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The Litigation Process

After an accident, it may be overwhelming to think about filing a lawsuit on top of going through the recovery process. The legal system may seem filled with complicated rules and laws that leaves many mystified as to how it all works. However complex it may seem, the truth is that many cases follow the same general pattern: a lawsuit is filed, discovery is done, a trial is held, and a verdict is reached. During this process both sides are often also trying to negotiate a settlement in an attempt to resolve the case favorably without the need for a trial. This article will give you some insight into how a typical personal injury case might proceed.

Personal injury cases are cases that most often deal with negligence. Negligence is a legal term meaning failure to use reasonable care. This simply means that a person failed to act in a way that an ordinary prudent person would have under like or similar circumstances. Personal injury cases can take many forms. One of the most common types of cases we see at Gilman & Bedigian are cases involving car accidents.

Most adults enjoy driving privileges. But even the most experienced drivers can make a mistake. Everyone is expected to use reasonable care in the operation of a motor vehicle. The failure to do so results in accidents. The level of injury from an accident range from whiplash to catastrophic and life threatening injuries, even death. The legal system gives the injured party a method to recover compensation for their injuries by filing a civil suit.

Anna the Plaintiff

To show you, in general, the litigation process, we are going to tell about a hypothetical personal injury plaintiff named Anna.

Facts of the Case

Anna was driving down Main Street in Tortsville, heading home after a long day of work. She stopped at the intersection of 4th and Main at a red light. The light turned green and Anna accelerated to continue on her journey. At that moment, Joe, driving down 4th, ran the red light. Joe had seen that the light was yellow as he approached the intersection and accelerated because he thought he could make it before it changed. Unfortunately, he was too far back and the light turned red before he entered the intersection. Joe collided with Anna.

He hit her on the front passenger side causing her car to spin and end up facing the opposite direction. Joe’s car ended up on the shoulder just past the intersection on 4th. Anna was wearing her seat belt and the air bag deployed properly. The accident stopped all traffic in the intersection. Police and paramedics were called. Anna is taken to the hospital, where she stays for three days due to her injuries. When she is released she suffers from whiplash, a broken collar bone, and other injuries. She is out of work for two weeks and her car is totaled.

After some thought, Anna decides that she wants to hold Joe responsible for the car accident. After all, he made a reckless and dangerous choice in running a red light. Her injuries could have been much worse; she could have even been killed. After seeing their ad on television, Anna calls Gilman & Bedigian.

Initial Consultation and Evaluation

Gilman & Bedigian offers a free initial phone consultation in order evaluate a potential client’s case. When you call our firm at 1-800 529-6162, you will speak with a paralegal about your case. The paralegal will ask you about what happened, what your injuries are, if there were any witnesses, and various other pertinent questions. Once the paralegal has all the information they need, they will inform you of whether or not Gilman & Bedigian is able to move forward with your case, and if so, what the next steps are that you need to take. At Gilman & Bedigian we evaluate each and every case presented to us, so please don’t hesitate to call even if you are unsure whether or not you have a legal claim. We strive to help as many people as we can, provided we believe their cases have merit.

Anna calls Gilman & Bedigian at 1-800 529-6162 FREE FREE, taking up the firm on its offer for a free consultation. A paralegal, Penny, answers the phone, greets Anna, and begins the initial consultation. Anna tells Penny she called because she was in a car accident and wanted to see if she had a case. Anna then tells Penny all about her accident and injuries. Penny asks various questions about the accident, such as “Were there any witnesses?” and “Have you received any medical treatment?” Anna answers all the questions to the best of her ability. At the end of the consultation, Anna is told that she does seem to have a case and Penny asks her to come in to sign the client papers, including the contingency fee agreement. Once Anna signs the papers she if officially a client of the firm.

Demand Letter

Typically the first step in a personal injury case is to wait for the injured party to reach what is called maximum medical improvement (MMI). This means “[t]he point at which an injured person’s condition stabilizes, and no further recovery or improvement is expected, even with additional medical intervention.” Black’s Law Dictionary 1068 (9th ed. 2009). One of the reasons that attorneys do this is that right after an accident it can be difficult to measure the extent of the injuries incurred. By waiting until the plaintiff has fully recovered from his or her injuries, or recovered as much as is possible, an attorney can get a more accurate measurement of damages.

The next step is usually to send a demand letter to the defendant. A demand letter is a letter where “one party explains its legal position in a dispute and requests that the recipient take some action (such as paying money owed), or else risk being sued.” Black’s Law Dictionary 495 (9th Ed. 2009). The letter typically includes a description of the accident and any injuries that were incurred, any relevant exhibits, and a settlement amount. The demand letter opens the door to settlement negotiations between the two parties (often with the defendant’s insurance company.)

