There’s a lot of information out there about filing a lawsuit and going to trial. Everything from tense television dramas to your neighbor’s story about their divorce. It’s hard to know what’s real and what’s exaggerated or overly dramatized. Let’s get the easy stuff out of the way, anything you saw on Law & Order, The Good Wife, and Suites is not real life. While the reality is much less dramatic, the stakes are a lot higher. It’s often overwhelming to know what it means for you and your future to file a lawsuit.
Consider this: when you decide to file a lawsuit, your actions involve countless other people - court personnel, opposing counsel, the defendant, mediators, and more. As the plaintiff, you are the one who brought the suit. Although the car wreck wasn’t your fault, you were the one that decided to pursue further legal action. And that’s okay! Sometimes it feels like you have no choice but to file suit because the insurance company is doing everything in their power to belittle you and your pain.
Sometimes the decision to file a lawsuit is an easy one. If the offer from the insurance company is so low that it doesn’t pay your medical bills and attorney costs, then you have nothing to lose by filing suit.
More often than not though, the offer is within the realm of what a jury could possibly award for a case like yours, so the decision is much harder. Maybe the offer pays all of your medical and legal expenses, but it doesn’t leave much else for your pain and suffering or doesn’t pay for the time you missed from work. In that case, you have to balance the time and risk associated with litigation vs. accepting the offer and trying to put the crash behind you. It’s a daunting question.
Remember that you are not alone during this process! Your attorney will help you decide whether or not to file suit. While no one can predict the outcome of your case, your attorney will be able to give you a professional recommendation based on what they see happening at the courthouse in your specific area. We strongly encourage you to be open and frank with your attorney. The more information they have, the better they can advise you.
Litigation can take 1 – 2 years or more to conclude from the day you file the lawsuit. During that time, your attorney isn’t simply waiting around twiddling their thumbs. There is a lot to be done before you even think about stepping into a courtroom.
As soon as you give your attorney the go-ahead, they will start work immediately. They will draft the petition – which is the formal lawsuit – against all possible defendants. Defendants can include the driver of the other vehicle involved, the owner of the other vehicle involved, the employer of the other driver if they were on the clock, the driver of the vehicle you were in if you were a passenger, etc. Don’t worry, your attorney will sort out which defendants to include in the suit and will discuss your options with you before filing with the court.
As soon as the petition is filed, your attorney will start incurring costs on your behalf. Every stage of a lawsuit comes with associated costs and fees. Most, if not all, personal injury firms operate on a contingency fee basis which means they will pay the fees upfront on your behalf. They will pay for filing fees, services fees, the court reporter for depositions, mediation costs, expert witnesses, etc. Your attorney will recover those costs from whatever settlement or judgment they obtain on your behalf.
Once the petition is filed and accepted by the court, the court will issue a citation to be served to the defendant. The citation is a legal document that is served on the other party to notify them of the lawsuit filed against them.
After the defendant is served, they have to contact their insurance company who by now has most likely hired a defense attorney on their behalf. The defense attorney will file their formal response to your lawsuit and then you move into the written discovery stage.
Once all parties have been properly served, they have an opportunity to send written questions that the other party must answer under oath. They can also ask for certain documents, photographs, videos, witness information, etc. Your attorney will have some of the answers already just by virtue of representing you thus far, but they will need your help to fill in the gaps.
You should plan to set aside an hour or two to walk through the questions in your attorney. Some clients prefer to go over the questions in person and get it done in one meeting while others like to review the questions first then discuss them with their attorney at a later date. Don’t be afraid to speak up as to what you prefer! What your attorney writes down will follow you throughout the litigation process. Your answers must be accurate and succinct.
Your attorneys will also need a lot of documentation from you. Be sure to pull everything together for their review. Don’t worry about giving them too much information. Your attorney will be able to sort out what’s responsive to the specific questions and what is protected by privilege.
