What Happens in a Personal Injury Case After a Lawsuit is Filed?
This is part of a series of blogs that discuss what a client can expect during various stages of a personal injury case. This post addresses what happens after a lawsuit is filed.
Have you ever heard someone refer to a case as being in “litigation”? Well, if your attorney files a lawsuit in your case, you will be in “litigation” – it’s simply the process of suing someone.
NOTE: being in “litigation” and going to trial are not synonymous.
An overwhelming majority of the cases in which lawsuits are filed never go to trial, as they are settled prior to that point. When they do go to trial, it will usually take at least 12-18 months to get to that point, if not longer. So if you hear that your attorney has filed a lawsuit, don’t panic. You are not automatically headed to trial.
Prior to filing the lawsuit, your attorney was most likely dealing directly with an insurance company and its adjuster. (Read the first post in this series: What Happens in a Personal Injury Case After You’ve Hired a PI Lawyer? Once a lawsuit is filed, the process changes and your injury lawyer will deal with an attorney for the insurance company.
Personal Injury Litigation:
Service of the Lawsuit
The first step after filing the lawsuit with the court is to literally put the lawsuit in the defendant’s hands. This process is known as serving the lawsuit, and in most cases the courts require the lawsuit be served personally to the defendant.
Your PI attorney will hire a registered process server to go to the defendant’s home or work and attempt to personally give the defendant the paperwork for the lawsuit. Depending on how many defendants there are in your case and how difficult it is to find and serve the defendants, this process can take several weeks, if not more.
Once a defendant is served with the lawsuit,he or she generally has 30 days to formally respond in court. A defendant who is served with a lawsuit should immediately turn the paperwork over to his or her insurance company, assuming there is insurance coverage.
The insurance company will then either assign in-house counsel to handle the case, or hire an outside attorney for defense. In either situation, the attorney who is selected will now be officially representing the defendant.
The Discovery Process
Once the defendant responds, both parties can proceed with the litigation. The next step involves written discovery. This is where the parties attempt to get information from each other through a series of written questions, written requests for the other side to turn over relevant documents, and written requests for the other side to admit certain facts regarding the case.
Your role in the process will generally be in providing answers – to the other party’s questions, and in gathering documents for your attorney.
Many times attorneys will merely exchange e-mails or letters with the client, or maybe have an assistant meet with the client, to obtain the requested answers. In our office, whenever possible we prefer to meet personally with you to go over the requested information and discuss the answers to be provided. This is yet another opportunity for us to meet face to face with each other to discuss the case, and for us to continue to learn about you and what you’re going through.
Injury Litigation Depositions
After the written discovery phase, the parties continue to discover information about the case by taking depositions. A deposition is the only time before trial that the other attorney can directly ask you questions prior to trial.
I will explain the deposition process in detail in a later blog, but remember, this is not your “day in court.” This is the time when you respond to questions asked of you by the other attorney. Your “day in court” will come later in trial, if your case gets to that point.
Defense Medical Examinations
After your deposition, if you are either still receiving medical care or experiencing any symptoms from your injuries, most defense attorneys will have you evaluated by a doctor of their choice.
Although this is officially referred to as an “Independent Medical Examination,” there is nothing “independent” about it. The supposed “independent” doctor is hired directly by the insurance company’s attorney to give the opinion the insurance company wants to hear: that your injuries are minor, nonexistent, or not related to the accident caused by the defendant. This is why most plaintiff attorneys typically refer to this as a Defense Medical Examination. I will discuss this in further detail in a future post as well.
Once all parties have obtained enough information, we will be in a position to discuss a settlement. Such discussions can occur informally between the attorneys, or in a more formal setting of a Mediation or Mandatory Settlement Conference. In personal injury mediations or settlement conferences, a neutral third party – an attorney, retired Judge, or active sitting Judge – will assist the parties in trying to reach an agreement.
If, and only if, the parties are unable to reach a settlement, will the case go to trial. Again, this will be at least a year after filing the lawsuit, and in most personal injury cases in Los Angeles, more likely 18 months or more after initially filing the lawsuit.
So when you hear your attorney say that a lawsuit has been filed in your case, stay calm. As you can see from the above, there are many steps to be taken, and much time will pass, before your case will go to trial, if it ever does.
What happens when you go to trial? I’ll tackle that question, as well as several of the procedures discussed above, in greater detail in future postings.