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Overview Of Personal Injury Lawsuit Part V The Litigation Process

The  word “litigate” means “to make the subject of a lawsuit” or a “contest at law.” Once a complaint is filed by the plaintiff the litigation process begins and each party will, over the course of the next several months or years, attempt to build a case against the other party in order to force that party to either accept a settlement or take its chances at trial. The at-fault party (i.e., the “defendant”) will answer the complaint by the attorney hired by its insurance company. In answering the complaint, the insurance company lawyer will typically deny all allegations of the complaint regarding the liability of its client and include in the answer what are known as “affirmative defenses.” Typical affirmative defenses in a personal injury case are contributory negligence, assumption of risk and statute of limitations.
After answering the complaint or contemporaneous with answering, the defendant’s attorney will begin the “discovery” process by serving written questions called “interrogatories” to the plaintiff’s attorney and a “request for production of documents.” The written questions will include questions asking about the plaintiff’s past and present medical history, previous accidents or injuries and the plaintiff’s theory of liability against the defendant. The request to produce documents will typically seek medical records for the past ten years. Defense attorneys cast such a wide net for medical records in hopes that within those records is information about pre-existing medical conditions such as arthritis, previous injuries, or previous accidents that they can point to as the cause of the plaintiff’s present injuries and complaints. These medical records will then be turned over to a doctor in the insurance company’s well-paid stable of medical providers who will prepare a written report giving an “expert” opinion that the plaintiff’s injuries are indeed the result of the car accident or slip and fall accident your client had years earlier.
After plaintiff answers defendant’s interrogatories and responds to the request to produce the defense attorney will cull the answers and documents primarily to obtain the names and addresses of plaintiff’s past and present medical providers. Subpoenas for records will then be sent to these medical providers with the goal as mentioned above of uncovering some ailment, condition or injury (often so long ago that the plaintiff has forgotten about it) that the defense can point to as the cause of the plaintiff’s present problems.
After this “paper discovery” is conducted and sometimes while this discovery is on-going both sides will take depositions of the respective parties and any witnesses who might have knowledge of the facts of the case. In a case where the defendant admits he was fault for causing an accident his deposition is usually not necessary even where he contests the nature and extent of the plaintiff’s injuries. Other key depositions that will be taken will be that of the plaintiff’s treating doctor(s) and any doctors that may have treated the plaintiff for that “pre-existing” condition or injury that defense attorneys are hoping is mentioned in the medical records. Also, plaintiff’s attorney may take the deposition of the defense medical expert who has  been hired by the insurance company for the defendant.
Once all of the above discovery is conducted the parties will know how strong or weak their case is and whether the case should be settled or taken to trial. While there are procedural mechanisms such as “summary judgment”[1]  to get a case disposed of before trial few personal injury cases are ripe for summary judgment because they involve factual disputes that only a jury can resolve. Thus, assuming the case is not disposed of at summary judgment, the next step in a personal injury case is for the parties to attend mediation. This will be the subject of my next post.
[1] Summary judgment is a motion that gets filed where the moving party attempts to persuade the trial court that no “genuine issue of material fact” exists as to either liability, damages or both, and therefore, there is no need to have a
trial on one or both of these issues.