Throughout the litigation process, your attorney will gather copies of your medical bills and records on affidavit from your doctors. Even if they’ve already received your medical records, it’s essential that they obtain affidavits from the medical provider because this allows those documents to be admitted as evidence during the trial.
During the litigation process, you will be expected to make at least two crucial appearances before the trial. First, you will be deposed after written discovery is completed. Depositions are an opportunity for the attorneys to get information about what happened “on the record” which means that what you say can be used in the courtroom. Your attorney will work with you to schedule a time for the deposition and walk through your testimony to make sure you’re as comfortable as possible beforehand. The most important thing to remember is to simply tell the truth in as few words as possible. Being on record is intimidating. Telling a complete stranger whose job it is to question what you’re saying is uncomfortable and frustrating, but you can’t go wrong if you’re honest and succinct.
It’s important that you discuss all of the questions and expectations with your attorney ahead of time. Know what your deposition will look like. Be sure that you’re confident in your answers and the events that took place, as well as your injuries and the subsequent treatment.
After written discovery and depositions, both parties will likely have the opportunity to mediate the case. Mediation takes place at a neutral mediator’s office. You and your attorney will be in one room and the defense counsel and associates will be in another. The mediator’s job is to find a fair middle ground for settlement. The good news is that oftentimes mediations are successful and you can walk away with your case settled. However, if you don't feel as if the best offer is fair, you can decide to continue to trial. Again, we encourage you to listen to your attorney and their professional recommendation regarding the offers presented. If at the end of the day, you and your attorney decide to walk away from mediation without a deal, then the next step is trial.
The road to an actual jury trial is long and tedious, but you’ll get there eventually! Be mindful that it could take months or even years to get a trial date. The delay is not a reflection of your case. Remember that the court has to juggle schedules with both attorneys and both parties, along with their lengthy dockets.
Depending on the complexity of your case, your trial could take anywhere from 1 day to several weeks. Be prepared for whatever estimates and expectations your attorney tells you. Once again, it is absolutely crucial that you are present, attentive, and polite for every day of trial. Your lawsuit has brought the jurors there. They are taking time out of their daily lives to listen to your story. It’s only fair that you show them the same respect by being in the courtroom as well.
On the topic of respect, you should treat your trial as a professional event. Dress nicely. Don’t wear jeans, casual jackets, athletic wear or tennis shoes. You should be dressed in your Sunday best. If you have questions about your specific attire, your attorney can help you come up with a few solutions.
Most of the trial will consist of you sitting with your attorney at the plaintiff’s table. You will observe, document, and watch as the trial unfolds before you. It’s important to try and keep a level head while the other attorney does their job, instead of letting your feelings of the wreck cloud your sensibility.
When you’re called to the stand, you’ll testify, much like your deposition. Both attorneys will ask you questions about the wreck and your treatment. The best advice that you can take away for your testimony preparation is this: just be honest, vulnerable, and speak your truth. Answer the questions to the best of your ability and be honest if you don’t know the answer. This is the easiest and best way to avoid hurting your case.
At the close of your trial, the jury will go to another room to deliberate. Once again, this can take anywhere from a few minutes to a few days. Tensions are usually high as you wait for these strangers to determine the outcome of something so important for you to remain cool and collected.
After the verdict is read, your trial is concluded. Congratulations!
I wish it were easy enough to simply give you the proceeds and handle everything that very day, however, it’s not. After trial, your attorney will prepare the final judgment which memorializes the verdict. They’ll file it with the court and once the judge signs off on it, the insurance carrier will cut your attorney a check. While they wait for the check to arrive, your attorney will negotiate any outstanding bills or liens to try to maximize your recovery.
After a trial is over, none of our clients have ever said, “Gee, that was fun. Let’s do it again!” Litigation is not easy for the plaintiff. For months and maybe years, the defense attorney is going to do everything they can to question the severity of your injuries and belittle your claim. If you choose to file a lawsuit, you must remind yourself that you’re in it for the long haul and that you have an attorney that you trust and respect to take you through it. You’re not in it alone!