Hiring an Attorney and Preliminary investigation
The first step in pursuing a personal injury claim is to contact an experienced personal injury attorney, such as an attorney at our law firm. You may do so by submitting your information through our online submission form, our chat feature, or by calling our toll-free number. Our law firm provides a free, confidential, no-obligation review of your potential personal injury claim. Following the submission of your potential claim information, we may arrange an interview between you and an attorney in order to gather additional facts of your case to assist the attorney in their evaluation of your claim – this may occur in person, over the phone, or online.
If we accept your case, we will aggressively pursue your case to make sure you get the compensation you deserve. We understand that the legal process can be intimidating and confusing for many non-lawyers, and therefore we will do our best to make the process easy and stress-free.
If we accept your case, and you agree to hire us to be your attorney, we will send you the necessary paperwork to get started. The paperwork includes a contract (“Retainer Agreement”) in which you agree to hire us as your attorneys to represent you in pursuing your personal injury claim. The agreement will include the scope of the representation and information about our attorneys' fees. At our law firm, we represent personal injury clients solely on a contingency fee basis, meaning that you pay us nothing unless we secure a financial recovery for you. Other paperwork may include additional questionnaires and forms permitting us to confidentially obtain your relevant medical records.
We will then begin gathering additional evidence to support your claim. This may include ordering and reviewing your medical records, obtaining accident reports, securing and preserving additional evidence (photos, video, etc.), obtaining witness statements, and performing factual and legal research.
In certain cases, where appropriate (such as auto accidents), the next step may include preparing and sending a settlement demand letter to the defendant and/or insurance company, outlining your case, including liability and damages. Such letters are designed to obtain a settlement before resorting to filing a lawsuit with the court.
The Legal Process (Filing a Lawsuit and the Litigation Process)
Initiating Litigation - Filing a Complaint
“Litigation” is the term used to refer to the process of resolving a dispute (i.e. lawsuit) through the court system. Litigation can be divided into several distinct phases and begins when a Complaint is filed.
A Complaint is a legal document that identifies the parties to the lawsuit -- you [the plaintiff], and the defendant. The Complaint alleges and describes the defendant's wrongdoing and how such wrongdoing caused your injury. It also specifies what kind of compensation you, the plaintiff, are seeking. After the Complaint is filed, the defendant typically responds to the allegations presented in the Complaint by filing their Answer in which the defendant may deny the allegations or offer some type of defense. If a defendant fails to file an Answer within the legal time limit to do so, the plaintiff may request the court to enter a Default Judgment in favor of the plaintiff, which basically means the plaintiff has won their case and the only issue to be determined is how much the plaintiff should receive in damages.
At this early stage the defendant may also seek to dismiss the lawsuit by filing a motion to dismiss. [A motion is a legal filing requesting the judge to decide a matter.] A motion to dismiss basically argues that the plaintiff has failed to state a viable cause of action – i.e. the plaintiff has failed to set forth all of the necessary elements of a claim or has failed to file within the legally prescribed time limit (known as the statute of limitations) for that type of case. A motion to dismiss may also be granted if the plaintiff filed the action in the wrong jurisdiction or venue (e.g. filed in the wrong state, city or county, or filed in a matter in federal court instead of state court or vice versa). The judge may grant a motion to dismiss “with prejudice” or “without prejudice” –with prejudice meaning that the case is over forever and cannot be re-filed, “without prejudice” meaning that the plaintiff can attempt to fix and re-file the lawsuit. In some cases a judge may unilaterally (sua sponte) dismiss a case for various issues even if the defendant did not file a motion to dismiss.
Litigation - Discovery Phase
What follows after the filing of the Complaint and Answer is a lengthy process known as “discovery”. “Discovery” describes various legal procedures and tools in which each party seeks to obtain evidence from the other party or parties. Discovery allows each side to obtain important information (facts, witnesses, etc.) to help support or defend their case.
One type of information gathering tool are Interrogatories which are specific written questions sent to the opposing party. Interrogatories may ask for a wide variety of information such as the names and contact info of witnesses, a description of the accident (time, location, place, etc.), a description of injuries, the type of medical treatment obtained and names and locations of medical providers, various information about the company or business being sued, etc.
Another information gathering tool is called a Request for Production which is a written demand that the opposing party provide copies of relevant documents for inspection, such as medical records, insurance policies, photographs, relevant business records, etc.
A third information gathering tool is a Request for Admissions which is a set of factual statements written by one party which the opposing party must either admit, deny or object. Admissions allow parties to avoid wasting time proving facts at trial which are not in dispute.
