the minor to the court requesting an order approving the settlement.

  6. STEP 6: TRIAL

    (A) Cases as a general rule do not start on the actual date first assigned for trial. The court manages its calendar and when the trial actually starts is dependent upon the availability of a "court room". There are exceptions but, on average, cases may generally be expected to go to trial within 60 days of the first assigned for trial although, again, it is all dependent upon the congestion in the courts at that time. Trials are formal proceedings where "facts" are decided by a trier of fact, either the judge or, in the case of a jury trial, the jury. Once the facts are decided, the judge will apply the law and judgment will be entered accordingly.

  7. STEP 7: APPEAL

    (A) Legal issues or rulings made during the course of the trial can be contested on appeal. Appeals are not about factual determinations but, rather, are matters of law. Appeals are infrequent. In state court cases, the first level of appeal is to the Court of Appeal.