Many personal injury cases resolve without the need to file a lawsuit. In an ideal world, an injured person would simply submit a claim to the insurance company, and then negotiate a fair value to resolve the claim. Unfortunately, this is not always possible.
Often, insurance companies deny responsibility or make offers that are far less than what claims are worth. As a result, an injured person may need to file a lawsuit to obtain the compensation they deserve. But what does that process look like? And how long does it take?
This article provides a basic overview of:
- What happens when you file a lawsuit in Circuit Court;
- The events that take place afterward.
In Virginia, cases valued at less than $25,000 may be filed in General District Court. The process for those cases is very different than for cases filed in Circuit Court, which typically involve cases with an anticipated value higher than $25,000.
Cases in General District Court do not have a formal discovery process and are heard by a judge, not a jury. Personal injury claimants who are considering filing a lawsuit should discuss with a qualified personal injury attorney which court is right for their case.
How a lawsuit is filed
Filing suit is done by filing a document called a Complaint with the Court, which states how the incident occurred and sets forth the claims. This document is then served upon the defendant(s) to begin litigation.
The defendant’s liability insurance company will hire an attorney to respond to the Complaint with a document called an Answer. Sometimes, you might hear people discuss the “parties” to a lawsuit. The parties to the suit are the “plaintiff” and the “defendant.” The injured claimant is the plaintiff.The individuals or entities who are being sued are the defendants.
Filing a lawsuit does not guarantee that there will be a trial. The plaintiff always has the option of negotiating a reasonable settlement during the course of litigation. Often, the litigation process will position a case for a better settlement result without the need for trial.
Insurance companies may increase the offer to a reasonable amount any time prior to the trial date. However, it is best practice to prepare every case as if it is going to trial—so that you are ready to win a trial if settlement is not possible. Some cases simply require a trial to get the best possible result.
8 steps to litigation in Circuit Court:
Step 1) Suit filed
Complaint drafted and filed with the clerk of the appropriate Court. The Court creates a file, and a case number is assigned.
Step 2) Service on the defendant
The sheriff’s office or a private process server obtains the Complaint and service documents from the clerk’s office and serves them on the defendant(s)
Step 3) Defense files Answers
The defendant’s insurance company hires a lawyer (defense attorney) to defend the case. The defense attorney files an Answer in response to the allegations in the Complaint.
Step 4) “Interrogatories”
The plaintiff typically serves written questions and written requests upon the defendant(s). The written questions are called “interrogatories.”
These questions are designed to “discover” information about the defendant(s), how the defense contends the incident occurred, and any defenses they have asserted. This is called “discovery” or the “discovery process.”
Each defendant, with the assistance of the defense lawyer, must respond to the plaintiff’s questions and requests for documents. Likewise, the defense lawyer will send the plaintiff interrogatories and requests for documents seeking:
- Information about the incident;
- The plaintiff’s background, medical history, and work history;
- Other relevant aspects of the case.
The parties have a limited time period in which to respond to those questions.
A good personal injury attorney will help the plaintiff prepare responses to the questions so that they are accurate and complete. The plaintiff’s responses to these questions are given under oath by signing a notarized affidavit.
Step 5) Set case for trial
Most of the time, a trial date is set by agreement of the parties subject to the Court’s trial calendar and the availability of the attorneys and the parties.
Many court dockets are booked months in advance, so depending on the circumstances, the parties will often coordinate on a trial date before the discovery process is complete.
Step 6) Depositions
The parties in litigation have a right to take depositions. A deposition is essentially:
- An in-person interview;
- Conducted under oath;
- With a transcriptionist writing down everything that is said.
The primary purposes of a deposition are to:
- Learn what a particular party or witness knows about information relevant to the case;
- Find out what that party or witness is likely to say at trial.
The plaintiff (through his or her attorney) has an opportunity to depose the defendant about how the incident occurred. The defense attorney will have an opportunity to depose the plaintiff about the incident, their background, injuries, medical history, work history, and other topics related to the case.
Either party has a right to depose other witnesses as well. A good plaintiff’s attorney will meet with the plaintiff in the days before the deposition to prepare the plaintiff thoroughly for the defense attorney’s questions.
Step 7) Trial preparation
As the trial date approaches, a professional personal injury attorney will diligently work to gather and organize the evidence needed to be successful at trial.
If the insurance company continues to deny responsibility or refuses to extend reasonable offers, then a trial may be necessary.
Prior to trial, your attorney will meet with the plaintiff, the plaintiff’s family, friends, co-workers, the investigating officers, and other witnesses who may be needed to present the case effectively.
Step 8) Trial
If necessary, a plaintiff’s case will be tried in Circuit Court to a jury of seven people drawn from the community where the case is filed. At the conclusion of the trial, the jury will render a verdict.
If the jury finds in favor of the plaintiff, then it is supposed to award money damages that will “fully and fairly compensate” the plaintiff for their injuries and losses.
This is a 10,000-foot overview of the litigation process. In reality, there are far more steps to a lawsuit, many of which are handled behind the scenes by an attorney:
- Disputes about the timing and nature of the discovery process that must be ruled upon by the judge.
- Deadlines to disclose expert witnesses for cases that require experts.
- Occasionally, the plaintiff may have to attend an appointment with a hired expert of the defense attorney’s choosing for a medical examination.
- Parties will file pre-trial motions that could end a case before trial or dictate the evidence that will be heard at trial.
Each lawsuit is different and presents its own unique demands. A plaintiff contemplating litigation should consult with a qualified personal injury attorney about the options and the process.
The attorneys at Allen & Allen are familiar with the trial process, and the seasoned litigators are at ease n the courtroom. If you have been injured through no fault of your own, you may be entitled to compensation. Call Allen & Allen today for a free consultation, at 866-388-1307.