A fourth discovery tool is deposition. Depositions are sworn testimony – basically live interviews (questions and answers) – of the parties and witnesses. The questions and answers are recorded live by a court reporter and may be also recorded by audio or video equipment. The questions and answers are used to help each side prepare their case for trial. They may also be used at trial and carry the same evidentiary weight as live testimony.
Parties and witnesses providing information through any of the discovery procedures described must do so under the penalty of perjury, meaning that their statements and answers must be truthful. Such information carries the same weight as testimony given at trial.
Mediation and Settlement Negotiations
In order to avoid the possibility of lengthy and costly litigation and the uncertainty of deciding the matter through a trial, the parties may engage in negotiations to try and come to a mutually acceptable resolution. In mediation, the parties work with a neutral third party, called a mediator, to help resolve their disputes. Mediators are often judges or former judges. A mediator acts as a go-between that facilitates the exchange of information between the parties. A good mediator will help bring parties together, help each side understand the other side, find common ground, diffuse tensions and unrealistic expectations, and offer possible mutually acceptable solutions. In some cases, a mediator may assist in the drafting of a settlement agreement. Mediation is usually voluntary but some jurisdictions may require participation in mediation. It is important to note that a mediator cannot render judgment in a matter or require the parties to reach an agreement or settlement.
The vast majority of cases usually reach a settlement before trial. According to government statistics, “Four percent to five percent of the personal injury cases in the United States go to trial. 95 percent to 96 percent of personal injury cases are settled pretrial.”
Pre-Trial Motions
During the course of litigation, the parties may attempt to resolve the lawsuit in their favor prior to trial through the certain types of legal filings (called motions) which ask the judge to rule on a matter or controversy. As noted above, early in the litigation, following the filing of Complaint, the defendant may ask the court to dismiss the lawsuit.
After the discovery (fact-gathering) phase of the litigation has completed, the defendant may file what is called a motion for summary judgment, asking the judge to rule in their favor and effectively end the litigation without proceeding to trial. The purpose of a trial (and the function of a jury) is to weigh the facts and evidence, not to make legal determinations. In a motion for summary judgment, the defendant argues since there are no disputed material facts requiring a trial or jury and because the law supports their position, the judge may summarily grant a judgment in their favor as a matter of law. However if the plaintiff can successfully argue to the judge that there is any disputed issue of material fact, then the case will proceed to trial.
Trial
If the parties ultimately cannot agree to a settlement or resolution and the judge has not dismissed or decided the matter based on a motion, then the matter will go to trial.
The purpose of a trial is to examine and weigh the evidence (including the credibility of the parties and witnesses) to decide if the defendant in the case is legally responsible for the injuries they allegedly caused the plaintiff. Once all the evidence is presented, a judge or jury will determine if the defendant is liable for those injuries, and if so, to what extent the defendant is liable, and if applicable, to what extent the plaintiff may have also contributed to their own injury. If the defendant is found liable, the judge or jury will determine the damages to be paid to the plaintiff.
Prior to the actual trial, a pre-trial conference is usually held to deal with organizational and scheduling issues. The parties also typically file a number of motions to define the scope or limit the types of evidence (e.g. exhibits, witnesses, experts, scientific evidence, testimony, etc.) that may be presented to the jury. Limiting certain types of evidence and testimony is based on various legal theories. The success or failure of these motions can seriously impact a party's case, especially if a key witness or piece of evidence is excluded from the jury.
Jury Selection
The first phase of the actual trial is jury selection. A jury is usually selected from a large pool of people summoned for jury duty. Jury members may be asked questions by the judge and lawyers from both sides – this is called the voir dire. The purpose of this question and answer session is to probe prospective jurors to determine if they can be fair and impartial. The judge and lawyers may excuse prospective jurors “for cause” if it is determined that they cannot be truly impartial or fair. Attorneys for each side are also allowed a certain number of “preemptory challenges” which they may use to dismiss prospective jurors for any reason and without having to state a reason why they wish to exclude them. In some cases, jurors may also be required fill out lengthy questionnaires to help attorneys with their evaluations.
Juries in most states are comprised of twelve members. The court may also select additional “alternate jurors” who serve just like regular jurors. Alternates serve as a sort of backup in the event the court needs to dismiss a regular juror due to illness or misconduct.
Some cases are tried only in front of the judge – no jury is selected. The judge decides both questions of fact (usually reserved for a jury) and questions of law. These types of trials are called “bench trials.” Generally speaking, bench trials are preferred by defendants because juries tend to be swayed more by the emotional aspects of the case which tends to favor the plaintiff's side. Jury trials also tend to award plaintiffs greater damage awards. Bench trials may be preferred if the case is extremely complex and both sides feel that facts and evidence will greatly confuse the jury.
