Stages of Personal Injury Litigation

After photographing the accident scene and taking down the names of any witnesses, every personal injury defendant should tender the claim to their insurer. The insurer will usually then provide an attorney for the defense of the action or will reject coverage.
If the defendant does not have insurance coverage or if coverage is rejected, the defendant should hire an attorney to defend the action. After answering the complaint, the defense attorney should serve the plaintiffs attorney with interrogatories, requests for production, and sometimes requests for admissions. Interrogatories and requests for production are forms of discovery which allow the defense attorney to discover what the plaintiff knows and what relevant documents the plaintiff possesses.
For instance, in the typical personal injury case, the defense will receive medical authorizations from the plaintiff, a list of witnesses, and the plaintiffs version of events. The defense will then send in the authorizations to the plaintiffs past medical providers, workers comp agencies, and social security disability. If the case is an automobile accident case, the defense will also obtain a police report from the police department investigating the accident.
Upon reviewing the plaintiffs medical records and police report and upon telephoning witnesses, it is sometimes then possible to settle the case without the need of deposing the plaintiff, particularly if the claim is small, therefore not justifying the lawyers fees in attending a deposition. However, if the claim is large, if the plaintiffs medical records indicate that the injury could have been pre-existing, or if liability is in dispute, the defense will then have to depose the plaintiff and any other relevant witnesses.
I often serve a Rule 68 offer to the plaintiff at least a week prior to the deposition, unless liability is disputed. A Rule 68 offer allows the defense to offer a certain amount to settle the case and if the plaintiff does not accept, the plaintiff is then required to pay the defenses costs (including the costs of the deposition) if the plaintiff is not awarded a larger amount at trial. If during the course of the deposition, it becomes apparent that the Rule 68 offer was too low, the defense can always serve another, higher Rule 68 offer.
If liability is disputed, the defense should use the deposition as a source for quotes to be used in the upcoming motion for summary judgment. Summary judgment motions seem to have higher rates of success in dram shop actions (suits where a bar is being sued for allegedly serving alcohol to an obviously-intoxicated patron prior to an accident) and in slip and falls allegedly caused by failure to remove ice and snow. If the court grants summary judgment, the case comes to an end although these decisions are often appealed which in the end may lead to more attorneys fees than the case would have been worth if settled earlier.
If the court does not grant summary judgment, the personal injury case will then usually go to a mediator (usually an experienced personal injury attorney) who will attempt to get both parties to settle the case by arriving at a settlement figure between any offers and counteroffers. If settlement still does not occur, the parties will then have to prepare for trial by submitting to the court motions in limine (requests that the court keep out certain evidence or testimony), exhibit lists, witness lists, proposed jury instructions, etc. Even at this point, it should be remembered that over 90% of cases settle prior to trial. This is probably so, because once the case reaches the jury, there is no predictability as to what a given jury may do, particularly if the jury is allowed to consider punitive damages.
ABOUT THE AUTHOR: Kent B. Gravelle
Kent B. Gravelle is an associate attorney with Cundy & Martin, LLC.