Litigation of Personal Injury Cases

Litigation of any case can be a slow and very expensive process. You have probably heard that the "wheels of justice grind slowly"; and that can be an understatement. While the vast majority of personal injury lawsuits are settled out of court, many are not. It can be said with a certainty that a great settlement is no accident. Great settlements take hard work by a competent personal injury attorney. Negotiated settlements can also be reached even after a trial begins if the other party makes an offer to settle during a trial. In a court of law, the job of the Plaintiff's Attorney is to prove that the Defendant is liable and must also prove what the damages are and the extent of the damages. If liability (responsibility) is established, the Plaintiff is entitled to full compensation for his/her losses. These are "damages", and damages can include compensation for medical expenses, lost wages, pain and suffering, and future lost earnings.

Litigation of Personal Injury Cases

There are options to consider before litigating. There are also Alternatives to Dispute Resolution.

Depositions

In all forms of litigation, including personal injury litigation, there is a period which Attorneys refer to as "Discovery". Discovery is a time in which lawyers use a variety of methods to get information and evidence from the other side. This is typically done through interrogatories (written questions which are answered in writing under oath); requests for production of documents (written requests for production of certain documents); depositions (an oral examination of a party or witness where answers are provided under oath); requests for admission (written requests that a party admit certain items to narrow the issues in the case).

Most states allow for oral examinations of a party or a witness. These proceedings are typically conducted in a law office, have the same effect as giving testimony in court before a jury. At the deposition, a certified court reporter is present to stenographically record each question and the answer given, as well as objections made by the Attorneys. The witness is formally sworn to tell the truth and must testify under penalty of perjury. A verbatim transcript of the proceeding is made by the court reporter, and can be used at trial for several different purposes. An Attorney needs to properly prepare a client or witness for a deposition. Once the proceeding is over, the court reporter makes a booklet of the transcript, and attests that the transcript is a true and correct copy of the proceedings. Depositions can last an hour, and in large cases, such as construction defect litigation, depositions can go on from day to day until completed.Most states allow for oral examinations of a party or a witness. These proceedings are typically conducted in a law office, have the same effect as giving testimony in court before a jury. At the deposition, a certified court reporter is present to stenographically record each question and the answer given, as well as objections made by the Attorneys. The witness is formally sworn to tell the truth and must testify under penalty of perjury. A verbatim transcript of the proceeding is made by the court reporter, and can be used at trial for several different purposes. An Attorney needs to properly prepare a client or witness for a deposition. Once the proceeding is over, the court reporter makes a booklet of the transcript, and attests that the transcript is a true and correct copy of the proceedings. Depositions can last an hour, and in large cases, such as construction defect litigation, depositions can go on from day to day until completed.

Interrogatories

The interrogatory is a form of written discovery. Unlike the deposition, which is oral testimony, interrogatories are written questions. These are sent to the opposing party through the Attorney and interrogatories require written responses, sworn to under penalty of perjury. Sometimes written discovery calls for the responding party to admit or deny a fact at issue in the litigation. These are called requests for admission, and are used to narrow the issues in litigation. Interrogatories and requests to admit can also be used for a variety of reasons in a later proceeding, such as the trial, arbitration, or mediation.

Alternative Dispute Resolution

Most states allow litigants the option to arbitrate, mediate or negotiate their case prior to an actual trial in court. Mediation, arbitration and negotiation are called "Alternative Dispute Resolution" techniques, as they are used as an alternative to a trial. Courts today encourage alternative forms of dispute resolution because of the backlog in the judicial system. A good Attorney will consider all methods available to resolve the dispute, including mediation, arbitration or negotiation. This is because, as any experienced trial lawyer will say, one never knows what a jury will do at trial.

Discovery can proceed under any method, so interrogatories, depositions, and the like can still be effectively used. The Alternative Dispute Resolution process can differ from case to case depending on the individual arbitrator or mediator. Arbitrations are adversarial proceedings which can be non-binding or binding (the decision is final and trial is waived) based on the agreement of the parties. Arbitration generally includes testimony by parties and witnesses while mediation and negotiation does not. When compared to a trial, especially a jury trial, any method of alternative dispute resolution is going to obtain a faster and much less expensive means of finalizing litigation.

Call The LoBello Law Office, and speak to attorney Mark A. LoBello, an experienced personal injury litigator, whether your case can be considered for arbitration, mediation, negotiation or trial. Call 702.870.8000 or send an email.

Trial

Trial - the word conjures up images of O.J. Simpson, and other high profile civil and criminal proceedings. While every trial is unique and extraordinarily different in the way it proceeds, the facts, witnesses, and evidence presented, the most important characteristic of trial work is being able to be "fluid"; to deal with anything on the spur of the moment.

Any personal injury lawyer who takes a case to trial needs to be very well prepared. Preparation of a personal injury case for trial can take weeks or months. The attorney needs to know every aspect of the case better than the parties do, and a jury relies on the attorneys to tell them what the case is about. Relevant legal issues must be researched; motions must be drafted and argued before the judge and witnesses prepared. The trial testimony of the parties and witnesses must be gone over, so there are no surprises. A good personal injury lawyer will anticipate even the proposed testimony of the other party and their witnesses. There is generally a need for expert witness testimony from both the Plaintiff and Defense. So the attorneys must know what doctors, physical therapists, biomechanical witnesses, to name just a few, are going to say. Often, an attorney will research and read articles written by an opposing expert over the last few years in order to become familiar with his/her opinions. So, an attorney must develop expertise in several different fields of medicine, engineering, and other fields. The attorney must become conversant with all of the medical and other terminology in order to know what the experts are testifying to at trial.

While a full discussion of a jury trial is beyond the scope of this website, a trial generally begins with an opening statement by each of the Lawyers. After opening statements, the Plaintiff puts on his "case in chief". In a "case in chief", the attorney putting on his case at the time will generally call the parties, witnesses, and experts to testify and to present testimony on all of the factual and damage issues. After the Plaintiff "rests", the Defendant puts on the defense "case in chief", presenting testimony of parties, witnesses, and experts, if necessary. After the Defendant "rests", the Plaintiff may put on a rebuttal case if warranted.

Once both parties have completed the presentation of their case, thought the direct and cross examination of parties and witnesses, the Court generally allows "closing arguments" to the jury. The Plaintiff's attorney will go first, followed by the Defendant's attorney. The Plaintiff's attorney will then have the last word. Closing arguments are followed by the judge's reading of Jury Instructions to the jury. Jury instructions are drafted by each party, and submitted to the judge before the trial begins. The language of the instructions may be argued by the attorneys, and a final set of jury instructions, decided upon by the judge, will be read to the jury at the conclusion of the trial. After the jury has been instructed, they will retire to deliberate their verdict. Jury deliberations can take hours or days. Once the jury reached a decision or verdict, the parties and attorneys are summoned back to the Court room to have the verdict read by the judge or jury foreperson.

Prior to a trial, an attorney may appear relaxed with a casual demeanor. However, during trials lawyers usually become focused and determined advocates. However, even with months of preparation in some cases, trials can be entirely unpredictable. Experienced lawyers warn clients that with a jury, anything is possible. There can be no guarantees of winning. Witnesses sometimes back out, judges sometimes make bad rulings, and juries are often biased. An experienced lawyer can discuss all of your options so the decision to proceed to trial with your case is an informed one.

e-mail: mlobello@lobellolaw.com

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