When it comes to looking at personal injury litigation, the first and most important factor to note is that each situation has unique dynamics, which are rooted in the details of the incident itself, along with the actions or inactions of the litigants, witnesses, and investigators.
With this in mind, there are some fundamental steps that, at a high level, characterize the personal injury litigation process. According to Faruqi & Faruqi, a nationwide law firm that focuses on complex civil litigation in multiple practice areas, including personal injury, consumer class action, securities, merger and transactional, shareholder derivative, and wage and hour litigation, these steps include:
Consultation with a Personal Injury Attorney
The first and most important step in the process is to consult with an experienced personal injury attorney. During this consultation, your attorney will assess whether the negligence of any other party (or parties) contributed to your injury, obtain information regarding the extent and severity of your injury (which may include obtaining your medical records with your permission), evaluate your incurred and estimated medical costs, and explain your legal options.
Faruqi & Faruqi, says that individuals who do not seek the counsel and representation of an experienced personal injury attorney and decide to represent themselves often end up regretting the decision. In addition to making a variety of procedural errors such as missing deadlines and not understanding courtroom protocol, self-represented litigants are easy targets for shrewd and aggressive investigators and counsel on the other side.
Likewise, self-represented litigants often underestimate the value of their case before it is filed. Without a qualified investigation team, they do not know how to respond to low-ball settlement offers, and do not realize how long the process can take from start to finish. Most problematic of all, their emotional investment in the case diminishes their negotiating and decision-making abilities.
Investigation and Fact-Finding
Once you have hired an experienced personal injury attorney with whom you feel comfortable and confident, the next step in the litigation process is to thoroughly investigate your case. This will involve obtaining the police report (if applicable), soliciting depositions, and amassing all of the details regarding how you were injured, the extent of your injuries, your future prognosis, and your incurred and projected medical costs.
Faruqi & Faruqi notes that importance of the investigation and fact-finding phase of the litigation process cannot be underestimated. Ultimately, a case will be favorably settled out of court or won in court based on the strengths of its facts and verifiable assertions, not based on speculation or emotional appeals.
If there is no settlement offer during the investigation step, or if you do not accept an offer(s), you’re your attorney will submit a formal settlement demand letter that outlines your incurred and projected medical costs, current and projected lost wages, pain and suffering, loss of life’s enjoyment, and other factors on your behalf.
The other party — whether it is an individual, a corporation, a law firm, or an insurance company — will then either choose to accept or reject the demand. They may also choose to make a counteroffer. If so, then your attorney will evaluate it with you, and advise you on whether accepting it is in your best long-term interests. Be assured that you will be in charge of accepting or rejecting any offer.
According to Faruqi & Faruqi, the two most important factors in preparing a settlement demand letter are that it must be extremely robust and anchored by relevant facts and evidence — which includes photographic and video evidence of available — and that it must be crafted to a trial-ready standard. Even though the goal is to settle the matter out of court, the recipient of the letter must have no doubt that if a reasonable and fair settlement cannot be reached, then the matter will be litigated at trial and the outcome is likely to be less favorable than what has been proposed. Many individuals who represent themselves try and bluff their way with an over-the-top, unrealistic and amateur settlement demand letter. Unfortunately, this has the opposite effect. Instead of being intimidated, the other side easily detects the bluff and adjusts accordingly.
Filing a Lawsuit
If the settlement demand is rejected, or if a counteroffer is deemed unacceptable, then a lawsuit is filed and the matter heads to court. There are multiple pre-trial phases, including complaint and answer, discovery, and motions (which can be filed during the discovery phase).
This phase that shocks many self-represented litigants is motions, which is when the other side petitions the court to dismiss one or more claims. After months or years of expecting a large settlement, they are faced with the prospect of getting far less than they need, or sometimes nothing at all. On top of this, they must file a response to the court within a matter of weeks that defends their right to file one or more claims. This is where having an experienced attorney makes a life-changing difference. Often, the other side will not even risk filing a motion if a litigant is well-represented, because they know it will not succeed and will in fact weaken rather than strengthen their case.
Mediation is an attempt to bring about a mutually acceptable and legally appropriate out-of-court resolution. Unlike settlement discussions (which typically begin much earlier in the process), mediation involves a neutral third party — such as a retired judge — who facilitates communication and seeks to keep parties focused on core issues and proposes potential solutions.
Technically, mediation can be requested by either party at any step in the process. It is also important to note that while proposals made by a mediator are not-binding, the disclosure made during mediation can have a significant bearing on the outcome of a case. For example, an unprepared and inexperienced self-represented litigant may say something during a mediation session that they believe is irrelevant or innocuous yet provides the other side with an advantage.
If mediation does not lead to an agreeable resolution, then the matter is litigated in court. This is a lengthy process in which evidence and testimony is presented — typically to a jury — who then render a verdict.
Faruqi & Faruqi says that those who expect trials to be what they see on TV — with surprise witnesses and other drama — will be disappointed. It is extremely procedural, and there exists a myriad of rules that must be followed to avoid admonitions and sanctions from the bench or being eviscerated by the other side. Being represented by an attorney who is very experienced at trial is absolutely critical. Otherwise, the outcome can be truly disastrous.