Anatomy of a Personal Injury Case
Do I have to file a lawsuit to get compensation for my injuries? Will I have to go to court? How long does this whole process take? These are common questions people ask when wondering how to go about pursuing a claim against a negligent party in an auto accident or other personal injury. Below is an outline of how a typical personal injury case proceeds in New Jersey. If you have other questions or need to speak with an attorney about an injury you incurred, call De Frank, McCluskey & Kopp at 1-844-465-4487 for a no-cost, confidential consultation.
After the accident
In another article we discuss the steps to take after an accident to preserve evidence and protect your rights. This includes obtaining a copy of the police report and police witness interviews, and gathering photographs and documents related to the accident. Your attorney may also initiate a private investigation of the accident or an accident reconstruction.
Your attorney will also be gathering various medical reports, including your medical history as well as your current treatment and prognosis. Once you are declared medically stationary by your doctor, your attorney will have a fairly good assessment of what your present and future medical costs will be, as well as the projected amount of other legal damages, such as lost income or disability, pain and suffering, loss of quality of life, and so on.
Negotiations and Litigation
Armed with this evidence and information, your attorney will try to negotiate a settlement with the insurance company. If an acceptable settlement cannot be reached, or even if you are in the midst of negotiations but the statute of limitations (the deadline to file a lawsuit) is coming up, then it may be necessary to file a lawsuit. Filing a lawsuit does not mean that your case will go to trial. In fact, most cases don’t involve a trial. But initiating litigation helps to develop the facts of the case, flesh out claims and defenses, and home in on the important issues. An insurance company that was at first unwilling to settle for an appropriate amount may start paying more attention to the case when they see you are represented by attorneys who are not intimidated about taking matters to court and who have a record of success at trial.
Litigation normally proceeds in the following manner:
- Complaint – The injured party, known as the plaintiff, files a petition or complaint with the court that names the responsible party (known as the defendant), and describes the type of injury caused and the amount of compensation, or damages, being requested. A copy of the complaint is served on the defendant.
- Answer – The defendant has a certain amount of time to respond to the complaint by filing an answer, which admits or denies the allegations made in the complaint. In the answer, the defendant may set out any defenses to liability and may even make counterclaims saying that the plaintiff is the one who was negligent and caused the accident. The defendant may also file cross claims, saying that some third party is actually responsible for the accident, such as another driver or the manufacturer of a defective vehicle.
- Pre-trial motions – The defendant may file various motions trying to get the case dismissed by showing that the complaint was not filed properly for some reason. Cases can be won or lost on the basis of pre-trial motions, so it is important to be represented by knowledgeable and experienced attorneys who are familiar with law and motion practice.
- Discovery – Discovery is the stage where each party can request information from the other party to help build their claims or defenses. For instance, parties and witnesses may be questioned in person (depositions) or in writing (interrogatories). Documents from the other side may also be requested. There are limits to what may be discovered, and litigation at this stage often focuses on whether one party is complying with the discovery rules or not.
- Trial – If the case has not settled by the time of the date set for trial, the trial begins with the selection of a jury, where both sides get a chance to approve or exclude certain jurors. Each party can make an opening statement, and then first the plaintiff and then the defendant present their cases by calling witnesses and introducing evidence. Each party gets to make a closing statement to the jury, and then the case is turned over to the jury with a set of instructions on what questions to answer and how to answer them.
- Post-Trial and Appeal – The jury deliberates as long as necessary to return a judgment. A party can move the judge for a verdict before sending the case to the jury, or after the jury returns a verdict for a judgment notwithstanding the verdict, if the party can convince the judge the case is so one-sided that the jury need not hear the case or clearly reached the wrong conclusion.
If a judgment has been entered against the defendant, there is still the matter of executing the judgment. Various legal procedures are available to enforce or collect a judgment, including liens, garnishments, and examinations under oath. A losing party may also appeal an adverse judgment if the proper grounds exist and an appeal is filed in a timely manner.