Opening Statements
The plaintiff's side presents to the judge or jury an outline or roadmap of their case and the type of evidence they plan to show during the trial to support their claims. Following the plaintiff's opening statement, the defendant similarly presents an outline of their defense and the type of evidence they plan to show. Opening statements are not supposed to present arguments as to why one side should win, nor are they considered evidence. They are intended to familiarize a jury with the evidence and concepts to be presented.
Witness Testimony
After opening statements each side presents evidence and arguments in support of their case, primarily through the questioning of witnesses. Witnesses may include the plaintiff, the defendant, eyewitnesses, and other parties with knowledge about the facts surrounding the case (e.g. police officers, paramedics, doctors, etc.).
Many cases involving complicated or technical matters, such as defective product or medical malpractice cases, may also include the use of “expert witnesses”, who are qualified experts used to explain complicated subject matter or concepts to the judge and jury and offer opinions as to the cause(s) of the accident or injury and nature or extent of the damages.
Witnesses may be shown and asked questions about various pieces of evidence (e.g. photos, medical records, documents, etc.). Pieces of evidence that are presented to the jury are called “exhibits.” Each side may also use various types of props called demonstratives to help describe or explain aspects of the case {e.g. a diagram showing the relative position of vehicles at the time of the accident, an anatomical chart showing areas of injury, etc.).
Witnesses called to testify are said to be “called to the stand”. The “witness stand” is the area where a witness is questioned by either side, and is usually located between the judge and jury, allowing the jury a good view of the witness. Prior to testifying, a witness must swear an oath that they will provide truthful testimony. A person who knowingly provides false testimony is said to have committed perjury and may face severe consequences, including criminal charges. Part of a juror's job is to evaluate the credibility of witnesses.
In addition to live witness testimony, parties may also present previously recorded (audio or video) deposition testimony obtained during the discovery phase of the litigation.
Testimony is broken up into several phases: direct examination, cross-examination, re-direct examination, and sometimes, re-cross examination.
Direct Examination: When a party (either the plaintiff or defendant) calls a witness of their choosing to the stand, their questioning of that witness is called a “direct examination”. The purpose of the direct examination is typically to elicit testimony from the witness that will support that party's case or position.
Cross Examination: After a party has finished their direct examination of a witness, the other side (opposing party) has an opportunity to ask that same witness their own questions. The purpose of cross examination is typically to challenge the witness' credibility or call into question their version of the facts or events. Cross examination is limited to subject matter raised during the direct examination.
Redirect Examination: Following the cross-examination of the witness, the party that originally called the witness to the stand (i.e. conducted the direct examination), has a second opportunity to question the witness, through "redirect examination". The purpose of the redirect examination is to give a party the opportunity to fix or undo any damage caused by the other party's cross-examination. Redirect examination is limited to subjects raised during cross-examination.
Recross examination: Recross examination gives the cross-examiner an opportunity to respond to matters that may have been raised during the redirect examination of a witness. Recross examination can only touch on matters raised in redirect examination.
At trial, the plaintiff's side presents their case first, meaning they get to present all evidence (including witness testimony) in support of their case before the defendant gets to do the same. Once the plaintiff has concluded presenting all its evidence, it “rests” its case. The defendant is then allowed to present its own evidence and witness testimony to support its defense (i.e. convince the jury it is not liable or responsible for the plaintiff's injury). When the defendant finishes presenting or “rests” its case, the plaintiff has an opportunity to challenge or refute the defendant's arguments and evidence (called “rebuttal”) by introducing new or previously used evidence and/or witnesses. In some cases, the defense may be given the opportunity to respond to the plaintiff's rebuttal. When both sides have presented all their evidence and have been given the opportunity to respond to the other side's arguments and evidence, both sides are said to rest their case, meaning no further evidence will be presented to the jury.
Closing Arguments
Once both parties have rested their case they present their closing arguments. Closing arguments allow each side to summarize their case and highlight evidence favorable to their position. The plaintiff will try to convince the jury that the evidence requires them to find the defendant legally responsible for the plaintiff's injury. Conversely, the defendant will try to convince the jury that the plaintiff failed to provide sufficient evidence to hold the defendant liable. In some cases plaintiffs will also argue the amount of damages that should be awarded to the plaintiff should the jury find the defendant liable for plaintiff's injury. In some cases the issue of damages is argued in a separate proceeding following a jury's verdict in favor of the plaintiff.
