As with any other litigation matter, the legal process in personal injury cases is complex and is a stressful experience for the affected parties, as well as their friends and family. The following is a general overview of the legal process involved meant to provide a framework for how the case will proceed through the legal system.
Individuals considering commencing a personal injury lawsuit should consult with a lawyer as soon as possible following the injury or accident since personal injury cases are subject to strict time limitations within which you can seek to enforce your legal rights. It is imperative that you consult with a qualified lawyer as soon as possible to understand how long you have to commence your personal injury lawsuit. Waiting too long to consult with a lawyer may result in your inability to sue the party who caused your injury.
Before proceeding with the outline of the legal process in personal injury lawsuits, is it important to note that the vast majority of cases are settled by the parties prior to trial. For any number of reasons, not the least of which is the expense of a trial, parties reach a settlement by negotiation or agree to proceed to mediation.
Legal Process in a Personal Injury Case
1. Initial Interview & Document Gathering
The first step to commencing a personal injury lawsuit is to contact a qualified lawyer and set up an interview to review the facts of the case, your desired outcome and to familiarize yourself with the details of the process moving forward. During this initial interview, the lawyer will ask questions about your general background, the incident that led to the injury, your work and family history, and any previous medical conditions of the injured party. Any details you provide to your lawyer will be kept in strict confidence.
Following the initial interview, once you and your lawyer have discussed the merits of the case and the key facts, the lawyer will instruct you to gather specific documents, which will be used to establish your case. This may include a wide range of documents including those relating to your employment history, income or police reports. Depending on the number of documents being gathered and the various originating sources, this process can be quite long.
2. Pleading Stage
A personal injury lawsuit is formally commenced when the injured party, called the Plaintiff, files with the Court a pleading called a Statement of Claim. This legal document will set out the facts of the case and the Plaintiff’s position against the party or parties who has caused the injury, called the Defendant.
Once filed, the Statement of Claim will be served on each and every Defendant who will have a set number of days to file a response. If the Defendant hires a lawyer to act on their behalf, the lawyer will likely request an extension of the period within which a response must to filed.
In the event the Defendant does not file a response or request an extension within the specified time period, the Plaintiff can immediately proceed to seek a judgment against the Defendant. However, this scenario is not common as most Defendants either file a response or retain a lawyer and seek an extension.
The next step in the litigation process is the process of discoveries which takes place in two stages: documentary discovery and oral discovery. The point of this step is to allow the parties to review, examine and analyze the supporting documents and facts of the case.
First, the Plaintiff will provide the Defendant with an Affidavit of Documents setting out all of the documents which are relevant to the Plaintiff’s case. Subsequently, the Defendant will be required to provide the Plaintiff with an Affidavit of Documents similarly containing the documents relevant to the Defendant’s case. Any documents which become available following the initial Affidavits of Documents can be exchanged using a supplementary Affidavit of Documents.
Upon the completion of documentary discovery, the parties will move to oral discovery. Oral discoveries take place at a formal meeting between the parties and their respective lawyers during which the Plaintiff, the Defendant and any witnesses will testify under oath or affirmation as to the facts of the case. The parties and witnesses will also field detailed questioning from opposing counsel. The bases of the oral discoveries are the initial pleadings and documentary discovery.
Oral discoveries are quite involved and may take several days or even months depending on the complexity of the case and the amount of documents used by each party. During oral discovery, lawyers for any of the parties can request additional documents that they feel would be relevant to the case. The party receiving the request to produce any additional documents would provide a promise under oath called an undertaking, to produce the document within a specific period of time.
4. Pre-Trial & Trial
Once discoveries are complete, the case is ready to proceed to pre-trial and finally trial. The lawyers will at this stage request a trial date. Several months prior to the scheduled trial date, a pre-trial will take place at which the Plaintiff and each of the Defendants will submit their theory of the case. A pre-trial Judge presiding over this proceeding will review the submissions of the parties and discuss with the lawyers the strengths and weaknesses of the parties’ cases. The pre-trial judge may offer his or her opinion as to the case which may be helpful in negotiating a settlement of the case prior to trial.
If the parties have not resolved the case following the pre-trial and fail to settle prior to the scheduled trial date, the parties will proceed to trial. The lawyers for the Plaintiff and the Defendant will present their client’s case before the court, including relevant evidence and witnesses. The parties themselves, along with their family and friends will likely have to testify at the trial.
At the conclusion of the trial, a decision will be handed down either by the judge or jury depending on the mode of trial selected at the outset.
This article should not be relied upon as legal advice - the comments may not be applicable to you and may not be up to date. If you have any questions, you should contact a lawyer.