If you have been injured and you believe that the injury is the fault of another person (or a company), you can pursue relief in court to seek redress for the harm that you have suffered. The process, however, does not unfold overnight; in fact, there are several stages to a typical personal injury case, and each unfolds sequentially until you find yourself on the courtroom steps—and possibly in front of a jury. This article discusses the five stages to expect.
Hiring an Attorney
The first step is to hire an attorney. Personal injury cases are very difficult to litigate "pro se," i.e., on your own and without the assistance of an attorney. (Though some brave litigants have tried.)
If you wait too long to hire an attorney, your case could be imperiled by what is known as the "statute of limitations" for your claim. Every jurisdiction (each state, plus the District of Columbia) maintains its own set of deadlines for the filing of a legal claim in court. The deadline depends on the type of claim and your jurisdiction. Special deadlines often apply in medical malpractice cases. If you wait too long after your injury to consult with an attorney, the attorney may not be able to assist you at all in filing a claim on your behalf.
Even within the personal injury field, there is a great deal of specialization among attorneys, and it is helpful to consult with a personal injury attorney who has previously handled one or more cases involving the same specific manner of causation of your injury.
Investigation of Your Claims and the Extent of Your Injuries
After you retain counsel, your attorney will investigate your claims prior to filing suit against one or more defendants. The end result of this process, hopefully, is that the attorney concludes that the elements necessary to state a claim are satisfied so as to justify filing the lawsuit. There are some incidents for which no recovery may be obtained because it is impossible to determine who may have caused your injury; or, similarly, it could be impossible to conclude that a third party is legally responsible for having breached a duty of care toward you.
Your attorney will also investigate the extent of your damages. Frequently, this requires obtaining a medical examination and diagnosis from a doctor who can offer insights into the diminished state of your physical condition as compared to the normal (non-impaired) state of your health.
As part of the damages analysis, your attorney may also investigate the extent to which you have lost wages as a result of the injury. If your injury forced you to miss work, your attorney will ask for your salary history (and possibly pay stubs) to show that you couldn’t work during certain time periods. In instances of serious injuries, which prevent you from working in the future, your attorney (sometimes with the assistance of a hired expert) will attempt to project the wages that you will lose going forward as a result of your injury.
Presuming that at least one party can be identified as legally responsible for your injuries, your attorney will assess which individuals or companies should be named as defendants. This can often be a difficult assessment if, for example, it is clear that a medical device caused harm to you on an operating table, but it is unclear if a surgeon’s shaky hand, a manufacturer’s loose part, or even a distributor’s faulty packaging is most to blame for your injury. The attorney’s investigation may only reveal a part of the picture of what caused harm to you, leaving the remainder to be developed during the course of "discovery" in the litigation.
Motion to Dismiss
After your attorney completes his or her investigation of your claims, if the attorney concludes that all the legal elements of your claim are satisfied, he or she will file a complaint on your behalf. Although a discrete event, the filing of the complaint does not really signal a discrete stage in the case, because it is the event that immediately follows the filing of your complaint that brings about a watershed moment in your case: the defendant’s filing of a motion to dismiss your complaint.
After being served with the complaint, the defendant in your case is required to either answer your complaint, or file a motion seeking its dismissal. Most of the time, the defendant files a motion to dismiss, which seeks to persuade the judge that, as a matter of law, you would fail to prevail at trial even if all the facts alleged in your complaint were true. If, by contrast, the defendant elects to answer your complaint, the defendant must either admit or deny each of the factual contentions asserted in your complaint. This can be a risky proposition for a defendant, in part because the defendant itself will have to investigate many of your allegations before being certain as to its own position on your allegations (much like your attorney investigated your claims before filing suit).
In some instances, your attorney will send a demand letter to the defendant(s) before filing the complaint. The purpose of this demand letter is to ascertain whether the defendant would be willing to settle your claims even without you filing a lawsuit. The letter threatens to file the lawsuit. This tactic (by plaintiffs) can be successful, but a defendant can also view a demand letter as a sign of weakness if the plaintiff’s attorney seems too eager to resolve the case without proceeding to litigation.
If the court does not dismiss your complaint upon the defendant’s filing of a motion requesting dismissal, your case will proceed to discovery. During the discovery process, both parties will attempt to learn more about the documents and eyewitness testimony underlying the other side’s claims and defenses. You can almost certainly expect to be deposed during the discovery process, by opposing counsel. Having your deposition taken can be stressful, as it is an adversarial experience, but you’ll be provided with at least two weeks’ advance notice of the deposition date, and your attorney will be available to provide advice in advance. Your attorney will also be present at your deposition to defend you. "Defending you" does not include attacking the defense attorney’s legal strategy or suggesting answers to you during your deposition, but it includes lodging objections and urging opposing counsel to move on if questioning becomes repetitive or harassing.
Often, the outcome of personal injury cases can hinge on the expert report and related testimony offered by expert witnesses for each party. An expert witness can testify to subjects that are "beyond the ken of a layperson" (ordinary juror) and that bear on important subjects in your case, but cannot offer factual eyewitness testimony.
Judgment, Trial or Settlement
After the close of discovery, either your attorney or the defendant’s attorney may move for a summary judgment, which urges the court to rule in one party’s favor based on how the law in your jurisdiction applies to all "undisputed" facts in the case (as established in discovery). If the court denies both parties’ motions for summary judgment, the case will proceed to trial. If the parties decide to avoid a trial, they may do so by settling the case (hopefully on terms that you are happy with, or can live with). It is also possible that your case could settle prior to the close of discovery, but the closer the case advances toward the conclusion of discovery, the more eager each party’s attorney may be to learn if the court would rule in their favor on a motion for summary judgment.
The above article does not provide legal advice and instead provides general information.