What happens when your personal injury claim goes to litigation?

You were injured in an auto accident, a slip-and-fall, or on the job site. You sought treatment and amassed thousands of dollars in medical bills. Your attorney filed a claim with the negligent party or his/her insurer. Unfortunately, they refuse to settle for a fair amount. What now?

It's time to file a lawsuit. A small percentage of personal injury cases-about one in four in my experience-progress to litigation.

It's not the ideal situation, because it means you have to wait longer to receive compensation for your injuries. But it's often what needs to happen to motivate the at-fault party to settle. Very few personal injury cases progress to trial.

File the complaint

In California, you have two years from the date of the injury to file a personal injury complaint-the first step in the litigation process. In Oakland, your lawyer will file a complaint with Alameda County Superior Court. There are three different types of civil cases:

• Small claims (for $10,000 or less)

• Limited jurisdiction (for $25,000 or less)

• Unlimited Jurisdiction (for more than $25,000)

When your lawyer files the complaint, he will also request a Summons issued by the Clerk of the Court. He will then serve the defendant with the summons, complaint and any related documentation using a process server. The defendant has 30 business days to respond, usually by filing an Answer with the court.

Discovery

This is when the real work begins. Discovery is the process where both sides exchange information about the claims. Discovery involves several steps, including:

• Interrogatories. This is basically a Q&A series. Parties answer questions in writing, under oath. In a typical personal injury case, parties might ask for personal information (date of birth, employment history), as well as questions about the incident (Were you wearing a seat belt? Did a mechanical failure contribute to the incident?).

• Request for Production. One party asks the other for documents relating to the claim.

• Request for Admissions. Similar to interrogatories, but instead of questions, one party requests the other to admit to certain facts. Ex: "Defendant owned the 2007 Honda Civic he operated."

• Subpoena. The defendant can subpoena medical records of the injured party. Parties can also subpoena individuals to appear in court or for a deposition. Subpoenas are used to gather information that may be useful in the case.

• Deposition. A deposition is like an in-depth interview. After receiving discovery requests outlined above, a defendant can notice the plaintiff's deposition. Since the plaintiff is a party to the lawsuit a subpoena is not required.

In a deposition, you give your testimony, under oath, in front of a court reporter who provides a written transcript of the deposition. Your attorney will help you prepare. The parties can also depose experts such as accident reconstructionists or medical experts.

• Independent medical examination. In addition to answering dozens of questions, the defendant may also require you to submit to an Independent Medical Exam. The doctor will examine you and provide a written assessment of your injuries. The doctor's report includes his opinion regarding the cause of the injuries, any necessary medical treatment and whether you sustained permanent injuries.

Since the defendant's insurance company hires the "independent" medical examiner, the report will be written from that slant. These doctors know who pays them and they make findings accordingly. Your lawyer will likely attend the examination with you to make sure the doctor doesn't do anything that he shouldn't.

After discovery

After all that, the parties still have an opportunity to resolve the case without a trial. In cases that involve $50,000 or less, the court may order arbitration.

The more customary way to informally resolve cases these days, however, is by mediation, where the parties agree on a neutral party to discuss good points and bad points from the perspective of both the plaintiff and the defendant. Settlement demands and settlement offers are made. Most cases settle using this process, which is substantially less expensive than trial.

If the parties don't settle, the case moves to pretrial. Pretrial involves a mandatory settlement conference, which is the last-ditch effort for the parties to settle the case.

If the parties stillcan't reach a settlement, the trial is on!

If the jury decides in your favor, the case is usually over. The possibility of an appeal remains, but appeals from jury verdicts are extremely rare in personal injury cases.

As you can imagine, it can take a year or more for a case to progress from complaint to final decision. We aim to get the best possible outcome for our clients. When the opposing party doesn't agree to a fair offer, it's time to get the court involved.

Have you been seriously injured in a car, motorcycle or other accident? Contact The Law Office of David G. Smithfor a free evaluation of your claim.

Photo courtesy of SalFalko, Flickr

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David G. Smith, Attorney At Law
2201 Broadway
Penthouse 1
Oakland, CA 94612

Phone: 510-431-2598
Fax: 510-893-2701
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