The 6 major steps to expect in your personal injury lawsuit
Have you been injured in some way and now you want to hire a lawyer to represent you?
It’s often assumed that the second you hire a lawyer, someone gets sued. And that may be the case in some instances. But most of the time, the process is much longer and much more nuanced. Generally, most cases will settle with the insurance company before a case will get to a lawsuit. But not all of them do.
In this article, we’ll use the example of an Atlanta car accident case to describe the process. Let’s say someone hit you with their car, you were seriously injured, and now you need legal help. While there are many possible reasons why a car accident claim may result in a lawsuit, there are 2 reasons that are more common than most.
When lawsuits are necessary, and why
The statute of limitations is expiring
The most common reason why filing a lawsuit may be necessary is that the statute of limitations is approaching. In Georgia, you only have 2 years to bring a lawsuit for a car accident, during which time all of the defendants must be served with the lawsuit. There are some very limited exceptions, but that’s the basic cardinal rule.
In the months following a car accident, the injured person is usually pursuing medical treatment. If the person was seriously injured, medical treatment can take months or even years. So, if an accident victim hasn’t fully recovered from their injuries and they are approaching the last 6 months before the statute of limitations expires, it may be best to go ahead and file a lawsuit in order to preserve the claim and make sure the plaintiff doesn’t lose any of their rights to recovery.
The insurance company won’t make an acceptable offer
The other common reason why a case might make it to a lawsuit is when the insurance company, for whatever reason, refuses to make an acceptable settlement offer. They may accuse the client of having a gap in medical treatment, they may contest that the provider overcharged, or they might come up with any other reason to pay as little as possible.
The bottom line is that it forces the client to choose between accepting a low offer or moving ahead with a lawsuit. Sadly, many plaintiffs are afraid to call the insurance company’s “bluff” and wish to avoid a lawsuit, so they take the low settlement. Insurance companies know this fact and are often willing to take the risk to avoid a payout.
Steps in a personal injury lawsuit in Georgia
Whatever the reason for why you need to file a lawsuit, here are the steps you should be prepared to follow:
Step 1: Complaint
A lawsuit for a personal injury claim stemming from a car accident is initiated when a lawyer files and serves a legal document called the “complaint.” The person filing the lawsuit is referred to as the “plaintiff,” and people the lawsuit is against are referred to as “defendants.” The complaint alleges, generally, that the defendant did something negligent and that, as a result of their negligence, the plaintiff was injured and suffered damages.
The defendant to the lawsuit is always the at-fault driver, although there may be other parties named as defendants in the lawsuit if it was a multi-vehicle accident or if the at-fault driver was an employee of a business conducting work-related duties. If the plaintiff has uninsured/underinsured (UM/UIM) motorist coverage, then their auto insurance carrier is also served with a copy of the lawsuit and becomes a sort of “unnamed” defendant as well.
Step 2: Answer
After the complaint is filed with the court and served to the defendants, each defendant has 30 days to file an answer. The answer is almost always filed by an attorney who has been retained by the defendant’s insurance carrier. Under the insurance contract, the carrier is obligated to provide them with legal defense counsel in the event of a lawsuit arising out of a covered incident (such as a motor vehicle accident).
Step 3: Discovery
Often, a plaintiff’s lawyer will serve discovery requests along with the complaint, and the defendants have 45 days from when the complaint and discovery are jointly served on them in which to file answers to discovery requests. Otherwise, if the discovery requests are served independently of the complaint, the defendant has just 30 days to respond.
Discovery requests come in 3 different formats:
- Requests for Admission. Requests for Admission are statements that the plaintiff’s lawyer asks the defendant to either admit or deny. For example, “The Defendant was negligent, and such negligence was the cause of the incident for which Plaintiff seeks damages.” Requests for Admission are used to help clarify which specific issues may be contested by the defendant, such as liability (who was at fault) or damages (how badly was the plaintiff injured).
- Requests for Production of Documents and Things. Requests for Production of Documents and Things are requests sent to the defendant asking that they provide copies of specific documents such as insurance policies, photographs, video or audio recordings, medical records, or anything other things that may be used as evidence in the case. Often, defendants will request an extension of time beyond the 30 days in order to respond to these requests. In most cases, those extensions are granted. By the time a lawsuit makes its way to the defendant’s attorney, it has often been delayed by the defendant or by the insurance carrier because it must pass through several sets of hands before the defense counsel gets assigned. From the plaintiff’s perspective, we would rather give the defendant a little extra time to formulate good responses than to rush them into bad or incomplete responses that we’ll have to fight about later.
- Interrogatories. Interrogatories are questions that we ask of the defendant such as, “What was the point of origin, destination and reason for the trip being made by the defendant at the time of the incident referred to in the complaint?” Interrogatories are designed to be answered, typically in a narrative form, with the best information the defendant has about the subject. Interrogatories are helpful in identifying issues that may be in dispute as well as identifying where additional evidence may be of which we were previously unaware. As with Requests for Production, extensions are often granted giving the defendant additional time to respond.
