Litigation is considered the process of taking legal action. In an injury claim, litigation typically ensues when the insurance company fails to make a reasonable settlement offer to the injured party. Litigation is the last resort for an injured party to recover the true value for the injury sustained.
The Filing of a Lawsuit or a Complaint for Damages.
Litigation starts with the filing of a lawsuit or a Complaint for Damages. The lawsuit must be filed against the Defendants individually. Outside of a few exceptions, the availability of insurance is not admissible in personal injury litigation, even though the insurance company will be the entity paying the settlement or verdict rendered in litigation. Once the lawsuit is filed, it must be personally served with a copy of the Summons to all potential Defendants. The Defendant then has thirty (30) days to Answer, or they can be found in Default. Once the Defendant Answers the allegations contained in the Complaint, the period of Discovery begins.
Discovery is a six-month period in litigation where each side can request information from the other side that MAY lead to the discovery of admissible evidence. What that means, is that both sides will be able to seek information from the other side which will likely not be allowed at trial and in most instances, is not relevant to the matter at hand. It is very important to be honest in Discovery, while most of the information sought would never be allowed at trial, this irrelevant information quickly become admissible if a party is not truthful about it during Discovery.
Discovery is obtained in multiple formats. Requests for Admissions, Interrogatories, Requests for Production of Documents, and Depositions are the primary Discovery devices used in litigation.
- Requests for Admissions: Requests for Admissions are general statements of fact sent to the opposing party which they must admit or deny. Requests for Admissions are a good tool used to eliminate areas of dispute in litigation. Requests for Admission are very important and if they are not answered in a timely manner, they will be deemed admitted.
- Interrogatories: Interrogatories are written questions asked under oath to the opposing party. Interrogatories will be asked about a wide range of topics; most will appear to not be related to the incident at hand but are used to gain a wide variety of background on a party in a lawsuit. It is important to be completely honest and transparent in Responses to Interrogatories as these can be used against you at trial.
- Request For Production of Documents: Requests for Production of Documents are requests for documentation which may have relevant information to the lawsuit, these requests can be served upon parties and non-parties to a lawsuit and can be quite voluminous.
- Depositions: Depositions are informal proceedings where parties to a lawsuit or potential witnesses give sworn testimony under oath. That testimony is transcribed by a court reporter and memorialized to better develop testimony at trial. Depositions have typically been held in person but since the COVID-19 Pandemic more have been conducted via video teleconference. The attorneys of record, the surrounding circumstances, and the presiding trial judge will all be factors in whether or not your particular deposition is held in person or via remote setting. For more information on Depositions, please visit our Preparing for Your Deposition Page.
Once Discovery has concluded, the parties are in a much better position to analyze both the strengths and weaknesses of their respective cases. And make no mistake, each case will have both strengths as well as weaknesses.
Following Discovery, the parties will typically engage in a mediation to try one last time to bring the matter to resolution prior trial. In most instances, the parties are ordered to mediation by the court. At mediation, the parties bring forth their arguments on the valuation of the case.
Each side will start at number, typically at a much higher or lower number than they would settle for with the understanding the parties will work to reduce or increase their number in an effort to reach a settlement amount which each party can agree to. Mediation is it is the last time the parties will have a chance to be involved in settlement negotiations as once the matter goes to trial, it is in the hands of the jury.
While mediations have a very high percentage of success, at the end of the day the parties will be able to decide if they are able to resolve the matter at mediation or move forward to a jury trial.
A Trial by Jury
A trial by jury is the final event in litigation. The majority of cases will settle before a jury trial but in order to ensure a fair settlement, the every case must be ready to be tried if needed. Out of approximately 100 cases in litigation, about 5 will proceed to trial. In a trial by jury, each side will present relevant evidence to a jury of their peers.
The trial will typically be held in the jurisdiction the Defendant resides and can last a day or two to a few weeks depending on the amount of evidence presented. Jurors will be chosen from a random panel, the parties will not necessarily be able to decide who is on the jury, rather each side will have an equal amount of “strikes” and can remove potential jurors from the panel. The remaining individuals who were not struck from the panel will be jurors and more importantly “finders of fact” in your personal injury matter.
After all the presentation of evidence through witnesses, each party will have their turn to do a summation of the facts or closing argument in which they attempt to sway the jury to seeing the evidence presented their way. This testimony is not evidence but will be crucial in getting the jury to analyze the evidence the way you wish for them to view it to find a favorable result. Following each side’s closing arguments, the case will be in the hands of the jury, twelve strangers brought in to do their civic duty and decide the outcome of your case. Jury outcomes are difficult to predict and both sides face potential risk when giving the case to a jury.
Do not hesitate to Contact Our Office should you have further questions or concerns about the litigation process.