Jury Instructions, Deliberations, and the Verdict
After closing arguments have been made by both sides, the judge provides “jury instructions” to the jurors. A jury instruction tells the jury what the relevant law is, and how the jury should go about applying the applicable law to the facts of the case. For example, if the case involves a claim that the defendant's negligent action resulted in the plaintiff's injury, the judge will provide instructions to the jury noting the elements of negligence and how each element must be proven by the plaintiff for the defendant to be liable. The judge will also instruct the jury on the degree of proof needed to prove a charge or claim. In civil (non-criminal) cases, such as personal injury, the level of proof required is a “preponderance of the evidence”.
After the jury is instructed they are sent to a private area to deliberate the case (i.e. discuss and weigh the evidence and arguments) and reach a verdict (i.e. come to a decision in favor of the plaintiff or defendant). In some cases the jury will also determine the amount of damages to be paid by the defendant if they find in favor of the plaintiff. In certain cases the issue of damages may be argued in a separate proceeding. Jury deliberations can take a few hours or even several weeks depending on the complexity of the case.
In most states, jury verdicts must be unanimous, meaning that all (usually twelve) jurors must agree with the verdict. Some states allow a 9-3 majority. If a jury cannot arrive at a verdict within a reasonable time, the judge may dismiss the jury and declare a mistrial (sometimes also referred to as a “hung jury”). In the event of a mistrial, the case may go to trial again with a new jury.
In rare cases the judge may also set aside or overturn the jury's verdict if the judge feels the jury's verdict cannot reasonably be supported by the evidence. The judge may also reduce the amount of damages awarded by the jury if deemed excessive.
Appeal
Even if a jury or judge rules in your favor, the case may not be over. The losing side may appeal the verdict to a higher court if they feel there was some type of legal error (e.g. the wrong type of law was applied or the judge issued a legally questionable ruling). The appellate court's job is to determine whether or not the law was applied correctly in the trial court. Factual error or disputes are not appealable. Appellate courts differ from trial courts – they do not use juries – instead they are usually comprised of a panel of three judges who render decisions based on both written and oral arguments made by both sides.
An appellate court may reverse, remand, affirm or modify the decision of the lower court, or parts of the decision. When an appellate court “reverses” a decision it means they decide that the decision of the lower court was wrong and effectively cancel (“vacate”) the decision. When an appellate court “remands” a decision, it means they are asking the lower court (e.g. trial court) to listen to the case, or part of the case, again and render another decision. When an appellate court “affirms” a decision, it means that they agree that the lower court made the right decision and the verdict stands. The appellate court may also modify the lower court's decision (e.g. change the amount of damages awarded).
A party who loses an appeal may seek to appeal the appellate court's decision to a higher appellate court, arguing that the lower appellate court erred in its decision. The entire appeals process can take years.
Arbitration
An alternative to going to trial is to seek arbitration. Arbitration is a private means of resolving disputes without going to trial. The parties select an arbitrator who essentially plays the role of both judge and jury. Arbitrators are often retired judges or highly experienced attorneys with knowledge of the lawsuit's underlying subject matter.
Similar to what occurs at a trial, both sides (plaintiff and defendant) make opening statements and present their testimony and evidence to the arbitrator. The arbitrator weighs the evidence and renders a decision, and issues an award if applicable.
Arbitration decisions may be either “binding” or “non-binding”. In binding arbitration the arbitrator's decision is final and enforceable by the courts – it cannot be appealed by the parties, except in very limited circumstances. In contrast, non-binding arbitration is not enforceable unless the decision is accepted by both parties.
The advantage of seeking arbitration is that arbitration is less formal and flexible in terms of scheduling and rules, laws, and procedures applied. Furthermore, arbitration is typically much faster than traditional litigation and going through a formal trial. Arbitration also may be much cheaper for the parties – especially if parties represent themselves or do not have attorneys representing them on a contingency basis. Arbitration is also usually conducted in private – there is no jury or open court with an audience. Most jury trials are open to the public and the proceeding and testimony may become public record. The privacy of arbitration may appeal to parties who are dealing with particularly sensitive or embarrassing subject matter. However, a big disadvantage of arbitration is that a plaintiff forfeits his right to have his case heard by a jury and his/her right to appeal if the arbitration is binding.
Defendants, especially businesses or corporations, typically favor arbitration. In some cases businesses may try to compel consumers to arbitrate their cases rather than litigating them through the court system through the use of arbitration clauses built into contracts or agreements for products or services. For example, a car dealer, contractor, service provider, or retailer may include in their sales contracts, license agreements, or in their website's “terms of use,” an arbitration clause requiring the consumer with a claim or grievance to waive their right to a trial and pursue their case through arbitration. Most consumers aren't even aware of these arbitration provisions as they usually appear in fine print or are buried in lengthy or confusing contracts.
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