Last Updated: January 22nd, 2019 at 10:22 pm
Read Time: 9 Minutes
Many personal injury claims are resolved before a lawsuit is filed. However, if an adequate settlement cannot be reached outside of court, your attorney will file a lawsuit in court. A judge will usually set a deadline for phases within the lawsuit process. The entire process can take anywhere from months to a number of years, depending on factors such as the intricacy of the case.
The following details the process and phases you can expect if your personal injury case is taken to court.
Prior to the trial beginning, there are phases that will need to be completed first. They include the following:
Complaint and answer phase – The Complaint is the document that details your allegations with regards to how you were injured and the extent of your damages. Usually, it's filed in the county where your injury occurred or where the party that damaged you resides.
Once filed, the Complaint is delivered to the defendant. The defendant must answer the Complaint in a set period of time. The Answer refers to the document in which the defendant admits to or denies the allegations of the Complaint.
Discovery phase – The discovery phase is the formal process of exchanging information between both parties regarding the witnesses and evidence that will be presented at trial. The main purpose of this phase is to narrow the issues and make the parties aware of the evidence that may be presented at trial.
Motions phase – A motion is a proposal written to the court requesting an asked-for order, ruling, or direction. There are a variety of different motions, and it has become standard practice to file certain kinds of motions based on the type of case. Sometimes a hearing is held so that the court can consider both sides of the arguments.
Going to Mediation
Mediation is a method for alternative dispute resolution that can be requested at any point throughout the court proceedings. If requested, both parties, their attorneys, and a neutral mediator will be present throughout every session.
If you attend mediation, both sides will present your case and engage in settlement negotiations. These will be facilitated by the mediator, with both parties as well as their attorneys receiving the opportunity to contribute. Mediations are non-binding; either party reserves the right to accept or reject the offer.
Conversely, both parties can head to arbitration as an alternative dispute resolution. Sometimes a court may require that a case go to arbitration as opposed to actual court, because a judge may believe that a reasonable settlement is in reach. Other times, arbitration is a voluntary decision of both parties to save both the expense of court costs.
In arbitration, a hearing will take place between the plaintiff and defendant, judged by a neutral party known as an arbitrator. The difference between arbitration and mediation is simple. While mediations are non-bonding, meaning either party can accept or reject the offer, arbitration is usually binding. When the arbitrator makes a decision about the settlement, it is final.
Going to Trial
A trial provides the opportunity for the plaintiff to argue his or her case so that a jury can examine the evidence, decide what really happened, and rule on whether to find the defendant liable or responsible for the plaintiff’s injuries.
A personal injury trial normally consists of six phases:
- Jury selection
- Opening statements
- Witness testimony and cross-examination
- Closing arguments
- Jury instruction
- Jury deliberation and verdict
Even if you receive a verdict in your favor, your personal injury case may not be over. Be prepared to deal with the possibility that the defense may appeal the case in search of a different verdict. If an appeal is not brought, there most likely will be a length of time before you receive your monetary compensation. Once you have received the check for all monies owed to you, you can consider your lawsuit complete.
How Many Personal Injury Claims Go to Court?
If going to court is a large concern of yours, you might not need to worry as much as you think. In fact, only four to five percent of the personal injury cases in the United States go to trial. 95 percent to 96 percent of personal injury cases are actually settled pretrial, according to the U.S. Department of Justice.
There are many reasons as to why a majority of personal injury claims settle before heading to court. The fact that insurance companies are involved in most cases goes a long way in explaining the high rate of settlements. Generally speaking, insurers have the money to pay out claims and are less likely to take the risk of having no control over costs when they have to go to trial, deal with a jury, and pay legal fees.
Aside from the interests of insurance companies, there are situations in which settling can benefit both the defendant and the plaintiff.
- Control Risks - If a defendant knows he is in the wrong and will be held responsible, he might not want to risk having the case be tried in front of a sympathetic jury, which could award a substantial settlement for pain and suffering, or punitive damages. A settlement gives the individual more control over how much money is offered.
- Stay Out of the Public Eye - In the situation that the case involves a larger company or individual with a public profile, a settlement allows the defendant to remain out of the public eye. Settlements can be drafted with the inclusion of a confidentiality agreement so that the case can remain under wraps.
- Swifter Settlement - Trials can extend for months, or even years, in the case of appeals. If a victim is suffering under lost wages and medical expenses, waiting that long to receive financial relief may not be a feasible option.
