The Phases of a Personal Injury Case

You just got into an accident, and now you want to know what the path ahead looks like. While every case is unique, there are a few common steps that that each personal injury case will follow. This post will briefly outline those steps so you know what you can expect.

Generally, the two phases of a personal injury case can be divided between the Pre-Litigation phase, which occurs before the formal filing of a lawsuit, and the Litigation phase, which occurs after a lawsuit is formally filed and served.

Pre-Litigation Phase

A personal injury case starts in pre-litigation, which just means that no formal lawsuit has been filed yet. A personal injury case can stay in the pre-litigation phase up until the statute of limitation expires. That statute of limitations can vary for each state jurisdiction and for each type of claim. For example, in Arkansas, the statute of limitations for a personal injury case resulting from a car accident is three years from the date of the accident. This means your claim would either have to be resolved or have moved into the Litigation Cycle by the aforementioned date.

Even though your case may not be in formal litigation there is still important work that is being done on it. The pre-litigation phase of a case is one of the most important phases for a Plaintiff (the injured party in a case) because it gives them time to properly develop their case before having to present it to a jury. Namely, it provides time for the plaintiff to get the medical treatment they need and it limits the chance for any unexpected complications to occur after a verdict has been received - such as a set back during treatment. It also gives the plaintiff adequate time to track down any witnesses to the accident and perform any investigations they need to do.

The other main process during the pre-litigation phase is negotiations with the at-fault's insurance. As soon as an accident occurs and you have hired representation, attorneys will typically send a letter of representation and notice to the at-fault driver's insurance company. This puts them on notice to not contact the plaintiff without their attorney present. Once treatment and investigation are completed, your attorney will next send a demand letter to the at-fault driver's insurance company. This demand letter and the subsequent negotiations serve a two-fold purpose. They work towards the settlement of the claim, and they help create documentation for any sort of bad-faith claim against the insurance company.

If, after negotiations, the personal injury claim has not been settled the next step is for your attorney to move your case into its Litigation phase which starts with the drafting of a formal complaint.

Litigation Phase

Once a formal complaint has been drafted by your attorney they will file it with the proper court and then serve the complaint and summons to each Defendant (the parties who injured the Plaintiff) in the case. At this point your personal injury case will have entered the litigation phase. There are generally four major milestones for a case in Litigation: Filing and Service of the Lawsuit, The Discovery Phase, Mediation, and Trial.

Filing and Service of the Lawsuit.

The first major milestone for a case is the filing of the complaint and then the service of the complaint and summons on the Defendant(s). Arkansas requires that these documents are served within 120 days after the filing of the complaint unless an extension is granted, otherwise the case may be dismissed without prejudice (without prejudice means the complaint can be refiled if the statute of limitations have not already lapsed). Once these documents are served the Defendant(s) will generally have 30 days after the service of summons to file their answer.

Discovery

The next milestone of a case in litigation is known as Discovery. Discovery is the time period during which each party exchanges information and conducts investigations into the other party in order to build their case. During Discovery the Parties to the case will exchange Interrogatories, Requests for Admission, and Requests for Production. In addition, Depositions will be conducted for all relevant witnesses.

Interrogatories are essentially just a list of written questions that are to be answered by the Parties in the case. This list of questions is generally limited, and each state sets a different limit to the number of questions that can be asked. In Arkansas, the number of interrogatories is not specifically limited by the rule, however, the court does have discretion to limit the use of any discovery technique.

Requests for Production work hand in hand with Interrogatories. While Interrogatories are written questions that request written answers, requests for production are when a party requests that certain documents be produced. These documents are limited to those which the other party has in their possession, custody or control. In addition, it may require the other party to enter upon designated land or property for the purpose of inspection. An example for a car accident case would be a request for any pictures of damage to the vehicle in the party's possession.

Request for Admission are a list of statements that are sent to the opposing party and require that they either admit or deny each statement. The party will then have 30 days after service to respond to each statement or they are deemed admitted. These are incredibly important because any matter that is admitted is deemed conclusively established as towards the pending action.

Finally, Depositions are oral interviews that take place under oath and are transcribed. The best way to describe a deposition is that it is similar to testifying live during trial. The witnesses being deposed will be asked questions by each parties' attorney, and those answers will be transcribed. Depositions are one of the most important aspects of litigation because it is the first and only chance before trial that each party will get to see how witnesses will present on the stand. This means a good deposition can quickly move an otherwise unsettleable case towards settlement or vice versa.

Mediation

The next important milestone in a case in litigation is Mediation. Mediation is akin to a final concerted effort to get a case settled before having to proceed to trial. Where as previously, each negotiation was done directly with the opposing party, mediation brings in a neutral third party to provide a different point of view.

Mediation can look different from case to case and from jurisdiction to jurisdiction. Some courts will require that the mediation is done in person, in which case the mediation will resemble the actual trial, oftentimes each parties' attorneys will present their case to each other in a show that demonstrates the strengths of their case. After, the mediator will separate the parties and discuss the case with one party before speaking with the other party and attempt to bring them to a mutually agreeable resolution.

Other courts do not require mediation to be done in person. In those cases, mediation is likely to be done by phone. This will follow the same steps as an in-person mediation just without the inclusion of the optional presentation of the case.

Though mediation is often viewed as the last effort to get a case resolved, often times there are negotiations that continue after mediation has concluded, usually prompted by a mediator's proposal for resolution.

Trial Phase

If the case is not resolved at mediation or any time after, eventually the set court date for the case will arrive. On that court date and over the next few days each side will pick out their jury, present witnesses, and present their case to the jury. Depending on the type of case and the implications, each party will likely be asked to take the stand before the jury. At the end of the trial, the jury will deliberate and decide how to apply the law given to them by the judge to the facts of the case. This is the natural end point for a case, resulting in a verdict either in favor of the plaintiff or defendant. In special circumstances a case's lifecycle might go further with appeals, but for most cases, the verdict at trial is the conclusion.

This article was just a generalized overview of each important milestone in a personal injury case from accident to verdict. However each case is different and there are nuances that could change any portion of this time line, and an experienced attorney will be able to walk you through your case's specific nuances and upcoming important events. If you have any questions about any of these general stages or want an experienced attorney to represent you in court, you can contact Tinger Law Firm by our website or by phone at (949) 402-4857.