Let's take a few moments and try to outline the steps of a lawsuit. First, you have to decide whether or not it makes sense to file a lawsuit. In some cases, the costs involved with filing a lawsuit and going on that journey may equal or exceed the value of your case. If your case is worth $10,000, it doesn't make sense to spend $100,000 to present a case in court. There are many costs involved in filing a lawsuit. There are filing fees, deposition costs, jury fees, expert witness fees, and the list goes on.
Filing a lawsuit should be done after careful consideration. You want to make sure you file your lawsuit within the statutory time limits. For example, as this blog post is being created, the current time limit to file a lawsuit in California is 2 years from the date of the accident. That means if an accident happens on January 1st of that year, you have until January 1st, two years later, to file a lawsuit against the individual who harmed you. Keep in mind you are not filing a lawsuit against an insurance company. The insurance company did not crash into you. The insurance company, however, will be involved in the lawsuit as I will explain later.
Once you have made sure that you have complied with the statutory time limit, and you have made every effort to settle the case outside of filing a lawsuit, and you have determined that filing a lawsuit would be financially prudent, then you have to file a lawsuit with the court. A lawsuit begins when the "plaintiff" (the person/s who was injured) files a "complaint" with the court. A complaint is a formal document that outlines why you think the defendant is responsible for your injuries and what you are seeking from the court, typically monetary compensation.
There are different ways to prepare the lawsuit complaint. In some cases, you can use court forms that are sanctioned by the state of California. In other cases, your attorney may choose to draft an original complaint if the case warrants it. Generally speaking, the more complex the case, the more inclined you may be to prepare an original complaint - not one based on the basic forms. In most cases, there is no need to recreate the wheel, and using the typical forms provided by the court is fine.
When the complaint is filed with court, a filing fee is required. This fee is typically anywhere between $400 and $500. Once the court processes the complaint, the court will assign a trial date which can be a year or more away. For example, if you file a lawsuit in July of the current year, you might not get a trial date until December of the following year. Along with the trial date, the court usually provides additional documentation back to the plaintiff or the attorney. The documentation is generally proof the lawsuit was filed.
Now that the lawsuit has been filed and processed, the defendant must be made aware of the lawsuit. Unless the defendant is clairvoyant, the defendant is not going to intuitively know that a lawsuit was filed. They need to be "served" with that lawsuit. Serving the lawsuit involves hiring a "process server" - typically an individual who will take all the paperwork to the defendant and presents it to them. If you've never been served with a lawsuit, you've likely seen someone being served on television. Then, the process server will provide you with "proof" that he or she served the defendant with the paperwork. This proof is called a "Proof of Service" which is nothing but a form filled out by the process server. Now the defendant is formally aware of the lawsuit. The plaintiff now needs to file the "proof of service" provided by the process server with the court so the court is also made aware that the defendant has been served.
Once the defendant receives the paperwork (has been "served"), the defendant has to file something called an "answer" with the court. In the context of a car accident case, the defendant would likely call their insurance company and inform them of the paperwork they received by the process server. The insurance company would then provide their client with a defense lawyer (either an inhouse lawyer or one from an outside law firm). One of the reasons people pay insurance premiums is that most insurance companies will provide you with a defense attorney if you are sued in court.
Of course, if the defendant receives the lawsuit and does not make anyone aware, and they don't file an answer to the complaint, the plaintiff can then file a "request for default." Basically, by not "showing up," the defendant is effectively forfeiting. However that usually is not the case. Usually an answer is ultimately filed with the court. An answer is technically the defendant's response to the allegations made by the plaintiff in the complaint. In most cases, they will simply deny all the allegations made in the complaint. That is very common.
Now that the plaintiff and the defendant are formally involved in the lawsuit, a process known as "Discovery" begins. This discovery process is where both sides to the lawsuit "discover" what the other person's position is in the case. Basically, each side is given several months and various legal tools they can employ to learn about what the other side believes about the case, how they will present the case, what experts they will use, etc.
