Most people don’t know what to expect when they are looking for a lawyer to handle their personal injury claim—the extent of many peoples’ understanding of the legal system is limited to what they have seen on shows like Law & Order and Boston Legal. This uncertainty can make the already stressful ordeal of taking someone to court even more difficult and unnerving.
Our attorneys have put together a guide on what happens during a personal injury lawsuit, and what the experienced lawyers at Ashton & Price will be doing on your behalf.
This is only meant to give you an idea of what to expect. If you have any questions or concerns, please contact us through our site, or call us at 916-786-7877. We’ll be happy to help.
Sending a Summons – The First Contact With the Defendant
Every lawsuit involves a plaintiff and a defendant. The plaintiff is the person or persons who file a lawsuit against somebody. The person who is allegedly responsible for the plaintiff’s suffering is the defendant. There can be more than one plaintiff and/or defendant.
When you are filing a personal injury lawsuit against the defendant—the driver of a car who injured you, the owner of a dog that attacked you, the owner of property on which you were injured—the first step is letting the defendant know that you are filing suit against them. Usually, this is done by sending them two legal documents:
- Complaint – A complaint is a legal document that describes why you are filing a lawsuit against them. It’s essentially a brief description of what the defendant did wrong that hurt you or your loved ones. It will also include a prayer for relief, which simply means how much money you want from the defendant.
- Summons – A summons describes who you (the plaintiff) are, what court the suit is being filed in, and how much time the defendant has to respond to your complaint by submitting an answer.
The Defendant’s Response
A defendant usually has about 30 days to respond to a complaint and summons. This defendant (or their lawyer) does this by submitting an answer, which is a document in which the defendant informs the court and the plaintiff if they admit to any of the allegations brought against them, and what allegations they consider to be false.
If the defendant believes that they have been wronged by the plaintiff, they may also send a counterclaim, which is a lawsuit against the plaintiff, or a third-party claim, which is a suit against another person or persons related to the case.
When a Defendant Tries to Dismiss a Case
If a defendant believes that your claims are entirely invalid, instead of filing an answer, they may instead choose to file a motion—a legal document directed specifically to a judge—requesting that the court dismiss the plaintiff’s complaint (that is, to declare at the plaintiff has no valid case against the defendant). In a motion to dismiss, the defendant can present a variety of arguments as to why the plaintiff has no case:
- Lack of Jurisdiction over the Subject Matter. This means that the court doesn’t have the legal authority to judge the type of case being made by the plaintiff. For instance, a state court may have lack of jurisdiction over a case having to do with something that happened in another state, or a tax court will have lack of jurisdiction over a case involving child custody.
- Lack of Personal Jurisdiction. This means that the court doesn’t have authority over the person you’re suing. For instance, if you are from Oregon and are on vacation in California, and get into a car accident with a driver who is from California, you cannot sue the other driver in your home state of Oregon’s court system. The reason is that the Oregon state court has no personal jurisdiction, because the defendant doesn’t live in Oregon, doesn’t do business in Oregon, and the incident in question didn’t happen in Oregon. In this case, only a California court would have the personal jurisdiction necessary to hear a case against the California resident.
- Insufficiency of Service. This means that there is a technical error in the complaint or summons that causes it to be in conflict with the requirements for filing a valid case. An example would be if the defendant or court isn’t specifically named in the complaint or summons.
- Insufficiency of Service of Process. This means that the complaint or summons wasn’t presented to the defendant in the proper legal manner. This would be the case if the summons or complaint was left on the defendant’s doorstep, rather than being presented to them in person.
- Failure to State a Claim Upon Which Relief Can Be Granted. This occurs when what the plaintiff alleges the defendant to have done isn’t something that is actually against the law, when the plaintiff has not provided enough evidence to indicate that the defendant has caused the plaintiff harm, or when there is no indication that the defendant has actually caused the plaintiff harm. This tends to only be an issue when a frivolous lawsuit has been filed, and the suit is essentially a waste of the court’s time.
- Failure to Join a Party (also known as “Failure to Join an Indispensable Party”). This basically means that the plaintiff is not the wronged person, or have legal authority to act on behalf of the wronged person. For instance, if your next door neighbor is hit by a drunk driver, you cannot sue the driver on behalf of your neighbor.
Generally speaking, as long as you have secured an experienced lawyer to act on your behalf, none of the above will be an issue. A good attorney will have determined beforehand that you have a justifiable reason for filing a lawsuit, and will file all legal paperwork in the correct manner.
