Overview Of Personal Injury Lawsuit Part Iv Filing The Lawsuit
When settlement negotiations with the at-fault party or their insurance company fail I file suit. This is no easy decision for me or the client. For the client, the contingency fee that they agreed to pay me at the outset of representation now increases from 33 1/3% to 40% anytime after the at-fault party answers the Complaint. For me, the contingency fee contract mandates that (unless otherwise agreed upon) my firm must now pay all the costs of litigation which can in some cases exceed $10,000.00. The fees to file the lawsuit are approximately $450.00. Thereafter, my firm pays for all medical records charges, deposition and court reporter fees, mediation fees, process server fees and expert witness fees. The doctors who treated my client for the subject injuries will charge between $3000.00-$5000.00 just to come to trial to testify as to their care and treatment of the client. The doctors justify these charges by saying that they have to shut down their medical practice for half a day. While many of these litigation costs are paid for by the at-fault party if the lawsuit is won, one can imagine the amount of money that a law firm with a busy personal injury practice has “on the street” waiting to be reimbursed.
Once the lawsuit is filed a summons and complaint gets “served” on the at-fault party by a process server.
By statute, service is effected by leaving copies of the summons and complaint at the at-fault party’s “usual place of abode” with any person residing therein who is 15 years of age or older and informing the person of their contents. The summons is a document issued by the clerk’s office putting the at-fault party on notice that they are being sued. The complaint is the document in numbered paragraphs setting forth the reasons why the at-fault party is being sued. The process server can be the sheriff of the county where the person to be served resides or a certified process server.
Except in the rare case where the at-fault party agrees to waive service of process – in which case they get 60 days to respond to the allegations in the complaint – the summons served on the at-fault party advises them that they have 20 days to serve (i.e., mail) written defenses to the complaint. If they fail to do so a default may be entered by the clerk which means that the at-fault party is deemed to have admitted to the allegations of the complaint. In most personal injury suits that are filed, however, the at-fault party has insurance and the insurance company for the at-fault party will hire an attorney to represent that party. That attorney will timely file an answer to the complaint within 20 days and litigation is then underway in the lawsuit.
In my next post I will discuss the litigation process.