The entire process for a personal injury claim can be long, confusing, and emotionally draining.
Having an experienced personal injury attorney on your side, managing your claim on your behalf is essential.
At VanDerGinst Law, we will work to maximize the compensation for your personal injury and minimize your aggravation with, and confusion about, the process.
Each type of personal injury claim can take a different, and sometimes unexpected path.
Most personal injury claims will be negotiated and settled in your favor without filing your case in court and certainly before trial if possible.
But sometimes an agreement can’t be reached, or medical care and recovery takes longer than hoped, and the only way to get compensation for your injury is to file a lawsuit.
Therefore, it is essential to have experienced personal injury attorneys, like VanDerGinst Law, on your side.
Exploring Personal Injury Claims
In a related article, “Personal Injury Claim – Negotiations & Settlement Process,” we outlined the steps for negotiating and settling a personal injury claim prior to proceeding to trial.
Below we have outlined the steps if negotiations fail or the circumstances of your case require filing suit and we have provided explanations of each step for clarity and understanding.
It’s important to note that at any time during steps 1-6, negotiations or mediation can take place and a claim can be settled.
If a settlement is reached, then funds will be dispersed, see step 8 below.
Please refer to steps 1-5 of “Personal Injury Claim – Negotiations & Settlement Process,” for the full list of steps that typically take place prior to a lawsuit being filed.
The Steps of a Personal Injury Claim
1) Lawsuit is Filed
VanDerGinst Law will prepare a Petition or Complaint (depending on where the case is filed), and other necessary legal documents called “pleadings” which are then filed in the appropriate division of the appropriate court.
2) Defendant(s) Served
Once the lawsuit is filed, arrangements are made to serve the other side, now called the Defendant (or sometimes Respondent), with copies of the documents and a Summons that tells them about the filing.
The Defendant is then given a short time frame to file an Answer or other court pleadings in response to the lawsuit.
3) Defendant(s) Respond
The Defendant, usually through his or her attorney, files an Answer or some type of Motion stating their position and/or legal or factual arguments with reference to the lawsuit.
The initial response of the Defendant sets the tone for the nature of the following steps. If a simple Answer to the lawsuit is filed, the case can proceed to the Discovery phase of litigation.
If a Motion is filed, there may be a need to respond to the Motion and schedule one or several hearings, so a judge can decide how those arguments should be resolved. Sometimes a Judge may find a defect with a lawsuit and dismiss it at this stage. But if the lawsuit survives the Motion(s) it would eventually proceed to the Discovery phase of the litigation.
At some point following the above steps, the sides will begin the Discovery phase of litigation. Discovery is the period of litigation which allows the litigants to “Discover” the evidence and arguments of their opponents. This is done in an orderly fashion and can involve several different ways of gathering information.
All these ways are governed by local rules of procedure and evidence. The Discovery process can take several months or as long as a few years, depending on the complexity of the case, attorney schedules, and the court docket. There are many other things that can occur during this time period in preparation for trial.
Every case is different. Every court is different. Each case proceeds at a pace dictated by many factors. Below are some of the most common methods of discovering information:
Interrogatories are sets of written questions which are sent between the parties. Unless they are objected to, and the objection sustained by the court, the interrogatories must be fully answered and separately answered, under oath. They are answered under oath. They are typically limited to a specific number of questions unless a judge allows for exceptions.
Questions to you may include inquiries about how the accident occurred, your prior medical history, your medical treatment related to injuries sustained in the accident, the impact of the injuries on your life, your lost wages, etc. Questions sent by VanDerGinst Law to the other side may include a request that the Defendant explains their position with respect to how the accident occurred, etc.
B. Request to Produce
In addition to Interrogatories, both sides typically exchange a discovery document called a Request to Produce or Request for Production. This compels the opponent to produce various documents and other types of evidence relevant to the litigation. Typically, the Plaintiff would be required to produce medical bills and records. The Defendant may be required to provide insurance documentation. Both sides may be required to share photographs, videos, witness statements and other essential pieces of evidence.
Part of the Discovery process may also involve requesting information from sources who are not parties to the litigation. This can be done by issuing subpoenas, which may require those parties to provide various types of information. Sometimes that information is provided as testimony from a person (at trial or via deposition) and sometimes it is provided as documents or other types of evidence.