With any luck the case will settle at this stage. In Anna’s case, Anna (via her attorney at Gilman & Bedigian) sends Joe (or Joe’s insurance company) a letter requesting that Joe take responsibility for the accident and pay Anna what she is owed for her injuries, wrecked car, lost wages, and pain and suffering. Joe writes back, refuting his liability for the accident. He claims his brakes were malfunctioning, that he was trying to slow down but couldn’t, and only accelerated because he was trying to make it past the light and to the open field just past the intersection before he hurt someone. Anna’s attorney informs her of Joe’s response and Anna decides to take the next step in the litigation process and file a lawsuit: Anna the Plaintiff v. Joe the Defendant.

If, alternatively, Joe had accepted liability but had refuted the settlement amount, Anna may not have needed to file suit. The parties could have simply negotiated back and forth until an acceptable sum was reached. If an acceptable sum could not be reached, then a suit could have been filed at that point.

Filing A Case

Filing a complaint with the appropriate court is what officially begins a lawsuit. A complaint is a document that “states the basis for the court’s jurisdiction, the basis for the plaintiff’s claim, and the demand for relief.” Black’s Law Dictionary 323 (9th Ed. 2009). All civil cases over $10,000 are heard by the Pennsylvania Court of Common Pleas, so Anna files her case with that court. After the suit is filed and the defendant receives the complaint, a defendant has two options to respond. He can file an answer or a motion. An answer is a document where the defendant responds to the allegations in the complaint and raises any relevant affirmative defenses and counterclaims. A motion is “[a] written or oral application requesting a court to make a specified ruling or order.” Black’s Law Dictionary 1107 (9th ed. 2009). There are several reasons a defendant may file a motion at the outset of litigation. For example, if certain legal defenses are not raised prior to filing an answer to a complaint, those defenses will be waived. Pa.R.Civ.P. 1028(a)(1). Thus if a defendant decides to file a motion before responding, it is likely that he is raising one of these defenses. The court rules then rules on the motion and, depending on the ruling, the defendant then files an answer.

In Anna’s case, Joe’s attorneys decided to simply answer the complaint and didn’t raise any initial motions. The case moves forward into the discovery phase.


Discovery is the phase during the litigation process where each side builds their case by gathering evidence to support their position. The most common types of discovery are: requests for production, interrogatories, requests for admission, and depositions.

Interrogatories: Interrogatories are written questions one party sends to the other that requires a written response under oath. These are used to gather information from the other party regarding events, witness, documents, etc.

Requests for Production of Documents and Things: A party may request the opposite side to produce documents and other items relevant to the litigation at hand. Requested items could include things like medical records, photographs of the accident scene, emails, property damage estimates, etc.

Request for Admission: These requests are used to determine what issues in the case are in dispute. These admissions are under oath and are used to narrow the issues to be presented at trial. It is important to note that any admissions made are treated as a fact at trial.

Depositions: Depositions are sworn testimony taken outside of court. No judge is present; instead a court officer administers the oath, often a court reporter who is also present to make a deposition transcript. At depositions each side is allowed to question witnesses, parties, or nonparties directly prior to trial. If a lawyer objects to a question being asked of his client he may do so to preserve the objection for the record, but the witness must answer the question.

Discovery can be a long and drawn out process depending on the complexity of the case. One way things can get very complicated is if there are objections to certain discovery requests. For example, if the plaintiff requests the defendants produce a set of documents and the defendant objects that the request is too broad and the parties cannot resolve the dispute by themselves, the dispute would then go before a judge at a hearing. The judge would listen to arguments on both sides and then make a ruling about the discovery request.

Expert Witnesses

The use and disclosure of expert witnesses is another common part of the discovery process. An expert witness is a “person who, through education or experience, has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact-finder.” Black’s Law Dictionary 660 (9th ed. 2009).

Experts testimony is meant to assist the jury in understanding a potentially confusing topic. For example, a doctor may explain a plaintiff’s injuries or a car mechanic may explain how a car was malfunctioning. Experts testifying at trial must be disclosed to the opposing side. Pa.R.Civ.P. 4003.5. A report must also be disclosed that includes information such as the expert’s identity, the subject matter the expert will be testifying on, their opinions, and anything the witness relied on in forming those opinions. Id.

The Ongoing Negotiation and Settlement Process

Throughout the litigation process both parties are often making efforts to settle the case. It is advantageous to all parties to avoid trial, when possible. Some states have a pretrial requirement that the parties attend a settlement conference, arbitration, or mediation in an effort to reach an agreement and forego the need for a trial. For example, in the Philadelphia Court of Common Pleas, civil cases for $50,000 or less are required to go to arbitration before trial and there are mandatory settlement conferences in all major jury trials.

