Steps in a Personal Injury Lawsuit

Learn what to expect in your personal injury lawsuit.

Every personal injury lawsuit is unique, but there are common elements that every person suing (called the plaintiff) and the person being sued (called the defendant) can expect to encounter. This article discusses the major litigation landmarks and processes the plaintiff and defendant can expect, from the beginning of the lawsuit to its resolution.

The Plaintiff is Injured and Hires an Attorney (Maybe)

At the beginning of any legitimate personal injury case is, obviously, a personal injury. However uncertain the defendant’s liability or the extent of damages, no case will make it past the summary judgment stage without some proof of the plaintiff’s injury.

After an injury, if the damages appear to be more than the small claims court limit (around $5,000, depending on the state), most plaintiffs will seek out an attorney. The typical plaintiff’s personal injury attorney will consult with the plaintiff for free. If, after the initial consultation, it appears that the plaintiff might have a case, the attorney may agree to conduct an exploratory investigation, including whether or not the defendant has applicable insurance and/or sufficient assets. If the consultation and investigation lead the attorney to conclude that the case is viable, he or she will enter into a fee agreement with the plaintiff and officially become the plaintiff’s attorney.

Some of the initial attorneys a plaintiff contacts may decline to accept the case or refer the plaintiff to another attorney. Regardless of whether the plaintiff hires an attorney, anything the plaintiff tells the attorney is strictly confidential and protected from disclosure in court by the attorney-client privilege.

A plaintiff may, of course, choose not to hire an attorney. Because of the complexity of litigation, this may not be a wise decision, particularly if the stakes are high and the defendant is likely to hire his or her own attorney. Considering most plaintiff-side personal injury attorneys work for a contingency fee (i.e. they only get paid if the plaintiff does), hiring an attorney is usually a good idea.

A Complaint is Filed and Served on the Defendant

After establishing that a legitimate case exists and that there are no procedural hurdles like an expired statute of limitations, the plaintiff’s attorney will file a personal injury complaint. The complaint is the first official document in the case, laying out in very broad detail what the plaintiff claims the defendant did.

After the complaint is filed, the plaintiff’s attorney will have a month or more to locate the defendant and “serve” the complaint on him or her. Serving the complaint basically means physically delivering the complaint to the defendant in a way that can be proved later, ensuring the defendant cannot later claim to not know about the lawsuit. Along with the complaint, the service papers will tell the defendant the next date he or she must appear in court.

The Defendant Hires an Attorney

The defendant will typically have a month or more to find an attorney before his or her first court date. If the defendant has assets or an applicable insurance policy, finding a personal injury defense attorney willing to take on the case should not prove difficult.

If insurance applies, and the defendant must notify the insurance company as soon as he or she knows about the lawsuit (which is a strict requirement in insurance policies). The insurance company will then supply and pay for its own lawyer if the defendant has not already hired one. Defense attorneys work for an hourly rate, not a contingency fee, so if the defendant can afford to pay out-of-pocket, a “losing” case headed for early settlement is not a deterrent to taking the case on.

Pre-Trial Litigation

In the pre-trial process, both sides will ask each other for evidence and witness information in a phase called “discovery.” At the early stages, both sides will also appear in court to inform the judge of how the case is proceeding, to agree or not agree to mediation or arbitration, and to set a trial date. As the discovery process proceeds, both sides will begin to schedule depositions of the opposing party and witnesses, i.e. examinations and cross-examinations under oath outside the courtroom.

This process of discovery and intermittent court appearances can take months and even years, with the trial date frequently being set back. Eventually, once the discovery process appears to have proceeded as far as it can, the defendant may ask the judge to throw out the case on “summary judgment” because the plaintiff cannot possibly win at trial (these motions lose more often than not).

As the case moves closer to trial, the parties will significantly ramp up effort as they engage in mandatory settlement conferences, make motions to determine what evidence will be allowed at trial, select a jury, etc.

Finally, the trial will begin and, for a typical personal injury case, last several days. At trial, the judge or jury will determine if the defendant is liable and, if so, how much the defendant is required to pay out in damages. After the trial, either party can initiate an appeals process that can last from several months to several years. After the appeals process has been exhausted, a losing defendant will be required to pay the damages established at trial or on appeal.

