How does a personal injury case work?

By Steven A. Bredice, Esq., Board Certified Civil Trial Specialist

In some of my earlier posts, I discussed how to handle the initial stages of your personal injury or accident case, talked about some of the pitfalls to avoid, and how to choose a lawyer.  Now you may be wondering how does a personal injury case move forward?  What are the steps along the way toward getting a fair settlement value for my accident?  What if my injury case doesn’t settle out of court and I have to file a lawsuit?

Case Development

During the initial stages of your case, your lawyer will interview you, ask you to answer a background questionnaire, investigate the accident, gather facts about the Defendant, get information about your damages, and advise you on what to do and what not to do. He or she will also make contact with the Defendant’s insurance company.

The Claims Process

This begins the “claims process,” which is the process of providing documentation of liability and damages to the Defendant’s insurance company. The goal is to convince them that you have a good case for obtaining a recovery in court, and that they should settle in order to avoid the expense of hiring defense counsel and exposing themselves to the risks of a verdict that is more than their view of the case’s settlement value.

The claims process often ends with a settlement, a compromise based on both sides agreeing to a reasonable valuation of your harms, losses and damages.  This enables you to get a recovery without further involvement with the legal system.  It typically represents the most efficient and least demanding manner of resolving your case.

If your case settles, your lawyer will provide you with a written Settlement Statement, which sets out the amount recovered, the contingent fee, the expenses, the medical liens and then the net recovery to you.  By Vermont law, the Plaintiff must sign the settlement statement before any money is distributed to you or your attorney.

Litigation

If your case cannot be resolved in the claims process, then litigation, or a lawsuit, is the only way forward.

Summons and Complaint

A lawsuit begins with the filing of a Summons and Complaint, which are served on the Defendant.  The Summons tells them which court they are being sued in, and the Complaint tells them what it is they are being sued for.

Discovery

Next, a process called “discovery” begins.  Discovery is the exchange of information between the two opposing sides in the lawsuit.  Sometimes this happens through written questions, called Interrogatories, which are answered under oath. Other times the two parties will submit Requests for Admission, consisting of factual statements that the other party must either agree or disagree with.  Lastly, Requests for Production involve asking the other side for documents or things.

In addition to “written discovery,” the parties to a lawsuit can get information through the physical examination of people, places or things.

Deposition

A deposition involves a question-and-answer session between lawyers and the parties and witnesses involved in the case.  These question-and-answer sessions are conducted under oath and are recorded by court reporters who take down every word spoken during the deposition and reduce it to a printed transcript.

As the Plaintiff in the case, you will have to give a deposition.  This involves answering questions from the Defendant’s attorney with your own lawyer there beside you to make objections and protect you throughout the process. Your attorney will also take their own depositions of the Defendant and any witnesses.

Both sides will depose the various “fact witnesses” together, and each side will also depose the other side’s “expert witnesses.”  Fact witnesses are people who testify about what they have seen, heard or have learned about various issues in the case. Expert witnesses offer scientific, technical or other specialized knowledge and opinions based on their training, education or background. These include doctors, accident reconstructionists and economists, for example.

The purpose of all these methods of discovery is to prevent surprises and develop a common understanding of the facts that define the issues in the case. This is important not only when a case goes to trial but also for mediation.

Mediation

Mediation is mandatory in Vermont. It entails a meeting between both parties and their lawyers under the supervision of a trained mediator.

These mediators are almost always senior trial lawyers with experience on both sides of the bar, or retired judges. Their judgment is required because the legal, factual, technical and emotional issues that come into play during a mediation demand skill and experience.  The mediator must have deep first-hand experience in the litigation process, from discovery all the way through trial and appeal, in order to really grasp the issues and their significance, and to articulate each side’s position and the risks and benefits involved.

Mediations begin with the parties and the mediator in the same room.  The parties then go to separate quarters and the mediator goes back and forth between them in a process of shuttle diplomacy.  Hopefully, the mediator presents reasons to each side why they should come toward the middle.  If the mediator is able to get the two sides to meet, the case settles.  If not, the case proceeds toward trial, but the parties are usually closer to each other than they were before the mediation began.