Once the written discovery is complete, or at least usually well underway, both sides may schedule depositions. Depositions are opportunities for the attorneys representing each party to ask questions of various witnesses while they are under oath. Depositions often take place in the offices of the attorneys; however, they can take place just about anywhere the parties agree.
Often, accommodations can be made so that the deponent (the person who is being deposed) doesn’t even have to be in the same location.
They may be done via telephone and/or live video feeds. Depositions are usually recorded by a court reporter who takes down all the testimony in order to make a transcript of everything that is said. Sometimes, in addition to the court reporter a videographer will record the deposition as well.
Depositions can be taken of all the parties to the litigation, as well as various types of witnesses. Witnesses may include doctors and other medical providers for the injured party, eyewitnesses to the accident, employers to discuss lost wage issues, and experts who have been hired to discuss various issues of liability or damages.
E. Requests to Admit
Requests to Admit, sometimes also known as Requests for Admissions or Stipulations, can be used in the Discovery phase of the litigation. This is a method of getting an opposing party to agree to certain statements as being factual so that the time, effort and expense associated with otherwise proving those points becomes unnecessary.
For instance, VanDerGinst Law often requests that the Defendant agrees to the authenticity of medical records, bills, and other documents so that witnesses need not be called to do so.
5) Pre-Trial Motions & Hearings
During the Discovery phase and shortly thereafter, either side may use pleadings called motions and court hearings to clarify issues, get more information and evidence, and to try to resolve all or part of the case before it goes to trial.
In some instances, the parties may agree, or the Court may order, for mediation to be attempted. Mediation is a proceeding outside of the court that allows you and Defendant, with the attorneys present, to meet with a neutral third party (who is often a retired judge or experienced attorney) to each present your case and have the mediator attempt to work with each side to reach a settlement.
No one is obligated to settle, but in a successful mediation, each side comes to an acceptable agreement that provides you with compensation and avoids the risk of having a trial (which may or may not end the way you want) and avoids the additional costs of pursuing to trial. It is often a good way to resolve a case.
Trials typically occur 1 to 3 years after the filing of a lawsuit. If it is a small claims case it can occur much sooner. If it is filed in a jurisdiction with a busy trial docket it can occur a bit later. Trials can take anywhere from a few hours (for a small case in front of a judge and no jury) to several weeks.
The length of a trial depends on the court, the judge, the nature and circumstances of the case, and the amount and type of evidence to be presented.
Cases can either be tried in front of a jury or in front of a judge alone (called a bench trial). In jury trials, the jurors decide how to interpret the facts. The judge is still there to interpret the legal issues and instruct the jury.
At the close of a trial, and after the judge or jury has had time to consider all the law and evidence, a jury will render a “verdict” or a judge will give a “judgment.”
This is the final decision of this court as to whether you are entitled to any compensation and if so, how much you are entitled to receive. It is possible to go through all this work and time and have a judge or jury disagree with you and give you nothing.
VanDerGinst Law will discuss all of your options as your claim progresses, help you decide if a settlement or a trial is appropriate for you, and keep you advised of all risks you face in presenting your case before a judge or jury.
8) Funds Dispersed
If a verdict or judgment is entered in your favor, your attorney will advise you on the steps for collecting and distributing the funds. Before any payment of funds, post-trial motions and appeals can still take place. The defendant might seek to set aside the judgment or to reduce the amount of damages.
The defendant can also pursue an appeal to argue legal errors were made during the trial. Your attorney will be there to assist you if this happens.
When a verdict or judgment is paid, it will be given to you after an accounting by VanDerGinst Law.
The accounting will show the required deductions from the total settlement funds which may include remaining medical expenses, other bills, legal costs, court costs, witness and expert fees, and, it is at this time that you will pay VanDerGinst Law for our help.
The balance, after the accounting, is turned over to you and is the amount “in your pocket.”
Contact VanDerGinst Law
VanDerGinst Law would be honored to help you with a personal injury claim.
The consultation is free and there is never a fee unless we win.
If you suffered an injury in Iowa or Illinois, contact VanDerGinst Law, P.C. at 800-960-8529.