Injury Case Roadmap: The Legal Process For Personal Injury Cases

Often times trying to negotiate a reasonable settlement
with the insurance company is a waste of time. More and
more insurance companies are taking a very aggressive
stance in settling accident claims. Certain carriers have a
reputation for making unreasonably low settlement offers,
even if the injuries are severe. Often times the insurance
companies use pre-lawsuit negotiations to find out as much
as possible about you, your lawyer and your doctors. This
can result in the unfair advantage to the insurance company
not to mention a complete waste of time and effort for you.
For these reasons, it may be advantageous to file a lawsuit
immediately and then continue negotiating the claim if
possible. Once a lawsuit is filed, the court will set
certain deadlines including a trial date. These deadlines,
and in particular a trial date, can help motivate the
insurance company to make reasonable and diligent attempts
to settle the case.

To start a lawsuit, papers must be filed in court and a
filing fee paid. These papers are called a "summons" and
"complaint." When a person files a lawsuit he or she is
called the "plaintiff." The person or corporation that is
being sued is called the "defendant." The plaintiff must
personally serve a copy of the summons and complaint on the
defendant. You only have a certain amount of time to settle
your case or file a lawsuit and then personally serve the
defendant. In Washington, this time is usually three years
from the date of the accident.4 This deadline is called the
"statute of limitations." It is a dangerous practice to
wait to settle your claim right before the statute of
limitations period expires. If you have to file suit right
before the deadline and you cannot find the defendant or if
you serve the wrong defendant, your case could be dismissed
and you get nothing. For this reason, you should not wait
to hire an attorney right before the statute of limitations
is about to expire. Many attorneys, including myself,
refuse to accept a case where there may be insufficient
time to investigate the case, file suit and locate and
personally serve the defendant.

After the lawsuit is filed and the defendant is served,
both sides participate in a process of asking for and
exchanging information about the case. This process is
called "discovery." Each side is allowed to investigate
what evidence and witnesses may be used at trial. The
discovery process may entail sending or answering written
questions (called interrogatories) and requests for
documents and other tangible materials that are relevant to
the case. The defendant's attorney will also be allowed to
access your medical records and work history, including
your financial records.

The discovery process may also include depositions. A
deposition is a face-to-face meeting where the attorneys
are allowed to ask a witness questions under oath while a
court reporter transcribes the session. Any witness that
may offer testimony at trial can be deposed, including you,
your doctors, and your friends and family. If your
deposition is requested, it is very important that you
prepare for this with your attorney. Your conduct at the
deposition can influence the value assigned to the case and
also affect the likelihood of whether the case will settle
before trial.

When a lawsuit involves a claim for personal injuries, the
other side may be permitted to have their own doctor
examine you. Therefore, the discovery phase may also
include a request by the other side that you submit to a
medical examination and/or psychological evaluation.

There are specific criteria to be satisfied before an
involuntary medical examination of the plaintiff is
allowed. In my office, we have a fairly specific
stipulation that must be signed by the other side which
imposes several conditions and restrictions on how the
examination may proceed.

Depending on which county your lawsuit is filed in and the
complexity of the case, the discovery phase can take many
months or sometimes years. When discovery is completed, and
each side knows what evidence will be offered at trial,
this is the time when the parties may conduct settlement
discussions. Sometimes the parties will engage in
alternative ways to resolve the case, like mediation. In
mediation, the parties agree to hire a retired judge or an
experienced attorney who will assist the parties in
reaching a settlement. Mediation is voluntary and
nonbinding (unless a settlement is reached). A mediation
session is also confidential so anything that is said
during the session cannot be used at trial. Many times
mediation can be used to successfully resolve a case.
Mediation sessions can occur in one day or last several
days depending on the size and/or complexity of the case.

If you fail to settle the case after discovery has ended,
the case will then proceed to trial. Each side has the
option of trying the case before a judge or jury. If a jury
is requested by one side, a jury demand must be filed in
court and a fee must be paid. The court rules usually
require that certain documents must be filed and exchanged
within 30 to 60 days before the trial date. These documents
may include witness and exhibit lists, motions, trial
memorandums, and jury instructions.


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Mr. Davis is the founder and CEO of the Davis Law Group.
He brings over 15 years of practical yet innovative
experience to personal injury cases. He practices law in
Seattle, WA. http://www.InjuryTrialLawyer.com . Mr. Davis
is the author of "The Ten Biggest Mistakes That Can Wreck
Your Washington Accident Case" complimentary copies are
available at http://www.washingtonaccidentbook.com