These same types of discovery requests are usually also sent by the defendants to the plaintiff, and the plaintiff has 30 days to respond. After extensions are granted (as if often the case), this means that written discovery frequently isn’t completed until about 3 months after the defendant has been served. If discovery issues arise where parties have “objected” to certain questions or withheld certain documents, written discovery can take even longer as it may require a hearing before the judge to resolve the dispute.
Step 4: Depositions
After all parties have responded to the written discovery, depositions will be taken from both the plaintiff and the defendant(s). In a deposition, the opposing party’s attorney has an opportunity to ask questions “on the record” in the presence of a court reporter who transcribes the whole proceeding.
For instance, if the plaintiff is the one being deposed, the court reporter will “swear in” the plaintiff and then the defendant’s attorney will ask them questions under oath about the accident and their injuries. The plaintiff’s attorney will have the opportunity to ask their own set of questions after the defendant’s attorney has finished, and the court reporter will transcribe each question and answer. That transcript can be used later in support of various motions filed with the court or to “impeach” someone at trial (proving that someone is lying by showing that they went back on their prior testimony).
After the depositions of the plaintiff and defendants are complete, the attorneys may then decide to take depositions of the doctors who treated the plaintiff. Depending on the severity of the case, the defense attorneys may choose to hire an expert with the goal of trying to prove that the plaintiff wasn’t as injured as they claimed or that their injuries were due to a pre-existing condition. In cases where the plaintiff was severely and permanently injured, there can often be depositions of multiple doctors and multiple experts as the parties prepare their cases for trial.
Step 5: Mediation
Generally, every case is required by the court to attempt mediation before proceeding to trial. It depends on the case, but this is often one of the last things done before trial — after all of the depositions have already taken place.
In mediation, both parties sit down with a neutral mediator who tries to help them negotiate a resolution to the case that is agreeable to everyone. The parties and mediator usually start in the same room and make some opening statements before splitting into separate rooms where the mediator will meet with them independently and then convey offers and counteroffers back and forth. Mediators are normally attorneys or former attorneys who have experience with litigation and can help both sides to understand the strengths and weaknesses of their case, as well as the reasonableness of their own position.
If a settlement can’t be reached, then the mediator will prepare a report stating that the parties could not come to an agreement and that report will be provided to the court.
Step 6: Trial
After discovery, depositions and mediation are complete, the court will place the case on a trial calendar. A trial calendar is a list of many cases that may be called within the 2-3 week period of the calendar. They’re usually listed in numbered order so the parties can determine how likely it is that they’ll be called to trial.
For instance, if your case is No. 23 in a 2-week trial calendar, it is very unlikely that the 22 cases in front of you will either resolve or finish their trial in time for you to be called. If, however, your case is No. 3, then there’s a high likelihood that your case will be called to trial during that trial calendar.
The trial itself is very structured. First, the attorneys for both sides will go through the process of selecting a jury. This involves asking a large pool of potential jurors various questions to determine if anyone should be disqualified due to bias or a conflict of interest. After the jury has been selected, they will be given instructions by the judge and the trial will proceed.
The trial begins with the plaintiff’s attorney giving an opening statement, which is usually limited to 15 minutes, followed by the defendant’s attorney giving an opening statement. The plaintiff’s side will then begin their “case-in-chief” by presenting witnesses and evidence which supports and builds the outline or story of their case as presented in their opening statement. When witnesses are brought up to testify by the plaintiff’s counsel, the defendant’s counsel will have an opportunity to cross-examine them.
After the plaintiff’s side has finished presenting all of their evidence and testimony, the defense presents their case. Similarly, they may present witnesses and evidence to support their version of events. After the defense has finished presenting their case, both sides will give a closing statement, again starting with the plaintiff’s attorney and ending with the defendant’s attorney.
The presiding judge will then provide the jury with a set of instructions regarding the law and how it needs to be applied and the jury will be sent to deliberate. After they come to a unanimous agreement, the foreperson of the jury will announce the jury’s decision to the parties. The whole process of the trial itself usually takes 2-3 days in the instance of a basic motor vehicle accident case.
The entire process of a personal injury lawsuit can take anywhere from 1 to 5 years. On average, though, lawsuits generally take 18 months to 3 years.
Consult an experienced Atlanta personal injury lawyer near you
Popular culture makes lawsuits seem like simple affairs where someone gets sued and immediately winds up in a courtroom with lawyers giving dramatic speeches, but the reality is that the process is far more structured and time-consuming. The decision to file a lawsuit is a serious one that requires a lot of consideration about what is best for the client.
That being said, lawsuits are invaluable tools when it comes to forcing an insurance company to take a case seriously and make a reasonable offer for a client’s injuries. Often, it’s the only remaining option after we have exhausted every other avenue of recovery for our client. Either way, it’s always important to have the advice of an experienced personal injury attorney who can not only exhaust every option short of filing a lawsuit but who also has extensive litigation experience and can guide the litigation process to a successful outcome for their client.
At Scholle Law, we have extensive experience helping clients all the way from the day of their accident through a jury verdict. If you need legal help because you were injured in a car accident or suffered some other personal injury due to someone else’s negligence, we want to talk to you and discuss your rights.