- Filing of Lawsuits
- Motions/ Hearings
- Retaining Expert Witnesses
- Retaining Independent Medical Examination
- Mandatory Settlement Conference
- Collection On Judgment
Your lawyer will take the necessary information from you to evaluate who is at fault for your injuries and damages.
Your lawyer will collect documents and evidence for use in trial. For example, your personal injury attorney will collect evidence for use in trial or in settlement negotiations with insurance companies such as:
- Medical and rehab records
- Witness statements and observations
- Police reports and workplace incident reports
- Reports by forensic experts, such as accident reconstructionists
Prior to filing of a lawsuit, your lawyer may choose to commence negotiating with the opposing party to try to resolve the issues prior to filing of a complaint.
In certain cases the law requires the party to give notice of their intent to file a lawsuit. For medical malpractice cases this is a requirement.
Filing of lawsuit
Your lawyer will prepare the complaint to be filed with the court. Upon filing of the complaint a summons is issued and the complaint and the summons must be served on all defendants. Your lawyer will determine which court to file the complaint in.
This is the opposing party’s opportunity to “discover” everything about you and the incident or accident. You’ll get lots of written questions to answer under oath. You’ll have to produce documents and medical records, plus admit or deny specific written statements put to you.
You and your lawyer will need to gather up all the documents, for example, contracts, agreements, medical records, bills and other documentation of your injuries or damages. Some of these must be obtained in a specific way to make them admissible at trial. This often takes time and money.
You’ll be asked questions under oath, with a court reporter typing up every word you say. The insurance company’s lawyer will ask you in great detail about your injuries, your medical history, the accident itself and your treatment. You’ll likely to be subjected to grilling over the smallest of details.
During the deposition, the deponent will be asked questions under oath, with a court reporter typing up every word being said by the deponent and all other parties present during the deposition. Giving your deposition is on the one hand a most crucial part of the case and on the other hand, one of the most terrifying parts of a lawsuit for most people. The opposing lawyer will ask the deponent in great detail about the incident which gave rise to the lawsuit. For example in an automobile accident, the deponent will be asked about his or her injuries, medical history, the accident itself and treatments received. The deponent will likely be subjected to grilling over the smallest of details.
Follow these general rules during a deposition. Like always, remember to talk to your attorney for specific guidelines you should follow in your deposition.
1. Dress for your deposition the same way you’d dress for trial. The person asking the questions is sizing you up, trying to figure out how presentable you’ll be to a judge or jury. Many times this will be your first impression.
2. If you need a break, ask for one. You are allowed to take a break from questioning when you need one. You should discuss the rules on this with your lawyer before the deposition begins. The deposition room is not a jail cell.
3. Take your time. Think about the question you are asked before answering it. Pause before answering. This is not a timed event. This also gives your attorney ample time to place an objection if it is necessary.
4. Don’t volunteer any information. The person asking the questions is not your friend and you don’t need to help him or her discover other areas to ask you questions about. Say as little as possible. Answer only the question asked and nothing more. Do not be untruthful, but do not add anything extra.
5. Tell the truth. Assume the person asking the question already knows the answer. Depositions are not just to discover information, but to lock in testimony or find ways to discredit you at trial. Any inconsistency may be to your disadvantage later when you are in front of a jury.
6. Give short answers. Your best possible answers are short ones, such as “Yes,” “No,” “I don’t know,” “I don’t remember” and “I don’t understand your question.” It’s best to limit your answers to the information that is specifically requested. Don’t volunteer extra information. Don’t volunteer where the person asking the questions can find information. If you don’t know the answer to a question, say so. If you’re asked where to find the answer, then go ahead and answer truthfully.
7. Don’t argue. Don’t argue with the person asking the questions. Your lawyer will be in the room with you and can make any proper legal objections to the questions.
8. Be careful about what you say. Be very careful about what you say to or discuss with the other lawyer or insurance adjuster (if they’re present) during any breaks or before or after the deposition. Anything you say may be asked about later when you are back on the record.
9. Answer carefully. If you’re asked a question that calls for you to list things or give a detailed explanation, answer fully. In a personal injury case, you may be asked to describe all your injuries or to list all the activities you can no longer perform after the accident. You should list everything fully, and end your response with something like “and that is all I can think of at this time” or “and that is all I remember at the moment.” Otherwise, when you add something later at trial, you might look deceptive or worse.
10. Be prepared to give details. You may be asked about minor details. For example, be prepared to describe your injuries and pain. What kind of pain do you have? Is it constant, sharp, dull and constant? Does it ever go away? Where does it hurt? On a scale of 1 to 10, how would you rate your pain?