Settlement discussions don’t end just because a trial has begun. If at any point during the trial the parties reach an agreement, the trial will be ended and the jury dismissed. It is not uncommon for cases to settle the day before or the morning of the first day of trial. Public policy favors settlement, so even though a case has gotten to trial, if an agreement can be reached and further litigation avoid, the court will dismiss the case.

Anna was fairly lucky and the discovery process went smoothly, with few objections to each side’s discovery requests. However, the defense still refuses to settle for the amount that Anna is requesting. Joe the Defendant is still contending he couldn’t stop in time. Because the parties cannot agree on the point of liability or the monetary compensation due, the case proceeds to trial.

The Trial Process

Before oaths are given and witnesses questioned, a jury must be chosen. The process of voir dire is the “preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury.” Black’s Law Dictionary 1710 (9th Ed. 2009). If you have ever been called for jury duty, you have likely seen this process in action. The lawyers interview, one by one, the room full of prospective jurors. This is done to weed out anyone with a bias that could render that person incapable of giving an objective opinion in the case. Once voir dire is completed, the jury is empaneled and the trial begins.

Most trials follow the same format. First both parties give opening statements to the jury describing what the evidence they are going to present will show. The plaintiff then presents his or her case, using witnesses and relevant evidence showing how the defendant is liable for the plaintiff’s injuries. Next, the defense then presents their evidence refuting the plaintiff’s claims in order to show that the defendant is not liable for the plaintiff’s injuries. If needed, once the defense has put on their last witness, a plaintiff can then rebut some of the evidence presented by the defense and the defense may in turn do the same. This continues until both parties rest.

Once both sides have rested, closing arguments are then presented to the jury. The closing argument is the final statement each side makes to the jury where. The plaintiff and defense both persuasively argue that the evidence the jury has seen must lead them to a particular conclusion. The plaintiff argues the evidence shows the defendant is liable and the defendant argues that he or she is not liable . After closing arguments, the judge reads the jury instructions on the applicable law in the case. The jury then goes into deliberations. Once a unanimous decision is reached, the jury informs the bailiff they are ready. The jury’s verdict is then read to the court.

Occasionally, a trial is tried before a judge and not a jury in what is called a bench trial. The trial procedure is the same as that of a jury trial, except at the end of the presentation of evidence, the judge decides which side wins instead of a jury.

To prove his or her case, the plaintiff has a burden of proof. This is the standard by which the evidence must show the defendant’s liability. In a personal injury case, the burden of proof is a preponderance of the evidence. This means the party that presents the stronger evidence, “however slight the edge may be.”Black’s Law Dictionary 1301 (9th Ed. 2009). Looking at the evidence, if even a feather weight weighs in favor of one side, that side must win. If the plaintiff has proved their case by 51%, then the greater weight of evidence is in their favor, and they have met their burden of proof.

In Anna’s case, the jury found that the weight of evidence was in her favor and rendered a favorable verdict. Joe was unable to prove he was not fully liable for Anna’s injuries and the jury determined that Anna was owed a reasonable sum for her injuries.

Judgment and Payment

Once the jury has rendered its verdict, a judgment is entered by the court in favor of the prevailing party. This judgment is then enforceable by the prevailing party. Anna can now collect the amount owed to her from Joe (or more likely Joe’s insurance company). It is from this judgment amount that Anna pays her attorneys at Gilman & Bedigian for all the work they have done for her.


Sometimes a defendant disagrees with a judgment rendered by the court and files an appeal. When filing a case on appeal, the defendant, now called appellant, is asking a higher level court to review the proceedings of the trial court. In Pennsylvania, cases from the Court of Common Pleas are appealed to the Pennsylvania Superior Court. In order to file an appeal, you must have a final judgment rendered by the lower court. Appellate courts do not re-litigate the same case that just went through the trial court. Instead appellate courts review questions of law. Parties file briefs supporting their point of view on if the trial verdict should be upheld or not and argue those points before a panel of appellate judges. No witnesses or exhibits are presented at the appellate level, all facts are taken from the trial court record. Once the appellate court has read the briefs and heard the oral argument, the court will write an opinion rendering its decision. The court may, among other things, dismiss the case, sustain the trial court’s findings, overturn the lower court’s verdict, overturn the verdict and order a new trial, or clarify a point of law and remand for further proceedings. If a judgment is appealed, the plaintiff cannot collect on that judgment until all proceedings have been completed.

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