I wish the legal process moved as quickly and smoothly as it does in legal dramas on TV; those stories always happen the same way. Someone gets hurt, they file a lawsuit, they go to trial and the injured party wins - all in less than 60 minutes!
In the real world, it's not quite that simple. The legal process can be easily broken into two stages: pre-litigation and litigation.
I call all activity before a lawsuit is filed "pre-litigation" and all activity after "litigation." Litigation doesn't begin until a lawsuit is filed at the courthouse.
Lawsuits are filed every day in Texas, but rarely are they filed immediately after an accident occurs. There are two basic reasons to delay filing a lawsuit:
- To try to see if the case can be resolved without having to file suit
- To complete an initial investigation of the facts surrounding the case
In my law practice, I typically attempt to resolve a case without filing a lawsuit as long as two criteria are met:
- Liability must not be disputed (one person is clearly at-fault for the accident)
- My client's damages must not be life-changing
In car accident cases, for instance, lawsuits aren't filed because liability is non-disputable. This is because the responding police officer will write a follow up report that clearly outlines "this person caused the accident because of this and that reason." Since we trust police officers to tell the truth, we can use these reports to determine the at-fault driver.
Sometimes, however, the police officer isn't sure who caused the wreck and doesn't assign fault. In other cases, the facts of the accident are in dispute. In these instances, it's unlikely that the case can be resolved without filing a lawsuit.
When deciding whether to immediately file a lawsuit or try to negotiate a settlement, I also look at the extent and severity of injuries. If I'm dealing with a very serious and permanent injury case, or even a death case, I'll hardly ever settle without a lawsuit. Why? As an attorney, I must convince the insurance company to award my client (the injured victim) all the money they deserve to cover the cost of their injuries. The bigger the injuries, the more money they'll need, and the less likely it is that the insurance company will want to cough up the entire amount.
However, when the insurance adjuster knows that a trial and jury will be involved, they're more likely to give my client the fair amount they deserve.
In short, I find it's usually best to go directly into litigation when liability is in dispute or the damages are severe and permanent. In those situations, trying to resolve cases without a lawsuit is a waste of time.
Even in cases where I decide not to try for a pre-litigation settlement, I sometimes find it's in my client's best interest to delay filing a lawsuit for a while. This is because I want to conduct an investigation before the insurance company conducts their own investigation. If the insurance company doesn't know about a case, they can't do anything to try and skew the results in their favor.
Starting A Lawsuit
Litigation starts when an attorney drafts and files a document, called an original petition, with the appropriate court. Most injury cases are filed in the state court system. Sometimes you'll have a choice as to which county in Texas to bring the suit, since you are able to file a lawsuit in either the county where the accident occurred or in the county of the negligent person's residence. The attorney also has to decide whether to file the suit in county court or district court, which usually have different jurisdictional limits.
The injured person (the one who is suing) is called the Plaintiff. Once the Plaintiff's attorney pays a filing fee and files the lawsuit at the courthouse, a court clerk issues a Citation which is attached to the Original Petition and served upon the person or company responsible for the injury, called the Defendant. When the Defendant has been served, his or her lawyer has approximately 30 days to file an Answer with the Court. This period gives the Defendant time to forward the lawsuit to his or her insurance company so that legal representation can be obtained. Once the insurance company lawyer files an Answer with the Court, the lawsuit is off and running.
The attorneys for both the Plaintiff and the Defendant typically exchange written discovery soon after the Answer is filed. There are some standard questions which must be answered by both sides. Also, each party gets to send specific Interrogatories (or questions) to the other side. Additionally, each side is allowed to request documents which might be relevant to the accident or the injuries.
On a truck accident case, for example, I request documents from the defendant trucking company relating to the federally required trucking logs to see how long the driver had been on the road at the time of the accident. I also request the GPS and maintenance records relating to the truck and the driver's employment file. This is just the tip of the iceberg of documents I request in a major truck accident case.
Each side has 30 days to respond to the other side's written discovery. During that 30-day period, the parties will meet with their respective attorneys, provide necessary information and documents and the attorneys will compile the final answers.
After written discovery has been exchanged, each side will typically evaluate what the other side has produced and determine whether any additional information is necessary. Many times the written discovery answers will prompt the need to request additional information from the other side or information from outside sources who are not involved in the lawsuit. For example, if I am suing a truck driver, I might subpoena his driving records in the state where he has a driver's license. I might subpoena his employment records from any of his previous employers to see why he no longer works there. These files can sometimes be a treasure trove of information on a truck driver's past history.
Typically, in a personal injury case, the Plaintiff will be required to disclose all medical providers he or she has seen after the accident and all his or her medical providers seen for any reason in the 10 years prior to the accident. Once the Defendant's attorney receives this information, he or she will obtain the medical records from both the pre accident and post-accident medical providers (the attorney will do this even if he or she has copies of the medical records which were previously provided by the Plaintiff's lawyer).
Assuming you are able to show that the other person was "negligent" and that you did sustain an injury, the focus then turns to causation. You must prove that your injury was indeed caused by the negligent action. In most situations, this is easy to do as you were clearly healthy before the accident and following the accident you are injured. Proving causation becomes much more difficult when you already have an injury which has been re-injured in your current accident. These "pre-existing injury" cases sometimes require expert medical testimony to show what damage was caused by the recent accident and what damage was already present. Proving "causation" also becomes difficult if all of your injuries are not completely reported to your doctor in a timely manner.
