This section is designed to provide clients with the answers to common questions about the timeline of a lawsuit and different stages of the typical personal injury lawsuit. Once a lawsuit is filed a typical accident case takes anywhere from 8-18 months to get to trial. However, most cases settle out of court and do not go to trial even if a lawsuit is filed, cases can settle at any time during the process. Complex products liability or medical malpractice cases take about twice as long as the average car accident case.
Below is a breakdown of the phases of the injury claim through setting the case for trial. This is a very general outline only.
In most cases we do not want to proceed with a lawsuit until we have attempted to settle the case. This saves the client money in extra expenses that go along with a lawsuit and many times the case settles more quickly if we attempt to settle before filing a lawsuit than if we file a lawsuit right away and get lawyers involved on the other side. In some case, such as drunken driving cases, we often file the lawsuit right away. These options can be discussed in detail with respect to your specific case.
The Pre-lawsuit settlement demand is sent to the insurance company and/or defendant once the injured client has reached Maximum Medical Improvement or ‘MMI’. This is the stage where the client and doctors agree that they are either 100% healed or have healed as much as possible for the foreseeable future. This is very important because once a case settles the case is closed. If injuries arise after settlement the case cannot be reopened.
Usually once the Pre-lawsuit demand is sent out we allow the insurance company 30 days to settle the case. If we cannot settle the case in those 30 days we generally recommend filing an injury lawsuit. Sometimes there are legitimate reasons to extend the demand deadline, any requests by the insurance company to extend that deadline will be discussed with the client and then a decision will be made based on the unique factors of each case.
Once we have decided to proceed with a lawsuit there are several deadlines and stages that a case goes through. At any time the case can settle, however, we prepare every case as if it will be presented to a jury.
Usually we can have a lawsuit filed within 1-3 days, depending on the case. If it is a medical malpractice case it usually takes a little longer as expert affidavits are required.
In all lawsuits the Defendant has to be put on notice of the lawsuit, the law requires that the defendant is served with a summons which puts them on notice of a lawsuit. After a lawsuit is filed the court clerk issues a summons to be served. Usually this take 1-2 weeks from the time the lawsuit is filed.
Once the summons is issued we forward that summons to a Private Process Server or the County Sheriff to serve the summons on the Defendant. The summons needs to be served on the defendant individually, or left with a relative over the age of 16 at their home. If the defendant is a corporation or business, we serve their registered agent that is on file with the secretary of state.
Once served the defendant has 30 days to file an Answer. Typically the Answer denies most if not all of the allegations in the lawsuit Petition, this is expected. Once the Answer is filed we move forward with “written discovery”.
Written Discovery consists of many written questions and requests for documents served on the other party. This written discovery is referred to as:
Interrogatories: Written questions as basic as name and other background information. Additionally, asks for witnesses, identification of certain documents, experts, medical providers, other lawsuits or claims, and several other areas of evidence.
Requests for Production: Are requests for specific documents to be produced, such as photos of the accident, insurance documents, medical records, investigation records, actual physical objects, or other document or things that the parties may feel necessary to investigate as part of the case.
Requests for Admissions: Are specific requests for one part to admit a certain fact in an attempt to narrow the issues that are disputed.
I addition to the above written discovery there are also record requests and subpoenas to 3rd parties that may be necessary to gather evidence.
The response time to specific interrogatories, requests for production, or requests for admissions is typically about 30 days. Subpoenas can require witnesses or documents to appear in as little as 7 days.
The written discovery phase is ongoing throughout most of the case, however, the initial round usually takes 30-90 days depending on objection filed and cooperation of the parties or extensions. Once the initial phase of written discovery is complete a case usually moves to Party depositions.
Anyone who is named int he lawsuit as a Plaintiff or Defendant is a “Party” to the lawsuit. The party depositions can be completed in as little as one day or may take place over several days that are scheduled weeks apart depending on the nature and complexity of the case.
At this point it may be necessary to get the deposition testimony of fact witnesses such as lay witnesses, police officers, or character witnesses. These witnesses can help assist with proving how the accident occurred or may testify to the nature and extent of the injuries to the injured Plaintiff.
Once party depositions are completed cases usually move to the depositions of experts or medical providers. The depositions of the medical providers are necessary for the injured Plaintiff to set up the evidence to be used at trial to prove the injuries and that they were caused by the claimed accident.
Additionally, there may be other experts involved int the case. In car accident cases there may be a defense doctor that the defendant will use to say the injured victim did not suffer the injuries they are claiming. There also could be accident reconstruction experts, bio-mechanical experts, engineering experts, or in medical cases there will undoubtedly be several medical doctor experts.
Usually party depositions and lay witness depositions can be completed within a few months of the first phase of written discovery being completed. Expert and medical depositions take a little longer due to scheduling issues and oftentimes many of the expert depositions are not needed until the case gets close to trial. Expert and medical depositions can get very expensive, therefore, we generally recommend holding off on these depositions in an effort to control case costs. This is a strategy that is discussed with the client and a final decision is then made.
Filing of a lawsuit puts your case in line behind other cases that were filed before yours. Court docketing varies by county, but typically, about 6 months after the lawsuit is filed the Judge will have a “Case Management Conference” where the lawyers will meet to discuss the details of the case with the Judge. At this time the Judge will set deadlines for certain stages of the case and set a Trial Date.