This is a general step-by-step guide to help you know what to expect when a lawsuit is necessary or advisable. You will want to keep this guide and refer to it periodically.
These are the typical steps in a typical bodily injury case. But every case is unique and has unique facts that may require some deviation from this general overview.
1. WE FILE YOUR LAWSUIT
If your case cannot be settled, or if it is advisable to file a lawsuit before attempting to settle, we will prepare a “Complaint” to file in court. This starts your lawsuit. The Complaint will state in general terms what happened, how you were injured, and the types of compensation you are owed.
2. SERVE THE LAWSUIT
After we file the Complaint, we must have it served on the defendant. This process gives the defendant notice of what the claims are against him or her and where and when the defendant must respond. The law has very specific ways in which the defendant must be served or notified. It is our responsibility to have the defendant served properly. We usually ask the sheriff or a court authorized process server to actually hand the summons and complaint copy to the named defendant and file a sworn affidavit this has been accomplished so there will be no room for debate.
3. THE DEFENDANT ANSWERS THE COMPLAINT
After the defendant is served with a copy of your Complaint, he or she usually has just thirty days to file a response. The response is called an “Answer” to the Complaint.
A fifteen day grace period is allowed after the first thirty days if certain conditions are met. Beyond that, the defendant is in “default” and all of your allegations are admitted as true. This happens very infrequently with injury cases. In very rare cases, a defendant who has been served and has not filed a written response after 45 days will have a good excuse and a judge will allow him or her to open the default. It also may be to your advantage to allow a defendant to open a default if it means liability insurance would pay a claim as opposed to not. If that happens, we will discuss the situation extensively. Again, it is rare and should not be our focus.
The Answer will generally respond to your general factual and legal allegations stated in your Compliant. Certain defenses must be raised in the Answer or will be waived. The Answer gives us some idea of any procedural problems that may exist in your case, and we will quickly correct any procedural problems or get more information. For instance, if a defendant moved and we were not aware of it, we may have filed the complaint in the wrong county. Most problems are readily remedied.
Most of the time, the Answer will just generally deny the defendant is responsible for your injuries or that you are entitled to all of the compensation we allege you are entitled to. Occasionally, a defendant will admit he or she is responsible but will still demand proof of the amount of compensation you are entitled to receive.
4. ASK/ANSWER WRITTEN QUESTIONS
Once the defendant files a written response to the lawsuit, a period of time begins where we are obtaining information from the defendant and they are obtaining information from us. This is the DISCOVERY PERIOD and usually lasts six months or longer.
The defendant will send written questions to us for you to answer. These are called
“Interrogatories.” We will also serve written questions on them to answer (and many times we already did so when we served the Complaint). Each side usually has 30 days to answer these questions. Sometimes extensions of time are given. We often need extensions to get all of the information requested, so we generally allow reasonable extensions as well.
We will send ‘Requests for Production of Documents” to the defense - and the documents requested must be provided to us unless an objection is made. The defense will send us requests also, and we have to provide them with the documents requested or object.
Any party can also send requests for documents to a non-party. Most times the defendants will send a request to your medical providers for a copy of your records.
Each side is entitled to depose, or ask questions orally, of the other side. The defendant usually deposes the plaintiff (you). Each party can also depose any fact witness. The questions are asked in front of a court reporter, under oath and under penalty of perjury. Your answers can be used against you later. The purpose is to cement the facts and details so there are no surprises at trial. Your attorney will be present with you for the deposition. As long as you are absolutely honest and answer the questions asked, you will make it through and it will not be difficult for you.
6. MEDICAL EXAMINATION
The defendant is entitled to ask to have you examined by a doctor of their choice. Although entitled to ask, it is pretty rare that a medical exam is requested. But I want you to be aware of the possibility. We will usually oppose a medical exam if requested and will ask the Court not allow it. If allowed, the examination is conducted and a report is prepared. We then determine if the exam was helpful or harmful and attempt to manage what evidence may be used or kept from the jury. Again, in our experience it is a very rare case where the defense requests a medical examination and the odds of it happening in your case are likely so very low it should not be our focus.
Many judges will now require the parties to all lawsuits to attempt to resolve the case with the help of a neutral or mediator. A mediator is an independent third party, who usually has experience in trial and is agreeable to all parties. The mediator will hear the evidence and arguments of the attorneys and will try to get the parties to negotiate toward a resolution before trial. In some cases, mediation is a good option even without being required.
8. EXPERT AND MEDICAL DISCOVERY
Each side may retain one or more experts. These are people who will help tell the jury what happened, including about your injuries. Each side discloses their experts and then the experts can be deposed, similar to your deposition.
This is also the time when your medical doctors may be deposed so their testimony can be used at trial instead of attending trial in person.
9. PRETRIAL CONFERENCE
Before the case is tried, most courts require a pretrial conference. We provide a summary of your case and contentions to the judge. The attorneys usually meet with the judge and discuss the case, scheduling, any anticipated problems, unique points of law, and details as to how the trial will proceed. This is also often another chance to discuss resolution of the case before trial.
If the case cannot be settled, a judge or jury will hear the case. Each side will have an opening statement, a chance to present evidence to the jury, a chance to cross-examine the opposing witnesses and present a closing argument. The jury will then decide the case and render a verdict.
At any time throughout these proceedings, your lawyers or the lawyers for the defendant may need to ask the Court for guidance, or to allow something or prevent something from happening. We make a request with a “motion.” Unless it is a dire emergency, the lawyers opposing a motion have thirty days or more to respond in writing. Sometimes a hearing is scheduled where the judge in your case will decide to grant or deny the motion, or will take the motion under advisement and let us know the outcome at a later date.
A “settlement” happens at any point during the course of the case where the parties can agree what will be paid and what will be accepted (and any other necessary details). If a settlement agreement is not reached at any point, the case proceeds to the next step. If a settlement is reached, the case usually stops at that point.
Grist Law Firm
915 Hill Park, Suite 102, Macon, Georgia 31201 TruckLawyer@gmail.com
Macon (478) 741-0024 Atlanta (678) 528 - 8426 Toll Free 1-877-257-1580 Toll Free Fax (866) 929-7419