You or a loved one has suffered a serious injury. You either know or suspect that another person or company is at fault. You feel you are entitled to compensation. You can’t help but wonder: should I file a lawsuit? What happens in a personal injury case? Our Houston injury attorneys discuss below.
Step 1: Initial Consultation
What are the steps in a personal injury lawsuit? The first step is to consult with an attorney.
Things to keep in mind during your initial consultation:
- Consults are privileged. Discussions with a lawyer are privileged, which means that they are kept private between you and the lawyer.
- Be honest. It is critically important that you are 100% honest with the attorney during your initial consultation. You will probably be asked sensitive personal questions, such as whether you have ever been convicted of a crime. You may be tempted to gloss over facts you are uncomfortable about because you feel they are not relevant. But you need to avoid this temptation. Here’s why: if you disclose bad facts ahead of time, your lawyer can minimize their impact on your case. But if do not tell the truth, the other side will find out your bad facts. They will use them against you in ways you don’t expect. By the time you realize how the bad facts are going to be used against you, it is often too late to undo the damage.
- Ask questions. Your initial consultation is not just the lawyer’s opportunity to learn about your case. It’s also an opportunity for you to get to know the lawyer. Ask questions. Make sure you feel comfortable. You need to have confidence that the lawyer is going to work hard to get you the best outcome.
- Enter an engagement. After the initial consultation, if you and the lawyer decide to move forward, you will probably be asked to sign an agreement confirming the representation. This is commonly referred to as an engagement letter.
Step 2: Investigation
Once you have signed an engagement letter, your lawyer’s team will begin their investigation. The goal is to determine whether or not you have a claim, and if you do, how to best pursue it.
The investigation of your case will depend on what your case is about. For example, different things need to be done in cases stemming from trucking accidents, offshore injuries, plant or industrial accidents, defective drugs, dangerous products, oilfield accidents, and wrongful death.
Step 3: Filing a Claim
If the investigation reveals you have a good case, your lawyer will help you file a claim.
There are several different courts and venues where claims can be filed. Often times, selecting the right forum requires a great deal of strategy and research.
The two most common forums for personal injury cases are state court and federal court. Each one of those forums has different rules and procedures. As a general rule, state court rules are less stringent, although that is not always the case.
Step 4: Fact Discovery
Once the suit is filed, both sides will conduct “discovery.” The point of discovery is to identify the key facts in the case, including what each side feels is important.
Fact discovery typically includes written discovery and depositions:
Written discovery often includes disclosures, document requests, interrogatories, and requests for admissions:
- Disclosures – basic information that has to be revealed in every case: names of witnesses, whether or not there is insurance, damages claimed, etc.
- Document requests – requests to produce documents or other evidence. Depending on the kind of case, these requests may include things like emails, photographs, text messages, policies and procedures, instruction manuals, etc.
- Interrogatories – written questions about the case that must be answered under oath. For example, an interrogatory in an accident case might ask you to list the doctors you have visited in the last three years, or what you were doing at the time of the accident.
- Requests for admissions – ask the party to admit or deny certain facts. For example, a lawyer in a Houston work injury case might ask the defendant to admit or deny that the correct company has been sued.
A deposition is testimony given under oath outside of a courtroom. Depositions usually take place in a conference room at a law firm or hotel. In addition to the witness, the lawyers from both sides will be present, as will a court reporter who transcribes everything that is said, and possibly a videographer who tapes the testimony. The lawyers from both sides are given an opportunity to ask questions, and the witness answers them under oath, just like in a trial. In fact, depositions are often read or played at trial – if a witness is unavailable, changes his or her story, or in some states (like Texas), if the lawyer simply likes the deposition testimony and prefers to use it rather than question a live witness.
Step 5: Expert Discovery
Depending on the kind of case, the parties may hire expert witnesses. Expert witnesses are people with unique knowledge and experience. They are asked to testify to help the judge or jury understand complicated issues.
For example, in a defective electronic product case, the parties might hire engineers to discuss whether or not the product had a manufacturing or design defect.
Step 6: Mediation
After or near the end of discovery, a judge may order the parties to mediate. A mediation is when the parties and their lawyers meet with a neutral mediator in an effort to settle the case.
During the mediation, both sides point out why they believe they should win. The mediator discloses those facts to the other side along with his or her assessment of them, and typically other things the parties might want to consider in evaluating the case.
Step 7: Pretrial Motions and Filings
If your case does not settle, your lawyers will likely have to prepare pretrial motions and filings.
One motion defendants often file is a motion for summary judgment. In this kind of motion, defendants claim the facts are so clearly on their side that there is nothing for the judge or jury to consider at trial.
Another motion that may be filed is a motion to exclude the other side’s experts – called a “Daubert” motion – either because the experts are not qualified, or because their opinions are not reliable.
There will also typically be motions to exclude evidence, called motions in limine.
Exhibit lists, witness lists, and proposed questions for the jury are among the other items your lawyers may have to prepare and file before your case goes to trial.
Step 8: Trial
The trial of your case may be before a judge or jury. A trial before a judge is called a bench trial.
Trials typically involve the following:
- Opening statements
- Witness testimony the plaintiffs want to offer
- Witness testimony the defendants want to offer
- Closing arguments
Step 9: Appeal
After the judge or jury enters a verdict and final judgment, the losing side will likely appeal. Appeals can take quite a long time and involve several levels of courts. For example, in Texas state civil court, intermediate courts of appeal hear the first round of appeals. If one of the parties is unhappy with the court of appeals‘ ruling, they can appeal to the Texas Supreme Court.
Of course, your case could settle during any step of this process – and most do.
Morrow & Sheppard LLP Can Help You Navigate Through the Process
This article outlines some of the steps in a typical personal injury case. You surely have more detailed questions, and you are entitled to have them answered.
Our personal injury lawyers would be privileged to answer your questions during a free, confidential consultation.