If the defendant does not submit an answer within the allotted time, or does not appear in court, the court may make a default judgement against the defendant. In this case, the defendant has essentially admitted fault by failing to defend themselves.
After the Defendant Submits an Answer to the Complaint: The Discovery Process
After the plaintiff and defendant have properly notified one another, and if nothing has arisen that compels the court to dismiss the case, then the process of discovery begins. Discovery is when the two parties exchange legal documents and requests for information with one another as necessary, so that both sides have a complete understanding of all the facts and accusations. This is the most time-consuming and complex part of the legal process. In civil lawsuits, there are usually four forms of discovery:
- Interrogatories. These are simply written questions about details of the case to which the other side must submit a written answer. These can be very narrow and simple questions, such as “At what time did the accident occur,” or as broad as, “What exactly is it that the defendant did or did not do that caused injury to the plaintiff?” There can be dozens of interrogatories, and in fact in California there are legal forms with a list of interrogatory questions, on which the person submitting the interrogatory checks which questions they want the other side to answer.
- Document Production. These are written requests for copies of documents which the other side has access to, and which are relevant to the case. Examples include proof of insurance, property deeds, and traffic tickets or citations. Document production can also include requests to inspect a physical item or place, such as a car that was involved in an accident, or the location at which someone was injured.
- Admissions. These are questions posed to the other side which basically require only a yes or no answer. For instance, you might be asked, “Were you speeding when the accident occurred,” or “Did an employee tell you that the floor was slippery and needed to be cleaned on the day the plaintiff slipped and fell?” The other party submits a response to each question in which they either “admit” to it, or “deny” that it happened.
- Depositions. In a deposition, the person being deposed gives a spoken testimony of what happened—or what they saw happened—in front of a court reporter who transcribes what is said. Depositions may be requested of plaintiffs, defendants, witnesses, or other parties who have knowledge about the case.
Your lawyer will handle all aspects of the discovery process, both submitting discovery requests, and answering requests made by the other side. Again, given the complexity of this process, this is why it’s absolutely necessary to have a lawyer on your side when dealing with a personal injury case.
At the end of discovery, either or both sides may try to dispose of the case, or parts of the case. Under these circumstances, it is because both sides agree to certain facts, or certain facts are so obvious that they are indisputable, and the legal implications of those facts are obvious. In this case, a motion for summary judgment will be filed with the court, asking the judge to make an immediate judgment. An example of this would be if the plaintiff was injured by a drunk driver, and they submit a motion for summary judgment because records show that the defendant was found to be drunk by officers at the scene of the accident, and thus the defendant is obviously responsible for the plaintiff’s losses.
This basically fast-tracks the case to the stage where a judge simply has to make a determination as to how much money the defendant owes the plaintiff, or if the defendant owes the plaintiff nothing.
Resolving the Lawsuit – Arbitration or Trial
Sometimes, both parties will agree to resolve the case by going through alternate dispute resolution (ADR). This means that both sides agree to settle the case without going to court. This usually takes one of two forms:
- Mediation or negotiation. In mediation, the two parties sit down with a neutral third party—a mediator—and negotiate a legal contract in which the plaintiff agrees to withdraw the case, in exchange for the defendant paying a certain amount or performing certain actions. In negotiation, the two parties directly make an agreement with one another, without having a mediator facilitate the process. These processes can happen when one side or the other knows that they will almost certainly lose more money in legal costs and damages than they would by avoiding a court case.
- Binding arbitration. In this case, both sides agree to provide all of the facts and information of the case to a neutral party, and to accept whatever decision the arbitrator renders.
If both sides cannot come to an agreement, then the case will go to trial, where the plaintiff’s and defendant’s attorneys will present their evidence and arguments. At the conclusion of the trial, the judge or jury will decide who has won the case. Then the judge will order a judgment for the winning party, which may include a declaration that one party must provide money or other property to the other party.
The losing party can appeal the judge’s decision to a higher court, but it is very rare for an appeals court to overturn a lower court’s ruling. Additionally, if both sides bypass the court system and agree to a settlement, the settlement usually cannot be appealed.
Conclusion of the Process
It’s difficult to predict how long any one case can take. The entire process can take only a couple months, or the process can drag on for years. But generally speaking, the less money that is involved, the more likely it is that the situation will be negotiated and settled before going to trial.
The description above isn’t meant to be a complete description of the process of dealing with a personal injury claim. No two cases are exactly alike. The experienced attorneys at Ashton & Price can examine the particulars of your case, and give you a much more detailed explanation of what to expect in your situation.