Mediation is confidential. No one may communicate to outside parties what was said during the proceedings.  This policy is designed to encourage frank discussion of the parties’ positions and the risks of trial facing each side.  However, it is acceptable to use information obtained in mediation to track down new leads in the case and develop additional evidence for trial.

Mediation is where most cases are resolved.

Trial

If your personal injury case does not settle at mediation, it is set on the trial calendar.  The first step is a pre-trial conference, in which the Court meets with the lawyers and discusses the timetable for trying the case.  In this conference, the arrangements for the jury draw also begin.

The jury draw involves something called a voir dire, which means “to see, to say” in French.  In voir dire, prospective jurors, usually drawn at random from the local voter checklist, are summoned to the Court and required to make themselves available for questioning by the lawyers.  The lawyers’ questions are designed to identify biased or prejudiced jurors that likely will not render a fair verdict based only on the evidence admitted at trial.

Political beliefs, moral issues, personal knowledge of the parties or their lawyers, philosophical convictions and strongly held opinions are among the many reasons a juror may be excused from service “for cause” after being questioned on these topics by the lawyers, and sometimes the judge.  Each side is also permitted to strike a certain number of jurors based on any reason of their choosing.  These are called “preemptory strikes.”

Careful and skilled lawyering is needed to explore the hearts and minds of prospective jurors, developing a feeling of which ones would be naturally sympathetic and which ones would be inherently skeptical of a given side in a case.  Trials are often won or lost at the jury draw.

The trial of a personal injury case begins with instructions from the Court about the jury’s role in the process.  Then come the opening statements of the lawyers for each side.  Opening statements are often like a road map of the case, a preview of what each side expects the evidence will show.  Argument is not allowed at this stage of the proceedings because arguments may only be based on facts, and no facts have yet been admitted into evidence.

At the conclusion of the opening statements, proceedings begin for the presentation of evidence.  Evidence comes in the form of witnesses, documents, recordings, images and tangible things.

The Plaintiff goes first because the Plaintiff has the burden of going forward.  When the Plaintiff’s lawyer finishes with a witness, the Defendant’s lawyer is entitled to cross-examine that witness.  The Plaintiff’s lawyer may then re-direct, followed by a re-cross, until the two sides run out of issues or the judge gets annoyed and puts a stop to this legal tennis match.

When all of the Plaintiff’s evidence is in, the Plaintiff rests.  Then the Defendant has a turn to bring on witnesses, whom the Plaintiff’s lawyer will cross-examine, followed by the same process of re-direct and re-cross.  At the end of its case the Defense rests as well.

Once all of the evidence is finished, the two sides have the opportunity to make motions for directed verdicts, meaning that the admissible evidence is so clear under a certain standard that the Court should decide the case, or an issue in the case, on its own.  The case goes to the jury if the judge rejects the motion for a directed verdict.

Before submitting your accident case to the jury the judge will instruct them in the law, based on proposed jury instructions submitted by the lawyers for the two sides as well as the judge’s own preferences.

The jury is then sent behind closed doors to deliberate.  The parties await their verdict until they are called back into the court, where all of the participants—Plaintiff, Defendant, their lawyers, the judge and the jury—are assembled for its announcement.

After the trial, either side can petition the judge for a new trial, or an order vacating the result and dismissing the case, based on some problem with the proceedings or the claims themselves.  If this motion succeeds, there is usually either a new trial or an appeal by the side that lost the motion.

If the motion to vacate the result is denied, the losing party may appeal the case to the Vermont Supreme Court.  On appeal, the Supreme Court may uphold the lower court or reverse it.  Sometimes the result of an appeal is an order for a new trial.

Once the case is finally over, a process that can take from 2 ½ to over 10 years, a victorious Plaintiff is awarded the verdict plus interest and their costs, not including attorney’s fees, at trial and on appeal.  If the Plaintiff loses, the Plaintiff must pay the Defendant’s costs, again usually excluding attorney’s fees.

This brief description of the litigation process should illustrate the reasons both sides have for being open-minded about settlement and receptive to compromise in favor of a reasonable and amicable resolution.

It should also underscore the importance of retaining experienced, trial-hardened counsel, not only for purposes of increasing your odds of success in court, but also for purposes of avoiding it in the first place by showing the insurance company you are prepared to go the distance and are likely to prevail in court.

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