Process of a civil lawsuit
There are various phases that take place when formally pursuing a civil personal injury case. However, it is important to remember that at any time during the litigation process, a plaintiff may decide to drop his or her lawsuit or settle with the defendant outside of court. In some instances, a plaintiff may not even need to initiate a lawsuit to recover damages. Sometimes, a simple letter from a law office can catalyze the desired exchange, therefore settling the claim. However, a civil personal injury case generally progresses in the following manner:
- Case Resolution
- Alternate Dispute Resolution (Arbitration, Mediation)
- Pretrial procedures
- Post-Trial Procedures
Once you’ve become injured or harmed in any way, you may seek out legal representation by the attorney to recover the financial compensation you believe you are owed. Your attorney will have you sign a client retainer; a written agreement that authorizes your attorney to act on your behalf. Once this agreement has been signed, your attorney will conduct an interview to evaluate the facts centering the accident to discover an appropriate plan of action. During this interview, it is imperative that you are as honest and explain what happened to the best of your ability.
Once your attorney has gathered all of the facts, he or she will draft up a formal complaint based on the information provided. The exact steps for filing the complaint vary by state/jurisdiction, as do the rules for the service of process.
Once the complaint has been filed and served, the defendant’s response (answer) must also be filed with the courts and served to the opposing party. The answer must either a) admit fault or b) deny fault. If the fault is denied, they must explain their reasoning for denial. This response also provides the opportunity for the defendant to file a counter-claim against the plaintiff.
Discovery is the exchange of information and narrowing of the issues in dispute of a case. It can be a simple process or a long, drawn-out process. The nature of discovery depends largely on the type of claim involved. If the case is clear-cut and there are witness statements and supporting photographic evidence, it is likely that not much discovery will be required. However, if the case is complex the discovery of information can last for years.
Not all lawsuits advance to trial. In fact, the majority of cases are informally settled via Alternate Dispute Resolution (ADR) methods by the parties outside of court. A small percentage of cases are actually tried by a judge and jury. Examples of ADR include:
- Arbitration: Arbitration is a resolution of a dispute by a person other than a judge. The person heading an arbitration is referred to as an “arbitrator.” The arbitrators’ decision is binding and not a matter of public record. In some cases, parties will agree through a written contract that, in the event of a potential dispute, they will resort to arbitration. This decision is typically made when the parties want to avoid a lengthy and expensive trial. Some companies routinely include an arbitration clause in their contracts. Arbitration is frequently used in labor and workforce disputes.
Resource: What Is Arbitration?
- Mediation: In mediation, the parties use outside help in settling a dispute. Mediation differs from arbitration in that the mediator can persuade the parties to reach a settlement. The mediator does not dictate the actual decision. Through a mediator’s intervention and assistance, the parties involved can reach a mutually agreeable resolution. Mediation is less formal than arbitration, but like arbitration, mediation is not a matter of public record.
Resource: What Is Mediation?
In the event a case cannot be settled via Alternate Dispute Resolution, the case will escalate to pre-trial procedures.
Depending on the type of case and your jurisdiction, various pretrial procedures may be scheduled. Typically, there is a pretrial conference where the judge who presides over the case will encourage a settlement. If a settlement is not reached, an official court date will be set and the parties involved must commence preparation for a trial.
Few personal injury cases actually escalate to trial. The majority are settled at some point during the litigation proceedings. Because of the time and cost associated with the trial, other methods have been sought out to streamline or avoid trial altogether.
Post-trial procedures are those that occur after trial, like an appeal or the process of collecting an award following the final judgment.
A personal injury lawsuit typically proceeds in the following order: complaint, answer, discovery, pretrial procedures, trial, and post-trial procedures. Parties often look for alternative means to resolve a dispute. These alternatives to trial are referred to as alternate dispute resolution. A few of the means for resolving a case without trial include arbitration and mediation.