At some point, a case is usually referred to mediation, which is essentially a meeting where all the parties and their lawyers get together to see if the case can be settled before trial. The mediation is run by an unbiased attorney called a mediator. At first, all of the people attending the mediation sit in one room and the attorneys discuss their client's positions. Then the parties go into separate rooms and the impartial mediator moves back and forth between the rooms, delivering offers and counter-offers. A good mediator does more than act like a carrier pigeon, and will challenge the attorneys and their clients to realize and discuss the strengths and weaknesses in their cases. In most counties in Texas, the court will order you to mediate at some point before trial. Some cases go to mediation more than once.
Litigation Experts (Expert Witnesses)
If mediation does not resolve the case, then usually the next step is for any designated experts to be deposed. The hiring and deposing of expert witnesses is a very costly part of the entire litigation process which is why both sides try to avoid doing this if at all possible. It's always a balancing act between spending enough money to position your case for a good resolution and not spending so much that it makes resolution impossible. An experienced attorney is good at balancing this expense issue and always keeps the end goal of maximizing the client's recovery front and center. Expert witnesses are often needed to offer their expert opinions on both liability and damage issues. For instance, if a case involves a complicated truck wreck, an accident reconstructionist may be hired to develop a theory on the cause of the accident. Other cases may require a medical expert to testify as to the future medical needs of an injured party.
Once all of the requested records are received from the medical providers and other parties, the next step is for the involved parties to give their depositions. A deposition is the one and only chance that the opposite side's attorney has to sit down and ask the opposing party questions. Before my client gives a deposition, we meet in my office and go over (in detail) what to expect at the deposition. The more prepared we are, the easier it is on my client. After both parties have given their depositions, there are sometimes other depositions taken of relevant witnesses and medical providers.
The trial process can be so complicated that entire books are written on it. Once again, a trial never moves as quickly and smoothly as those TV dramas, but trials are indeed a fascinating part of the civil justice system.
When a case is eventually called to trial, each side will present its case to the jury. The length of the case depends on the complexity of the legal matter as well as the temperament of the presiding judge. Some judges move cases along much faster than others.
The trial process starts out with voir dire, which is Latin for "to speak the truth." The voir dire process is also called jury selection, but it's really designed to eliminate who you don't want on your jury. A jury panel is brought into the courtroom, each with an assigned number. After the judge educates the jury panel on the voir dire process, the Plaintiff's attorney starts the case by asking the jury members questions. The main purpose of these questions is to try and determine which panel members will not be good for the case. For example, if you are suing a doctor, you probably don't want a juror who's in the medical profession or has family members or close friends in the medical profession.
After the Plaintiff's attorney finishes asking questions, the Defendant's attorney gets to ask the jury panel questions as well. The defense attorney obviously wants to find out which of the jury panel members will possibly be overly sympathetic to the Plaintiff. At the conclusion of the voir dire process, each side gets to "strike" the panel members that their side finds most undesirable. In Texas District Court, each side is generally given six strikes (each side is usually allowed three strikes in Texas County Court). In District Court, the judge then calls the first 12 panel members who are not stricken by either side (for County Court, it is the first six members) and these people are now the jury members which will hear and decide the case. In a perfect world, the voir dire process will eliminate the people who have biases for or against one of the sides resulting in 12 fair and impartial jurors. However, it's extremely hard to select a perfect jury since there are so many ways a person can be biased.
Opening to Judgment
The next step is for the attorneys to give opening statements. An opening statement is an overview of what the evidence is expected to show. It gives the jury a road map of what the attorneys think the witnesses will say when they are on the witness stand. Sometimes the attorneys don't disclose everything, as they might be keeping a trick up their sleeve-so to speak-to use later on in the trial.
After the opening statements, the evidence presentation begins. The Plaintiff has the burden of proof, so the Plaintiff's evidence is presented in the order his or her attorney chooses. Each witness is sworn in and asked questions by the Plaintiff's attorney, called direct examination. After the Plaintiff's attorney is finished questioning each witness, it's the defense attorney's turn to ask questions; this is called cross-examination. This pattern continues until the Plaintiff has called to testify all of his or her witnesses. The defense then gets to present its case and call any witnesses it thinks will help prove its position. Likewise, the Plaintiff's attorney is given the opportunity to cross-examine each witness called by the defense.
At the conclusion of the evidence presentation, the judge will read to the jury written instructions, called a Charge. The Charge includes specific questions for the jury to consider when determining whether or not the Defendant was negligent and whether the Plaintiff should be awarded monetary damages. In Texas District Court, with a 12-person jury, the jury's decision does not have to be unanimous and it only has to be agreed upon by at least 10 of the 12 jurors (at least five out of six jurors must agree on a decision in a Texas County Court). The jury's decision is called a Verdict.
After the Verdict is received by the Court, each side's attorney will get to make arguments as to how the Verdict should be interpreted. Ultimately, a Judge enters a Judgment. If either side wants to appeal, they must file the necessary paperwork to appeal the Judgment to the appellate court. If neither side files a timely appeal, the Judgment entered by the Court stands as final. If the Judgment is in favor of the Plaintiff, whatever dollar amount awarded will be paid at that time by the Defendant's insurance company. If the Judgment is in favor of the Defendant and is not appealed by the Plaintiff, then the case is over.
This process can seem very complicated and intimidating, but please try not to be alarmed. When I talk to my doctor-or even my car mechanic for that matter-I don't really understand or appreciate every part of what they are saying, but I do know that I trust them to make all the right decisions. The same goes for the legal system when pursuing a legal claim. You don't need to worry about the intricacies of the legal process; you should let a personal injury attorney do that for you. Simply hire the right attorney for your case and put your trust in him or her as the expert in the legal field to go out and win fair compensation for your injuries.
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