Steps to Take if You are Injured in a Car Accident (Part 3)

The following is the final post of our series on steps in a car accident case.

Litigation begins with filing suit. This is where your lawyer will draft a complaint and file it with the appropriate court.

From there the defendant has 20 days to file his/her answer or a Motion to Dismiss. Sometimes there will be jurisdictional issues like whether you have properly served the defendant or whether you have brought the case in the right jurisdiction. If there are not jurisdictional issues, then likely the defendant will just file a normal answer that includes his/her affirmative defenses. An affirmative defense is an explanation why the defendant should not be found liable and the burden lies on the defendant to prove them.

After the answer, formal discovery begins. This is the chance for both parties to find out more information to prove their cases. This is done mostly through interrogatories and depositions. Interrogatories are written questions that are sent to the other party to respond to. You can ask the defendant anything as long as it is relevant to the case, and he/she is required by law to answer (unless it is privileged information). Similarly, depositions are a question and answer session that is done in person. This is not done in a courtroom, but rather in a legal office or court reporters’ office. A judge will not be present, but a court reporter will be there recording everything said, and it can be used in court if a trial takes place. The person being questioned is also under oath so that person must answer truthfully.

Once discovery has gone on for some time, there is usually a date when all motions must be filed by. Motions are tools by parties to limit a case the opponent can bring or throw out the case altogether. For example, a party may file a motion for summary judgment. This means that a judge must find that based on the evidence presented there are no issues of genuine material fact and that just based on the law one party should win. In other words, both sides generally agree to the important facts of the case, and the judge decides based on the law whose side is right. There is also something called partial summary judgment, which is the judge deciding a particular issue or issues and letting the jury decide the rest. For example, the judge may decide the issue of liability, or whether the defendant is at fault, at summary judgment and the trial becomes simply about damages, or how much should the plaintiff be awarded.

Other motions include such things like motions in limine, which keep out certain information at trial which may be unduly prejudiced against a party or irrelevant.

Once the motions are decided, the judge will usually order mediation (although it often will take place earlier). Mediation is when both parties have a mediator attempt to help settle the case. The format is that all parties and lawyers go to the mediator’s office. There are initial presentations by each side’s lawyers stating the strengths of their cases and the flaws in the other sides. The purpose is to scare the other side into settling at an amount the arguing side desires. The mediator will also present to both sides why settling is better than going to trial (how trial is risky and you may come out with nothing; how you are leaving it in the hands of unknown jurors but if you settle now you have control over it yourself, and how trials are expensive and time consuming).

After the initial presentations, both sides go into separate rooms, and the mediator will go between them asking for numbers on how much they would like to settle the case for. Usually both sides start off with a wide amount of difference between them, but the mediator’s job is to try to bring them both closer and closer. The mediator will continue going back and forth and try to convince each side why the other side’s case is strong and why you should settle. This goes on for a few hours until the sides have agreed on an amount and settle or they can’t agree and the mediation ends without resolve. This can be a stressful time for all as you are forced to make difficult decisions. Do I accept their offer, which is much lower than what I thought my case was worth, or do I risk going to trial and not getting anything? Your lawyer will help you to come to a decision, but you, as the client will ultimately have to make the final call.

If the mediation is unsuccessful, sometimes a case will still settle before trial. However, if the parties still can’t agree then trial is the next step. Most people have seen trials on TV or movies. Although usually not as dramatic as depicted, the real thing is quite dramatic for those involved. This is your chance to tell the story and your lawyer is the director. The lawyer must pick a jury and present the case in such a way that the jury will agree that more likely than not, the other party is at fault and you deserve compensation for your injuries. Most civil trials last from three days to two weeks. It is definitely emotionally exhausting for all involved. It is also, as before mentioned, costly and risky. This is why most cases settle before trial. However, we all have a right to a trial by jury and it is something the founders of our country considered very important.

In other posts we will go more in depth on trials and all other components of the steps discussed, including appeals.  But for now we will leave it at that.

Photo courtesy of Flickr by mikecogh

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