Personal Injury Lawsuit Steps
The Personal Injury Litigation Process in Texas
What to Expect if You Bring a Personal Injury or Wrongful Death Lawsuit
Personal injury claimants have usually never been involved in the court system before. Because of this, many are intimidated or nervous about filing a lawsuit for personal injuries or for the wrongful death of a loved one. The person who files the lawsuit is called the “plaintiff.” The party against whom a lawsuit is filed is known as the “defendant.”
Filing of the Lawsuit
Generally, when a personal injury lawsuit is filed, a defendant is not required to take any action unless properly served with a citation. Once the defendant has been served with the lawsuit, they will have approximately 3 weeks to file an answer to the case. Invariably, the answer filed by the insurance company lawyer is a “general denial.” This is just a standard legal answer and does not mean that the defendant is claiming that your allegations are false. It does mean the defendant requires proof of your allegations.
Discovery in a Personal Injury Lawsuit
Once the defendant has hired an attorney and a proper answer has been filed, most cases proceed in a relatively similar fashion. There is usually insurance to cover the personal injury and wrongful death lawsuit and the insurance company hires the lawyer to represent the defendant. The next phase of the litigation is known as “discovery.” During this time, the parties seek to learn as much as possible about the other side’s claims, the evidence each side has acquired, and the information each witness possesses. The parties will exchange written requests for information known as: “interrogatories,” “requests for production” and “requests for admissions.” Interrogatories are written questions asking about your claims and defenses and the names of your witnesses. Requests for production seek copies of pertinent documents and other items. Requests for admissions ask a party to admit or deny a certain proposition or statement. They can be useful to narrow the scope of the issues but they can also devastate you case if not answered in time. For instance, if you fail to respond to requests for admissions, they are deemed admitted and can thus admit away your claim or defense. These documents often seek information regarding your injuries sustained in the accident, prior medical history, witnesses to the accident, work history and much other information.
During the discovery period in a personal injury lawsuit, depositions will likely be taken. A deposition involves a party or witness being questioned under oath with a court reporter present and taking down the testimony in shorthand. The testimony can be used at trial and has the same effect as somebody testifying before the judge or jury. The deposition questions can be about a broad range of subjects pertinent to the lawsuit – background, education, work history, medical history, family history, etc. Sometimes, if liability in the accident is disputed, you might be asked about all of the facts leading up the the injury.
After the parties have completed most or all of their discovery, they may move for summary judgment. This is a request that the court find for them as a matter of law on either claims or defenses.
At some point before trial, the parties may participate in mediation. Mediation is a settlement conference which is facilitated by an experienced mediator. Mediators are attorneys, often former judges, that have special training. The mediation process usually starts with both sides and their lawyers together in one room with the mediator. They make opening statements and present an overview of their case. They then separate and spend the rest of the session in different rooms. The mediator goes from room to room trying to help reach a settlement. If the case settles, the lawsuit is over. If no settlement is reached, the case proceeds to trial and nothing said at the mediation can be used against any party. In other words, the course of the unsuccessful mediation session remains confidential.
The first part of a personal injury or wrongful death jury trial is Voir Dire – commonly known as jury selection. During this phase of the trial, potential jurors are brought to the courtroom and are questioned by the judge and the lawyers for both sides. Each side can “strike” (dismiss) potential jurors. There are two types of strikes, peremptory and strikes for cause. A peremptory strike is one in which the lawyer excludes the potential juror for any reason – with no explanation required. Each side gets a certain, limited number of peremptory strikes depending on the court (county or district, state or federal) and is free to exercise them at will unless they are attempting to dismiss a potential juror for a prohibited reason such as the person’s race. The other type of strike is a strike for cause. With this type of strike, the lawyer asks the judge to dismiss a potential juror because of bias or prejudice against their case or client. If the judge agrees, that person is excused. There is no limit to the number of jurors that can be excused or struck for cause. Once all the peremptory strikes and strikes for cause have been exercised, the judge calls the remaining potential jurors in order to take their place in the jury box. In addition to any alternates, twelve are selected in district court and six in county court.
Next comes opening statements. Opening statements are the opportunity for the lawyers on each side to tell the jury what they expect the evidence will show during the trial and what the intend to prove. Technically, the lawyers are not supposed to give an argument during this part of the trial.
After opening statements, the evidence part of the trial begins. The plaintiff- who has the burden of proof – goes first and calls the witnesses needed to prove their case. The lawyer that calls the witness conducts what is called direct examination. The other party or parties’ lawyer then gets to question the witness in what is called cross-examination. During both direct and cross-examination, the lawyers may introduce exhibits and ask the witness questions about them. Many times, the exhibits are admitted before the trial. After the plaintiff is done putting on evidence, the lawyer will “rest” their case and the defendant or defendants will put on their evidence.
When all the evidence has been presented to the jury, the judge will read the charge (jury instructions) to the jury. The lawyers for both sides will then be permitted to make closing arguments to the jury. The jury will then retire to the jury room to begin their deliberations. When a verdict is reached, it is announced in open court.
While the litigation process can include many other motions, hearings and appeals, this is a basic overview of some of the procedures that are found in most personal injury cases.
If you or a loved one has been the victim of an injury caused by the negligent actions of another, and have questions regarding the legal process, contact Michael P. Fleming, former Harris County Attorney today.