The Basics of Personal Injury Litigation
Sep 29 2017

The Basics of Personal Injury Litigation

Slip-and-falls, dog bites, car accidents, and other personal injuries are incredibly disruptive on very many levels. The medical bills, which can easily be tens of thousands of dollars or even more, quickly pile up. Meanwhile, the insurance company calls almost constantly demanding to settle the case, even though you are still unable to return to work. On top of that, there is so much emotional and physical pain that it seems like life may never be the same again. Fortunately, the personal injury litigation process addresses all these issues.

An attorney can connect victims with a qualified injury specialist who will charge no money upfront. Furthermore, your attorney handles the insurance company for you, so you can simply focus on getting better. Finally, although the financial compensation available cannot return things to the way they were, the money will greatly help you and your family adjust to the new normal.

Parties in a Personal Injury Litigation Matter

The victim, or the victim’s legal representative, is the plaintiff in a personal injury litigation case. As such, the victim/plaintiff has the burden of proof to prove negligence by a preponderance of the evidence, a legal term which means “more likely than not.” In most contexts, negligence is simply a lack of ordinary care. Whether or not the case actually goes to trial, and it most likely will not, this requirement looms large in every phase of the case.

The tortfeasor (allegedly negligent actor) is the defendant. If the tortfeasor had an auto, homeowners, business liability, or other insurance policy, the insurance company has a duty to provide legal representation in every phase of the personal injury litigation case. So, for practical purposes, the victim/plaintiffs’ opponents are not the tortfeasors themselves, but the insurance companies that represent them.

In many situations, the tortfeasor is not the only person who is responsible for the victim/plaintiff’s damages. Various legal theories may draw third parties into the litigation as well, such as employers, property owners, or other business owners. Although these third parties were not personally responsible, they are ultimately responsible, because they created the environment that led to the victim/plaintiffs’ damages.

Where to File

As the filing party, the victim/plaintiff may have some discretion as to where to file a legal claim for damages. Typically, the proper jurisdiction is the county where the plaintiff resides or where the car crash or other incident took place. If there is a choice, an attorney decides where to file the personal injury litigation case based on a number of factors, including:

  • The convenience of the plaintiff,
  • Where the physical evidence is located,
  • The convenience of the witnesses,
  • Any procedural abnormalities in certain courts, and
  • How jurors in that jurisdiction are likely to view the facts of the case.

If the evidence is rather strong and liability is reasonably certain, many personal injury litigation matters settle before the plaintiff even files a claim. However, the great majority of these cases are settled in court, at least to some extent.

Pretrial Motions and Discovery

Whereas a personal injury attorney is committed to maximum compensation for victims, an insurance company lawyer is committed to minimum compensation for victims. This is because these companies lose money when they pay personal injury litigation claims. This process usually begins with procedural motions.

Some of these actions, like a motion for summary judgement, are designed to deny the victim/plaintiff a day in court and throw the case out altogether. Others, such as motions in limine, strive to limit the evidence or arguments that the victim/plaintiff can bring up and therefore make it harder to meet the aforementioned burden of proof.

Pretrial motions are argued in court, but the discovery process takes place almost entirely out of court. Essentially, the parties exchange information about their respective cases to avoid what the law calls “trial by ambush.” Such exchange usually takes place both in writing, by exchanging key documents, and in a nonwritten form, such as depositions and medical examinations.

Resolving a Personal Injury Litigation Matter

Most all of these cases — up to 90 percent according to some estimates — are settled out of court through either informal or formal mediation.

Informal mediation usually happens through an exchange of letters, phone calls, e-mails, and other communication between the attorneys for the two sides. These types of negotiations are usually successful where there are few disputed issues and the outcome at trial is reasonably certain.

In other situations, the judge overseeing the case will appoint a third-party mediator who helps to facilitate a settlement between the two parties. These sessions usually occur in an office building and consume either a half or a full day. If the mediator is successful, the case is essentially over at that point. If the mediator is unsuccessful, the parties schedule a trial date.

Reach Out to an Experienced California Personal Injury Attorney Today

If you or a loved one was hurt or killed in an accident that was someone else’s fault, contact Russell & Lazarus, APC, to start your personal injury litigation claim today. Our firm does not charge upfront legal fees in these cases.

Request A Free Consultation

Our full time staff is ready to evaluate your case submisssion and will respond in a timely manner.

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