If you are trying to make a decision about whether or not to file a personal injury lawsuit, you may be wondering about the process. Let’s say you have a lawyer who has agreed to take your case. What happens next? And how likely is it that you will end up in court? Let’s answer some of the most common questions our plaintiffs have about when a case goes to trial.
You might be surprised to learn that, in the United States, of those cases that don’t get dismissed by the court, only four to five percent of personal injury cases go to trial. That means that about 95% of cases are settled out of court. But before we talk about what happens in court, let’s back up and review how your case actually gets to court.
Meeting With An Attorney
Once you think that you may have a claim against a business or individual for causing you harm, you’ll speak with a personal injury lawyer. Many attorneys offer free case evaluations, so that you can determine whether you have a claim that could be successful. When you have your first meeting, you’ll provide information to the lawyer about what led you to want to file a lawsuit and answer a series of questions. The more information you can provide to your attorney, the better he or she will be able to determine the best next steps. In addition to discussing the details surrounding your case, the lawyer will talk to you about practical matters, such as the different expenses and fees and how long they believe it will take to resolve your case. Most, if not all, personal injury lawyers work on a contingent fee basis. That means that you don’t pay for any expenses, including the lawyer’s fees, unless they win your case. If the lawyer agrees to take your case, you’ll sign a representation agreement stating that they will officially be your attorney for this particular case.
Filing Papers and Fact-Finding
At the beginning of a lawsuit, your attorney will file court documents stating the facts that support your claims and who you are suing. In Texas, these documents are called the “original petition.” In addition, your attorney will prepare and file what are known as a “summons,” which is a notice to the defendant about your lawsuit, and “service of process,” which is the procedure by which notice of the lawsuit is actually given to the defendant. The defendant typically has a limited time in which to respond to your original petition. When responding to an original petition, a defendant will usually just file what is known as an “original answer.” In this original answer, the defendant will often just generally deny everything in your original petition until the defendant has a chance to discover more facts about the lawsuit you have filed.
After your original petition is filed, the “discovery” process begins. Discovery is a term used to describe written requests for information from the defendant and any non-parties that may be helpful to your case. Such requests include written questions (interrogatories), requests for production of documents and inspection of premises or land where the injury occurred, and depositions. Depositions are interviews of witnesses, which are documented by a court reporter and involve an attorney asking the witness a series of questions. Interrogatories are written questions submitted to the defendant that are to be answered and sworn to in writing. Both sides must have access to all the documents which relate to the case. The defendant can and will apply these same discovery requests and procedures to you as well.
Resolving Your Case Before Trial
Much of what happens before a case can go to trial is known as “motion practice.” Motions are requests filed by lawyers asking the court to decide an issue relevant to the case. Such decisions are known as “rulings.” Some rulings might even end the lawsuit before it ever goes to trial. For example, the defendant might file a motion to dismiss. A motion to dismiss the case might be filed for:
- Lack of subject matter jurisdiction (the court doesn’t have the legal authority to rule on your case)
- Lack of personal jurisdiction (the court doesn’t have legal authority over the defendant because the defendant resides outside of the court’s “jurisdiction”)
- Improper venue (the lawsuit hasn’t been filed in the correct court)
- Insufficient service of process (the defendant wasn’t given proper notice of the lawsuit)
- Failure to state a claim upon which relief may be granted (there is no legal remedy for the harm caused you often because either the defendant’s conduct isn’t considered wrongful in the eyes of the law or your harm cannot be actually traced to the defendant’s wrongful conduct)
Once the case is further along in the discovery process, the defendant may also file what is known as a motion for summary judgment. A motion for summary judgment will be granted if the defendant can show that you, as the plaintiff, cannot prove some element of your claim. Typically, in a personal injury lawsuit, a plaintiff must have evidence to support each element of his or her claim. A negligence claim, for example, consists of the following three elements: 1) a wrongful or negligent act or omission on the defendant’s part, 2) a duty owed to the plaintiff by the defendant not to commit that wrongful or negligent act, and 3) a harm to the plaintiff caused by that negligent or wrongful act or omission. If you do not have sufficient evidence to support each and every one of the above elements, then summary judgment could be granted against you and your claim will be permanently denied.
That being said, legal claims are often resolved before trial through a negotiated settlement process. When this happens, the plaintiff agrees not to pursue any further legal action in exchange for a payment from the defendant or insurance company. In many instances, both parties may agree to mediate the case prior to the case going to trial. In a mediation, both parties present evidence that supports their claims while a neutral party—the mediator—tries to get the two sides try to agree on a settlement amount. If the parties do not agree, the case often then proceeds to trial.
When Your Case Goes To Trial
What does going to trial mean, exactly? If you are involved in a personal injury case, a trial provides the opportunity for the plaintiff to argue his or her case so that the judge or jury can examine the evidence, decide what really happened and rule on whether to find the defendant liable or responsible for the plaintiff’s injuries.
Typically, a personal injury trial consists of choosing a jury, opening statements by the lawyers for each side, witness testimony and cross-examination, closing arguments by each side, jury instructions given by the court and deliberation—that is consideration of all the facts and the law that applies—by the jurors. Once the jurors have made their decision, a verdict will be issued by the court.
After jury selection, each side has a chance to make its case in opening statements. The witness testimony and cross-examination stage is the main part of the trial. The plaintiff works to convince the jury that the defendant is liable for the damages or harm caused to the plaintiff. Witnesses and experts are called to testify, in which they take an oath to be truthful and answer questions asked by each side’s attorneys.
Once both sides present their case, closing arguments offer once last chance to convince the jury before their deliberations begin. The judge provides specific instructions to the jury to help them make their decision and then the jurors consider the case as a group. Once the jury has made a decision, the judge announces the verdict.
What Happens After a Trial in Court?
If you win the case, the defendant is often required to pay monetary damages. Ordinarily, an insurance company is involved and payment of your damages should not be a problem, because the insurance company is prepared for this very type of situation. However, in some cases, when the jury or judge awards you damages in your personal injury lawsuit, the losing party may not have insurance or may refuse to pay the judgment amount or follow the court order. In most states, you can locate a person’s sources of income or assets during post-judgment discovery. You may even be able to collect your settlement from the opposing side’s paychecks.
Slack Davis Sanger Can Help You During All Stages of Your Personal Injury Case
Our legal team at Slack Davis Sanger has the experience and skills to guide you through each stage of the process. Whether it’s asking the right questions to gather information to support your side, investigating the defendant to help the judge and jury understand how the defendant could have avoided hurting you if it had just done the right thing, presenting evidence at trial or helping you secure a settlement, our attorneys will be with you every step of the way.