Settlement is Very Likely

Most cases settle before trial. At any point in the process described above, the parties can settle and end the case. In fact, the plaintiff can send the first settlement offer before the complaint is ever filed. What is more typical, particularly if the initial evidence establishing liability and/or damages is inconclusive, is that a settlement is reached after the discovery process has gone on for a while.

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Accident Claims Based on Negligent Road Construction

If your car accident was caused by negligent road construction, you may be able to hold the construction company or government liable for your damages.

Mistakes in road construction can lead to major injuries to motorists. Those injuries often lead to lawsuits against construction companies and can result in significant liability for injuries. In some cases, the government may be on the hook in an injury lawsuit. In the sections that follow, we will identify some common mistakes that lead to injuries and discuss what a lawsuit for injuries caused by mistakes in road construction might look like.

What Every Business Owner Needs To Know About Premises Liability

You probably already know that if a person slips and falls at your business, you’re a prime target for a lawsuit. At the very least, you’ve probably seen the personal injury lawyer advertisements on daytime television that promise to hold businesses accountable for their negligence and get injured parties the money they deserve.

As an attorney, I’m familiar with these slip-and-fall cases. While they’re certainly the best-known instances of premises liability, they’re hardly the only ones. As a business owner, your responsibility for others’ injuries is far-reaching, covering everyone from employees to visitors to your next-door neighbor.

I’ve come across too many people who know it’s important to keep their employees and customers safe but aren’t aware of the full extent of their culpability. A better understanding of premises liability can not only reveal ways to improve workplace safety, but it can also help you avoid becoming the next case study for a personal injury ad.

Premises Liability 101

Regardless of whether you rent or own the building your business is located in, you’re responsible for whoever steps inside — from employees and customers to vendors and solicitors. Even trespassers have limited protection under premises liability law.

While your landlord may be sued for negligence in some instances, you will almost always shoulder the primary burden. In fact, most landlords include clauses in rental agreements that require tenants to assume full responsibility when it comes to maintaining the safety of the property. That means that if your landlord is sued, your business is on the hook for the incurred expenses.

Slip-and-fall incidents are just the tip of the iceberg. Many different scenarios fall under the umbrella of premises liability, including a visitor or an employee assaulting another visitor, a piece of equipment or merchandise injuring someone, or hazardous substances running off your property and onto a neighboring property. Basically, if you could have taken steps to prevent an injury or damage from occurring, you’re going to be held accountable by an attorney like myself.

On top of that, if you decide to fight a premises liability suit, your business will be affected in more ways than one. While most commercial general liability insurance policies will cover many of the expenses of a premises liability lawsuit, lawyers’ fees alone can be exorbitantly expensive. And no insurance policy will be able to repair the damage to your business’s reputation.

How to Keep Everyone Safe (and Avoid Lawsuits)

Unfortunately, accidents will always happen, and lawsuits will always be filed. At a minimum, consider buying a basic commercial general liability insurance policy. For as little as $500, a standard policy will cover up to $1 million. In the long run, it could end up saving you tens of thousands of dollars.

After you get insurance, here are some best practices to prevent most workplace injuries and expensive liability claims:

Inspect. You and your employees need to diligently monitor potentially unsafe conditions — in both individual workspaces and the property at large. Constant vigilance might sound like a productivity killer, but all it really means is being more aware of your surroundings. This way, any potential liabilities can be detected before employees or customers discover them the hard way.
Correct. If an unsafe condition is discovered (or even suspected), it must be corrected immediately. Neither you nor your employees should assume that someone else will clean up the spill, flatten the entryway mat, or clear ice and snow off the walkway. Establish clear policies and procedures so your employees know what to do when it comes to dangerous conditions.
Warn. If any unsafe conditions can’t be corrected immediately, you need to display a conspicuous warning sign so customers and employees can avoid the hazard until it’s fixed. The prominent use of “wet floor” signs in areas that have been mopped during business hours is a good example of a prudent warning.

When it comes to premises liability, the bottom line is this: If it’s your business, it’s your responsibility. Stay alert for potential dangers, and correct problems as soon as they crop up. That will hopefully be enough to keep you out of court.

DISCLOSURE: This material is provided for general and educational purposes only and is not intended to provide legal advice or to avoid penalties that may be imposed by U.S. law. Contact your attorney or other advisor regarding your specific situation.