11. Be wary of the question “Are you feeling better today?” If you answer, “No,” it raises the question as to whether all that medical treatment you received was reasonable or necessary. If you answer “Yes,” then perhaps your case is only a mild injury and isn’t worth a lot of money. Obviously, you are feeling better today (at the deposition) than at the time you were in the emergency room. You should say so. But if you’re still hurting, you need to make that clear, too.
12. Be careful answering questions about times or distances. If you know the exact time or distance something occurred, say so, but be prepared to say how you know the exact time or distance. In all other cases, use the words “approximately” or “about.” Otherwise, you may look deceptive later if it turns out that some other witness or document shows a different time or distance.
13. Don’t guess. If you don’t know the answer, say so. Don’t be ashamed to admit lack of specific knowledge. If you’re asked to guess, and your lawyer lets you answer, be sure to state that you’re guessing or that the answer is approximate.
14. If you need to speak with your attorney ask for a short break. Don’t be shy to say you need to speak with your attorney. If is perfectly acceptable to ask for a break to talk in private with your lawyer.
15. If your lawyer states an objection -- don’t respond to the question. If your counsel has placed an objection on the record, do not respond to the question unless your attorney tells you to do so.
16. If you are using an interpreter, don’t answer in English. Many times people speak some English but prefer an interpreter during their deposition. Listen to the interpreter so you don’t get confused.
17. Only one person can speak at a time. Remember the court reporter will be taking down everything said, in order to have a clear record only one person should speak at a time.
18. Don’t use gestures. The court reporter is taking down everything being said and he or she will not record head nods or hand gestures. For example if asked “where does it hurt” you should respond “my lower back” if you only point to your lower back the court reporter will not be able to record it properly.
19. The person asking the questions is not your friend. Always remember that the person asking the questions isn’t your friend, but may have a strong influence on whether the opposing party settles your case or pushes you to trial. So be polite.
20. Prepare for your deposition. Prior to your deposition, make an appointment with your lawyer and review the deposition process and details of your case with your attorney.
The opposing lawyers may have what feels like an endless capacity to file motions and go to hearings on motions. Some of these motions are unimportant to you, but some may be critical to your case.
Retaining Expert Witnesses
Your attorney may have to retain an expert witness prior to trial. The expert witness will be able to give his or her expert opinion to the court or the jury. Prior to giving an expert opinion, opposing party may choose to depose your expert witness.
Independent Medical Examination
The opposing party may send you for an IME where you will be evaluated by their doctor of choice. You will be entitled to receive a copy of the Independent Medical Examination.
Many courts are forcing lawyers to mediate or arbitrate cases prior to trial. Some courts won’t even give you a trial date until you do so. Mediation is typically a settlement conference without the formalities of court. A neutral party will try to help the parties reach a middle ground. It’s not usually “binding” — meaning the parties are stuck with the result — unless the parties reach an agreement and write up a settlement agreement.
Litigation can eat up a lot of time and money. Settlements after litigation can be very disappointing after spending years in battle. Sometimes it’s better to settle before trial for less than to go through the process and end up with a small settlement or perhaps a bad result at trial.
Arbitration is a different breed than mediation. It’s often a binding “mini-trial” of the case in front of an arbitrator or panel of judges who listen to an informal presentation of the matters involved in your case.
Mandatory Settlement Conference
The mandatory settlement conference is usually heard in the court before the judge who is assigned the case or another judge in the courthouse. The judge presiding over the MSC will do its best to bring the parties to a settlement. Upon reaching a settlement, the parties will go on record.
If your case doesn’t settle, it must go to trial, where six or twelve strangers will decide what your injury is worth.
Trials are scheduled on the court’s schedule, not the lawyers’ schedule. Cases sometimes take years to be scheduled for trial, especially in some major urban areas. Having a case that is two or three years old before going to trial isn’t unusual. However, majority of cases go to trial after one year.
And once you have a trial, your case may not be over. There may be an appeal and further motions and hearings.
Collection On Judgment
You may also have difficulty collecting from the insurance company or the person responsible for your injury. The insurance lawyer will have to have a check or draft issued by the company. And before they send you money, you’ll be required to sign a release document and file some sort of dismissal motion. These things also delay payment. Once the money comes in, your lawyer will have to run the check through his or her trust account. If it’s an out-of-state check, there will be another delay of a week to ten days before the funds are disbursed. And your lawyer will be deducting litigation expenses such as deposition fees, transcript fees, filing fees, service of process costs, medical records costs, costs involved in documenting medical bills, costs of hiring expert witnesses, costs of paying treating doctors to testify, subpoena charges, lawyer’s fees, and any legally-required medical bills or liens.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.