Step 1: Consultation with an Attorney
You are injured in an accident and want to ask a financial compensation ? Learn in this article the personal injury case steps you should follow to maximize your financial compensation.
As discussed with the exemple of a serious car accident, the first step (after medical care) when you are involved in a personal injury case is to consult a lawyer. This attorney consultation should answer the following:
- Who is negligent?
- Other parties involved?
- The extent and severity of injuries;
- Costs in terms of documenting the injuries;
- Medical costs including insurance cover;
- Legal costs in terms of litigation, etc
- Advice on the statute of limitations
Usually, if a plaintiff’s damages appear to be more than the small claims court limit (this is usually around $5,000 to $10,000), most plaintiffs will talk with an attorney to get expert legal advice. This is also important because personal injury law can be complicated, and consultation with a lawyer will help the victim get all their questions answered.
If the plaintiff has a case that is worthy of exploring, attorneys will agree to conduct exploratory investigations, such as seeing whether the opposing party has applicable insurance and/or sufficient assets. At this stage, if both parties satisfy each other, the lawyer will sign a fee agreement with the client. After this, the attorney-client relationship will be official.
Step 2: Discovery of the personal injury and Investigation steps
The attorney is responsible for investigation of your personal injury claim. These include an investigation of the following:
- Police reports;
- Accident scene;
- Witness testimony;
- Medical records and bills;
- Employment history and earning potential of the injured parties; and
- Expert report outlining the circumstances of the accident and injuries.
The attorney may also need to factor into your investigation if you have specific evidence related to the car crash, such as an accident report. The defense lawyer may also request that you undergo an Independent Medical Evaluation by a doctor specified by the defense.
Once you are the the end of the discovery process, both sides shall schedule depositions of the opposing party and witnesses. A deposition is a question and answer session that is taken under an oath. This deposition allows the personal injury lawyers to ask questions of the parties that are involved in the accident. These people can be witnesses, police officers, doctors or others who can provide evidence in the case at trial.
Step 3: Demand Letter
Typically, the next step is to create a demand letter. This document puts forward the details of your case including the potential liability. The damages mentioned here should include even intangible things such as pain, suffering, loss of life’s enjoyment, etc. The demand letter must be drafted very carefully by your attorney. Often, it is the first interaction that you have with the opposing party, who will then build a case against you based on the submissions in the demand letter.
Many law firms use extensive document management systems nowadays to collect their documentation from their clients. Some will even give their clients iPads that are full of videos and documentation. The idea here is to be as prepared for trial from the very start.
Step 4: Filing of a personal injury complaint
The plaintiff’s attorney, after establishing that a legitimate case exists, will file a personal injury complaint in the civil court. The complaint is the beginning of official documents in a case filing, thus, one has to be as detailed as possible. This should include details on what the defendant did, how the plaintiff was harmed, etc.
After the attorney has served the complaint, he usually takes a month or so to locate the defendant and serve him with the complaint. The service of complaint involves physical delivery of the complaint to the defendant. In that way, the defendant cannot come back and say he wasn’t aware of the claim at a later stage. This also apprises the defendant of the likely date that he has to appear in court.
Step 5: Pre-Trial Formalities and Mediation
The pre-trial formalities and the mediation is an important stage where each side will ask the other for evidence and witness information. Both sides will also appear in court to inform the judges about how the case is proceeding for each party. Each lawyer will agree to mediate, or arbitrate, and a trial date that is feasible for both parties will be set.
Usually, such court appearances can take a while, and can even push the likely date of trial by a few months into the future. Once the discovery process is complete, a defendant is well within his or her rights to ask the judge to throw out a case on summary judgment, by arguing that a plaintiff cannot win at trial. Often, these summary judgment motions are not successful at trial.
As the parties move towards trial, a series of activities begin. Both parties will try to engage in mandatory settlement conferences or make motions to see what evidence will likely be admitted at a trial. This is also a stage for where a mediator, such as a current or former judge arrives. He will oversee mediation between the parties to try and reach an agreement in the matter.
Since mediation can have a long-term impact on the case, parties often opt out for judges and people with training in mediation. Keep in mind that the mediator has no power to order a settlement. The mediator will simply try to uncover your interests or explain what weaknesses might be present, so you get a clearer picture about your chances. However, there has been a tendency in recent times to stop personal injury cases steps at the mediations stage. Courts are also ordering mediation after the exchange of information is complete.
Step 6: Personal injury case settlement
Many personal injury cases settle before trial. Initially what may seem like a reasonable amount. But after adding existing and potential future losses, one discovers that this amount only covers a fraction of what a person needs in order to be made whole again. The parties can settle and end the case at any point, even before they filed a complaint.
Most personal injury lawyers are skilled negotiators, and help in settling a case before it goes to trial. If you reach a settlement, this is put in writing and the case is dismissed. If the offer is too low, there is always a risk that the jury will offer even lower than what you have anticipated. They may also decide against you altogether, and so your attorney should advise you on the best course of action in terms of filing a lawsuit or accepting the defendant’s offer.
Step 7: Trial
If the motion doesnt’ resolve the matter, or doesn’t settle, the trial begins. At trial, the injured person has the burden of proving that the opposing party was negligent. In doing so, the lawyer has to show how much money a jury should award in damages. A jury evaluates the facts, determines fault and awards damages. It is important to have a lawyer that understands the trial process. There is never a guarantee when any case goes to a trial, hence having lawyers with a good track record is likely to expedite getting a favourable result.
Step 8: Appeal
At the end of these personal injury case steps, after the trial, the losing party has the option to appeal a case. The appellate process can be quite different from the trial process and it is often helpful to have experienced appellate lawyers or practitioners to work on matters.
By Samarth Chaddha, Attorney
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