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What You Should Know

What to expect as a plaintiff

So, you’ve been injured and you’re thinking of hiring a lawyer. You understand that you need legal representation to protect your rights and get the best possible recovery. But what does the process actually look like? What is it like to sue someone?

If you’re like me, you want to know what exactly you may be getting yourself into before you decide to proceed with taking legal action.

Obviously, each case is different, because each case depends on the parties, the injuries, the facts, the amount of insurance, etc. However, there are some stages that you can generally expect to go through if you pursue a lawsuit.

The Investigation – Your attorney starts looking into your claim and putting the pieces together as soon as you sign up (or even before). They gather witness statements, police reports, medical records, and any other records they believe will be important to the case. Gathering all the information is vital to determining what your case is worth and what the best strategy will be going forward. During this time you may still be receiving treatment for your injuries, and your attorney should be able to help guide you with this process as well.

The Demand – When your attorney has gathered the information that they need, they will usually send a demand letter to the potential defendant (or their insurance company). This letter lays out the basis for your claim and makes a demand for payment; either for the policy limits amount or some other amount based on the injuries, bills, and other hardships you have sustained. The demand usually begins a period of confidential pre-suit negotiation.

The Complaint – If the demand does not achieve the desired result, the next step is typically to draft a complaint and officially start a lawsuit. This is where everything kicks up a notch and starts to go on the record. Your attorney will most likely be filing motions and going to hearings to handle to any legal issues that arise, while also continuing to gather the facts and evidence that will be needed to prove your case at trial. Negotiations may continue after the Complaint is filed.

Discovery – Once the Complaint is filed and you are in litigation, a period of exchanging information will occur. Both sides will likely serve the other with interrogatories (written questions that must be answered under oath) and requests for production (asking for photos, documents, and other evidence to be turned over).

Then, depositions will be taken. This is a formal process by which the attorneys are allowed to ask each other’s witnesses questions, under oath, and in front of a court reporter who transcribes everything that is said. As the plaintiff, the defense attorney will likely take your deposition (your attorney will prepare you for the types of question to expect and what the process will look like beforehand). Your attorney will also be taking depositions of the opposing party and other witnesses.

A lot of the information that is exchanged during discovery is useful, and helps inform the course of the litigation, but is not actually admissible at trial.

Mediation – At some point prior to trial, your case will likely be referred to mediation. This is a type of alternative dispute resolution process that is meant to aid negotiations. In a mediation, all of the parties come together to present their case and their position. The parties then break off into separate rooms and the mediator goes between the rooms, both to pass settlement offers back and forth, and to discuss the strengths and weaknesses of the case with each party separately. A good mediator will help both sides see their case in a new light and help them get closer to a reasonable settlement.

Many cases settle at mediation. Even when they do not, negotiations often continue after mediation and can still be settled with going to trial.

Trial – Although the vast majority of cases settle without going to trial, sometimes it is just not possible for the opposing parties to see eye-to-eye, and the case must go before a jury. Trials vary in length, but a typical personal injury trial lasts about a week. Both parties must be there, in the courtroom, the entire time the trial takes places.

The first day of trial is typically given over to jury selection. Each attorney asks questions of the potential jurors to make sure they can be fair and are not biased one way or the other.

Then each side gives opening statements, followed by the presenting evidence (including questioning witnesses on the stand), and finally making closing arguments. The plaintiff presents their case first, as it is their job to prove the case while it is the defense’s job to tear the case down. Once all evidence has been presented and arguments made, the jury retires to make its decision. The jury gets to decide both which side won the case and how much money to award in damages.

Appeal – If trials are rare, appeals are exceedingly rare. But if some procedural issue or error comes up during the case that may have affected the outcome, the losing side my appeal. The client does not typically have a great deal of involvement in the appeals process because all of the evidence has already been presented at trial and new evidence is not typically allowed to be presented.

Your case may resolve at point along this journey. Your attorney will be by your side, advising you every step of the way about the risks and benefits of how and whether to proceed. It may seem like a daunting thing, being involved in a lawsuit, but that’s why you hire an attorney. My job is to take a great deal of that burden off of you, so that you can focus on your life.