What is the Process of a Personal Injury Lawsuit?
In my experience, and the experience of most other attorneys, the majority of Virginia personal injury cases settle without requiring a lawsuit. And even the cases that do require them, most settle before the trial. Still, you may be wondering what’s involved in a personal injury lawsuit and why some cases get filed while others don’t. In this article, I’ll explain the process from the initial filing through the trial, and in what situations lawsuits may be necessary or the best move forward.
Why do some cases require lawsuits?
The two most common reasons to file a personal injury lawsuit are: (A) the responsible party’s insurance carrier has denied that their client was negligent or liable in some way, or (B) the parties tried negotiating a settlement but could not reach an agreement about the amount. In situation A, a lawsuit is necessary because the injured person will not receive any compensation otherwise, and, generally speaking, the only way the insurance company/defendant can make the lawsuit go away is by negotiating a settlement or taking it to trial. In situation B, a lawsuit can put pressure on the insurance company and increase the injury victim’s negotiating leverage due to the threat of trial. However, evidence occasionally is discovered during the lawsuit that weakens the injury victim’s claim, so it’s important to have a skilled attorney who can thoroughly evaluate the risks of filing suit.
Another other common reason to file a lawsuit is to preserve and acquire certain pieces of evidence. Most car accident claims don’t have a substantial risk of losing precious evidence without a lawsuit, but in cases against a commercial tractor-trailer or other complex personal injury cases, such as medical malpractice or an industrial accident, a lawsuit may be necessary to gather sufficient evidence to prove the injury victim’s claim.
What are the steps of a lawsuit?
A Virginia personal injury lawsuit can be broken down into 7 steps but before diving into them, I should explain a couple of terms. “Plaintiff” is used to identify the person who initiated the lawsuit, which is the injury victim in a personal injury case. “Defendant” is used to identify the individual party who was sued, not their insurance company. Something that’s surprising to a lot of people is that lawsuits in Virginia are not filed against the insurance carrier directly, but the carrier does assign a lawyer to defend the responsible party and, for all intents and purposes, pulls all the strings on the defense side of the case.
And, before getting into all the steps, I should mention that Virginia has two types of state courts in which the plaintiff could file the lawsuit: general district court (GDC) or circuit court. This article will explain the procedure of a circuit court case, but before getting into that, it’s worth giving a quick explanation about GDC.
General District Court: The GDC could be characterized as “small claims court” because it is limited to claims that are worth $50,000.00 or less. In GDC, the process is simple:
The plaintiff must file a “Warrant in Debt,” which is a simple form that you can get from the court, along with paying a small filing fee. The court will then provide the plaintiff with a “first return” date (explained in step 3).
The plaintiff must serve the defendant with the Warrant in Debt.
The parties appear at the “first return” date and set the case for trial.
The parties appear at trial and present their evidence and arguments. The case is heard by a judge instead of a jury, and the judge will render a verdict.
The parties have a short window to appeal the judge’s verdict to the circuit court for a new trial, in which event the circuit court process generally applies.
Now, back to the procedure of a circuit court case:
Step 1: Filing the lawsuit
In Virginia, the plaintiff starts the lawsuit by filing a “Complaint,” which is a legal document outlining the facts and the legal theories under which the plaintiff claims the defendant is liable. Along with paying a filing fee, the plaintiff must serve the defendant with the complaint and a summons
Step 2: The defendant’s response
Once the defendant has been served, they have a short time period to respond to the Complaint in writing. Typically, they file an “Answer” in which they admit or deny each allegation in the Complaint, as well as provide any defenses they believe may apply. There are other responses the defendant can submit besides an Answer, but this article will not get into those.
Step 3: Discovery
The longest part of a lawsuit is the phase known as “discovery,” which is when the parties are gathering evidence from each other and third parties. Discovery essentially covers the entire time period between the defendant’s Answer up to shortly before the trial. There are numerous tools at each party’s disposal to acquire evidence. These include:
Interrogatories. These are written questions issued from one party to another that must be answered under oath.
Requests for production. These are written requests for documents or other tangible evidence issued from one party to another.
Subpoenas duces tecum. These are legal commands that the attorneys or the court can issue to non-parties to provide certain documents, such as demanding medical records from a hospital.
Depositions. These can be characterized as formal interviews. Someone is selected as a witness—whether it’s the plaintiff, defendant, a police officer, doctor, or someone else—and they are asked questions by all the attorneys involved. The witness must answer the questions under oath, and their answers have the same effect as if they were testifying in court.
These are the primary ways in which the parties gather evidence about a case.
Step 4: Pre-trial motions and hearings
During or near the end of the discovery phase, the parties may wish to file various motions with the court to decide certain issues before trial. Some examples are:
Motion in limine. This is a motion typically filed to exclude certain evidence from being presented at trial. Parties usually file these motions ahead of time so that they do not have to make objections or argue about them in front of a jury, which makes the trial more efficient.
Motion for summary judgment. This motion asks the court to decide the case, or at least a particular aspect of a case, without a trial. These can be very complex but challenging to win because a party can only win this type of motion if there can be no serious dispute about a particular set of fact or issues.
Step 5: Mediation and pre-trial settlement negotiations
Many cases, especially cases involving complex liability issues or catastrophic injuries, involve a mediation. This is a structured negotiation that is facilitated by a neutral third-party known as the mediator, who is often a retired judge or non-practicing lawyer.
During a mediation, each party and their attorney is usually in their own room without the other party present. The mediator will go back and forth between the parties and provide each side’s arguments, settlement offers, and the mediator’s unbiased opinions about the merits of the case. Mediations are popular because the mediator should be able to provide an objective view of the case that perhaps the parties couldn’t see on their own, thereby getting each side to see certain risks they didn’t recognize before.
Many, maybe most, mediations are effective at resolving the case, but if not, the case will proceed to trial, unless the parties settle it on their own (which they could do at any time, even on the courthouse steps the morning of trial).
Step 6: Jury trial
The jury trial is where the parties present evidence through witness testimony, documents, and other evidence in order to prove their claims or defenses. The jury is in charge of determining the facts based on the evidence they’ve received and then reaching a verdict after deliberating. The jury will decide questions such as whether the defendant was negligent/liable and how much compensation the plaintiff is entitled to based on their injuries. A jury trial can take one day, several days, or in extreme cases, weeks to months, but trials that long are rare.
Step 7: Post-trial and wrapping up
After the jury has reached a verdict, the plaintiff or defendant may have certain motions to make, such as a motion for a mistrial, or there may be an issue one party decides to appeal. But, usually, once the trial is over, the next steps for the plaintiff are to receive the proceeds from the insurance company (if the plaintiff won) and make sure any liens or other legal obligations are satisfied. The plaintiff will work with their attorney to make sure everything is closed and wrapped up smoothly.
Conclusion
Although personal injury lawsuits can seem complex, they generally follow a predictable path: filing the complaint, going through discovery, filing pre-trial motions, engaging in settlement discussions, and, if necessary, going to trial. While most cases resolve before a jury hears the evidence, every case should be prepared as though it will go to trial so that injury victims are in the strongest position to obtain a positive result.
Having a skilled and experienced Virginia personal injury attorney on your side during the process can provide you peace of mind that your case will be heard and decided fairly.