- Guaranteed Victory - When a case goes to court, there is no guarantee that a plaintiff will win the case. To avoid losing the case and receiving nothing in terms of compensation, settling can seem to be a safer option.
A personal injury attorney understands that the decision to settle or go to court can be incredibly complicated. That's why the compassionate attorneys at Weinstein Legal will walk you through the process from start to finish, so you understand your odds of winning a case, and what a potential trial could mean for your legal process.
Will My Claim Go to Trial?
It is likely that disputes over fault for an accident or injury are resolved through informal settlements. However, four to five percent of personal injury claims will become formal personal injury lawsuits. If your concern is whether or not your claim will go to trial, it's best to look at the common reasons why a case would head to court.
- Both parties cannot agree on who caused the accident. If the plaintiff and the defendant cannot come to an agreement regarding who was responsible for the accident, there are few options but to go all the way to trial.
- Both parties cannot agree on compensation amount. Whether the insurance adjuster is unable or unwilling to negotiate, the other party is being unreasonable, or the victim feels they deserve an amount beyond the offered settlement, when both parties cannot agree on compensation the case will head to trial.
- The plaintiff chose to sue. In some cases, the victim believes that in order to receive fair compensation and receive justice for the accident, the courtroom is the best place to hash things out.
Types of Cases That Go All the Way to Trial
Generally speaking, a case heads to trial when the two parties cannot come to an agreement. However, certain cases have more of a tendency than others to make it all the way to trial. This is typically because the settlement amount is a large sum, or because the matter of negligence is being disputed.
Types of cases that have a higher rate of going to court include:
- Wrongful death
- Truck accidents
- Medical malpractice
- Pedestrian accidents
- Uber and Lyft accidents
- Accidents which result in Traumatic Brain Injury (TBI), or spinal damage
Types of Cases That Are Settled Outside of Court
The U.S. Department of Justice reports that nearly 96 percent of cases are settled outside of court. Examples of the types of cases that typically do not head to court include:
- Property damage cases
- 'Fender bender' accidents
- Dog bites and animal attacks
What Should I Expect from My Attorney?
Preparing for a court case typically begins long before a law suit is filed. If you've recently suffered injuries due to another's negligence, your first step should be to contact a trusted personal injury attorney, like the team at Weinstein Legal.
For all cases, trial preparation begins as soon as both the attorney and the client sign the attorney contract. A qualified personal injury attorney would begin gathering evidence and forming a solid case right away, ensuring that a victim has the best chances at securing compensation either through settlement or through a jury verdict.
Say, for example, if a plaintiff received severe whiplash after an accident with a negligent driver. The first step would likely be to negotiate with the at-fault driver's insurance company to come to a settlement. An experienced whiplash attorney would thoroughly investigate the facts of the case to secure the whiplash victim the maximum compensation for their injuries. If both parties fail to come to a settlement agreement, an attorney can file a formal lawsuit against the at-fault party on behalf of the victim.
What Should I Expect from Trial?
Following the jury selection process, an attorney would begin by making his or her opening statements. This would consist of explaining how the defendant was responsible for the accident which caused the plaintiff's whiplash, and how the trauma to the neck has caused the plaintiff pain and suffering, lost time at work, and perhaps even permanent damage.
An attorney's opening statement would be followed by testimony from a medical expert witness, who would examine the material facts of the case, such as medical records. During cross-examination, the defendant may attempt to disprove the facts of the case. For example, the defendant's attorney can claim that the plaintiff's injuries are the result of a pre-existing injury, and not the accident caused by the at-fault driver.
In this case, the plaintiff's attorney could call an accident reconstruction expert to the stand, to testify as to why the present accident resulted in the current whiplash injury. Witness statements would be followed by closing statements from the attorneys of both parties. Once all is said and done, the jury would be instructed to review the facts of the whiplash case, and would be tasked with coming to a factual conclusion. After the jury deliberates, a verdict would be read.
Contact an Experienced South Florida Attorney Today
If you have been injured in an accident and are considering filing a personal injury lawsuit in order to receive payment for the damages caused to you, it's vital that you have an experienced Fort Lauderdale personal injury attorney on your side. Remember, you only have one opportunity to fight for the compensation you deserve. To schedule a free consultation, contact Weinstein Legal today at 954-845-0505.