Many of our clients have questions about how a personal injury case will be handled in court. Some people think their claim can’t be settled without a lengthy, stressful court process. But in reality, many claims are settled out of court.
A settlement offer happens when the insurer or defendant offers to pay some amount to the plaintiff. This can happen before the plaintiff has filed any claims, or during a trial—even while the jury is deliberating. In exchange, the plaintiff agrees to drop any claims or promises not to sue in the future. Insurance companies frequently make settlement claims as they like to hedge their bets. Settlement allows the defendant or insurer to control their costs, and keeps their case out of the press—useful for large corporations with a public profile, especially if only one or a few people were injured.
However, a settlement is sometimes attractive to the plaintiff, as well. It can help the injured person avoid a lengthy, stressful trial, and ensure the plaintiff gets a victory—instead of taking the risk of losing and getting nothing.
While a settlement can be a quick, less costly way for the injured party to receive compensation, some people choose to turn down a settlement. Usually this happens because the settlement offer is too low, and they feel they can get more at trial. They may also need more money to cover future medical bills relating to their injury, lost wages, etc. Other times, a defendant may not make a settlement offer.
Once the lawsuit has been filed by your attorney, the pretrial phases begin. These phases usually cover the following:
Complaint and answer phase – The Complaint is a document that explains in detail your allegations. It lays out how you were injured and the extent of your damages—broken arm, memory loss after head injury, loss of income, etc. Usually, this is filed in the county where your injury happened or where the party that damaged you resides.
Once filed, the Complaint is delivered to the defendant. The defendant has to answer the Complaint in a set period of time. The Answer is a document in which the defendant admits to or denies the allegations of the Complaint.
Discovery phase – The discovery phase is a formal process where both parties exchange information about the witnesses and evidence that will be presented at trial. The main purpose of this phase is to narrow the issues and let the parties know 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 many different motions, and it’s standard practice to file certain kinds of motions based on the type of case. Sometimes a hearing is held so the court can consider both sides of the arguments.
As the case proceeds, another possible step is called mediation. This is an attempt at 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 for each session.
If you attend mediation, both sides will present your case and work on settlement negotiations. These are facilitated by the mediator, with both parties plus their attorneys receiving an opportunity to contribute. Mediations are non-binding. Either party reserves the right to accept or reject the offer.
Conversely, both parties can move on to arbitration as an alternative dispute resolution. Sometimes the court may require that a case go to arbitration instead of actual court, because the judge believes a reasonable settlement is in reach. In other cases, arbitration is a voluntary decision of both parties to save both the expense of court costs.
In arbitration, there is also a hearing between the plaintiff and defendant, judged by a neutral party called an arbitrator. There is a big difference between arbitration and mediation: 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’s final.
If meditation fails and arbitration doesn’t happen, the case proceeds to trial. Then a jury can study 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
The first part of the trial is called voir dire, and this is when the jury members are chosen. Potential jurors are asked a series of questions so the lawyers and the judge can learn more about them. The questions are meant to reveal if the possible juror has any biases or prejudices that might keep them from being fair and impartial.
After a jury is selected, attorneys for the plaintiff and the defendant make opening statements. Your attorney will describe the accident or injury you suffered, as well as damages—pain and suffering, lost income when you couldn’t work, long-term disability or continuing problems, etc. They will also explain how they plan to prove this injury was the defendant’s fault.
The defendant’s attorney will then refute your claims, usually by claiming the defendant was somehow not at fault. Occasionally they may also claim your injuries aren’t that bad, or weren’t caused by the accident in question, if they think they have grounds to do so.
After opening statements, your lawyer will call various witnesses and experts to the stand to testify. Usually some sort of medical expert will testify about the injuries you received. They will go over your medical records, explain the type of injury, long-lasting effects, pain and suffering that may be involved, etc. Often the defendant’s attorney will ask them questions, with the goal of proving your injuries could have been caused by something other than the accident in question.
After this phase of the trial, the plaintiff’s and defendant’s lawyers will make closing statements reiterating their cases, then the jury will be given instructions. Afterward, they will deliberate and eventually reach a verdict.
Will I Have to Testify?
This is a question we’re asked a lot. The answer depends on the particulars of your situation, but in most cases, we recommend the plaintiff testify. Other witnesses or video evidence might show the jury how an accident happened. Medical bills and testimony from doctors or other experts can give them an idea of the scope of your injuries. But only you can describe how things happened from your point of view, and the pain, suffering, emotional distress, and other difficulties you’ve experienced as a result of your injuries.
Your lawyer will work to prepare you for your testimony. They will likely walk you through what they expect to be the cross-examination from the defendant’s attorney, as well. Personal injury lawyers spend a lot of time making sure their clients are aware of how the opposing attorney might try to confuse or frustrate them on the stand. We always try to advise clients on what to look out for, and how to stay on track. Sometimes we run through their testimony several times, until everyone is satisfied the client is well-prepared.
If you or a loved one was seriously injured in a motor vehicle accident, you do have rights and you need an advocate who is ready to protect those rights. Speak with an injury attorney today from the Law Offices of David M. Benenfeld, P.A.
We offer a free, no-obligation consultation. You can meet with an injury attorney now to discuss your case and see if you qualify for compensation. Call us now or request more information online.