As noted above, there are various discovery "tools" that either side may use to obtain information from the other. First, there are basic "interrogatories." These are a series of form questions, as well as some custom-crafted questions, that each side can send to the other. The receiving party must answer those questions under oath.
Another common discovery tools is a "Request for Production of Documents." This is a formal request sent to the opposing party to produce any documentation that supports their position. In some cases, the responding party may not have much documentation. Therefore, you don't want to serve that request too early as it may not yield much depending on the case.
Another legal tool is a "Request for Admissions." A request for admissions is when one party asks the responding party to admit or deny certain allegations. If the responding party is unable to admit or deny, they can also state that fact. This legal tool is often used to "box in" a responding party to a certain response on relevant issues of the case.
In some cases, if the plaintiff is alleging residual injury, the defendant can demand that the plaintiff be examined by the defense's hired medical doctor. So, if you claim that you have kidney pain from the accident, it is perfectly acceptable for the defense to have you examined by a nephrologist or urologist. If they want you examined by a psychologist, you can object because that's not the issue. A psychologist arguably has nothing to do with kidney pain.
If you make something an issue, they are certainly entitled to inquire. You can't just make allegations in your lawsuit and expect people to simply agree with them without any resistance. After all, you probably filed the lawsuit because you were unable to settle your claim outside of the court system.
Another common legal tool all parties can utilize is the "deposition." A deposition is when one party gets to ask the other party questions they must answer under oath. This is usually done in a conference room of some sort where the attorney for one party will ask another party to the case some direct questions about the case. The person answering the questions is known as the "deponent." Typically, the deponent's attorney is also present for this deposition and is there to guide their client. In some cases, depositions will be taken of medical experts, other witnesses, and other people who may not be directly involved in the lawsuit. Depositions are quite significant because, in most cases, this is the first time the parties are hearing directly from each other - not simply answering written questions.
After all these discovery tools have been used, each party will arguably learn much more about what the other party believes about the case.
At some point, the parties may agree to try "mediating" the case. The parties will exchange names of potential mediators (usually retired judges and some attorneys) and hopefully will agree to a particular mediator. The mediator is a person who tries to facilitate settlement of the case prior to a trial. At the mediation, the mediator will often put the parties in separate rooms and will typically go back and forth between both parties trying to reach a settlement. Typically, Parties will agree to mediation if they believe there is a chance it will help settle the case. Mediation can be quite expensive for both sides. However, the courts really favor mediation because it gets the parties talking and hopefully unclogging the already burdened court system.
Instead of mediation, some parties may agree to go to "arbitration." Arbitration is where a third party, usually a retired judge, will listen to the case and make a decision that is binding upon everyone involved. Certain parameters will be set out before the arbitration and agreed to in writing, such as the minimum amount the plaintiff could recover and the maximum amount of the plaintiff could recover. The arbitrator is typically not made aware of these limitations or it might influence their decision.
Therefore, Instead of spending several days or weeks in court, parties may sometimes more efficiently handle the resolution of their case using these alternative dispute resolution methods (mediation and arbitration).
Finally, if the parties have been unable to resolve the case, they may indeed end up in court doing a trial in front of a jury or sometimes only a judge. Both sides of the case will do their best to present their case to the jury and to make their arguments. The jury then decides how much to award the plaintiff, if any. Keep in mind, the jury may disagree with the plaintiff and may indeed award the plaintiff nothing. Just because you file a lawsuit, doesn't mean you're going to get money. In fact, you may end up losing money if you do not prevail in the lawsuit. In fact, there are situations where you could be personally on the hook for certain costs and fees incurred by the other party. Also, if you received any medical care or other services on a lien, you will likely still owe those providers for those services. There is no "free lunch" when it comes to personal injury litigation. Late night commercials for injury lawyers may lead you to believe there is no down side. However, in reality, you must consider filing a lawsuit carefully and cautiously. Make sure you consult with your attorney as to whether the journey makes sense or not.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia,