One of the most common misunderstandings in personal injury is that your case begins when your lawsuit is filed. However, the personal injury lawsuit begins when you first speak to an attorney. When your attorney goes to file suit on your behalf he or she will have most likely have been working on your case for months or more before filing your lawsuit with a court of law.
Collecting Evidence and Finding Witnesses
The California statute of limitations for personal injury is two years from the date of the negligent act or omission. That means you and your attorney have at least two years (or longer depending on the specific type of negligence involved) for you to receive medical treatment and for your attorney to collect all the necessary evidence, and find all relevant witnesses to your personal injury claim. Whether your personal injury lawsuit is filed the day after you are injured or the month before the statute of limitations ends, there will be literally no difference in the eyes of the court. However, if your attorney files suit before collecting all of the relevant evidence and witnesses you may be at a disadvantage by filing prematurely. An experienced attorney will be able to say whether all avenues of investigation have been exhausted and will also try to negotiate a fair settlement for you before filing suit in the majority of personal injury cases. There are instances where filing suit immediately is the right action, but it is an exception rather than the common rule.
We are experienced trial attorneys who use our knowledge to push negotiations towards settlement without filing suit, and in the event that settlement is not possible, the efforts made towards settlement will aid in transitioning to the litigation phase of a personal injury claim. Once your attorney informs you of the maximum settlement offer from the defendant or the defendant’s insurer, you have the choice to accept that offer or reject it and file a personal injury lawsuit. We will give you the necessary information to make this decision.
Drafting a Complaint and Filing a Suit
Once you and your attorney decide that filing suit is the best option, your attorney will draft a complaint stating any and all claims against any negligent parties that contributed to your injuries. If your complaint does not include all of your potential claims, you cannot go back and file an additional lawsuit after the jury has returned a verdict. In addition to filing your lawsuit in the correct court of law, a process server approved by the court must personally serve every defendant named in your lawsuit.
Once a defendant has been personally served, he or she will have 30 days to file an answer with the same court, but in all cases must file an appearance with the court by a deadline set by the judge. After all defendants file an appearance or responsive pleading, a period of discovery will begin. Discovery is the legal term for a period of time where your attorney and the defendant’s attorney are allowed to submit written requests called Interrogatories, requests for admission, and requests for production of documents to each other. In addition to sending written discovery, both parties may subpoena witnesses, including the plaintiff and the defendant, to give oral testimony in front of a court reporter. This process is called a deposition or testimony taken under oath. A court reporter takes down every word that is said by both side including questions and answers. The court reporter then makes available a written transcript to both sides that can be submitted at trial as evidence.
There are many complex rules of procedure that outline what types of documents may be filed with the court for both the plaintiff and the defendant and when such documents may be filed during the course of the personal injury lawsuit. Assuming there are no issues in discovery, and both parties have received satisfactory responses, then a series of motions may be filed to organize the issues to be presented to the jury or judge before trial. Once all motions have been heard and decided by the judge a trial calendar will be set.
Setting a Trial Date
Most civil lawsuits are set on a trial calendar with a number of other cases to be heard during a specific period of time. For example, your case could be set for a particular week or a particular month and the judge calls up each case according to their number on the list or may skip around the list. Each judge even within the same county may have different ways to call cases up for trial. Just because your case is set on a trial calendar does not mean your trial will occur within that period of time due to other cases on the judge’s calendar. Occasionally, trials will be specially set on a fixed date either due to the length and nature of the case or at the request of both parties.
Once your case is called before the judge for trial you will need to appear as the plaintiff for the duration of the trial. Trial begins with something called voir dire. Voir dire is the process by which the attorneys for both sides select a jury to hear your case and render a verdict. In the event that your attorney requests a bench trial, you would not do voir dire as only the judge would hear your case, and not a jury. If you and your personal injury lawsuit attorney have elected to use a jury, it can take anywhere from half a day to several days to select a full panel of jurors and alternates.
After the jury has been selected, opening statements will be made by your attorney first, and then followed by the defendant’s attorney. Once opening statements are over, the plaintiff’s attorney then presents evidence for as long as it takes. Depending on how much evidence and how many witnesses will be called, this period can last from a few hours to several days. The defendant’s attorney then follows with their evidence and witnesses. Once all evidence has been presented and all witnesses have testified, the attorneys then give their closing statements. At the end of closing statements the jury is given a set of instructions by the Judge and then is sent out to deliberate.
The jury may take as long as they need to deliberate, review the evidence, and even ask the judge for clarification and instruction on certain issues. Depending on the complexity of your personal injury claim, deliberation could last between a few hours to a day or two. At the end, the jury will return a verdict form deciding in favor of the plaintiff or the defendant in addition to potentially awarding a verdict amount for the party the jury decided in favor of.
Have an Experienced Personal Injury Lawsuit Attorney by Your Side
Given the complexity of the above process it is important to select a personal injury lawsuit attorney with experience not only in settling cases before trial but also in selecting a jury and with knowledge of the procedural requirements of filing documents and trying cases before both judges and juries.