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The Litigation Process
In the aftermath of an accident or injury, it may seem overwhelming to file a lawsuit as well as go through recovery. The legal system can seem complex, confusing, and intimidating due to the numerous laws and procedural rules. The truth is that many cases follow the same general pattern: a lawsuit is filed in court, discovery is done by both parties, a trial is held where the plaintiff and defendant argue their case, and a verdict is reached. During the litigation process both sides are typically also in settlement negotiations, in an attempt to resolve the case favorably for all parties involved.
Personal injury cases usually involve negligence on the part of the defendant. Negligence means the failure to use reasonable care. That is, the defendant failed to act in a way that an ordinary prudent person would have under the same or similar circumstances. Personal injury cases can take many forms from simply fender benders to complex medical malpractice cases involving multinational corporations. One of the more common cases we see at Gilman & Bedigian are cases involving car accidents. This article will give you some insight into how a typical personal injury case might proceed in the District of Columbia.
Lucy the Plaintiff
Most adults enjoy driving privileges. However, even an experienced drivers can make a mistake. Everyone is expected to use reasonable care while operating a motor vehicle and the failure to do so can result in an accident. The level of injury from an accident can vary widely, ranging from whiplash to catastrophic and life threatening injuries, even death. The legal system provides an injured party a way to recover compensation (also called damages) from the party responsible for their injuries by filing a lawsuit in civil court.
Facts of the Case
Let’s say a woman named Lucy was driving down 2nd Street in Tortsville, heading home after a running some errands. She stopped at a red light at the intersection of Broadway and 2nd. The light turned green and Lucy accelerated through the intersection. At that moment, Max, driving down 4th, ran the red light. Max 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. Max collided with Lucy.
Max hit Lucy on the front passenger side of her car causing her to spin and end up facing the opposite direction. Max’s car ended up on the shoulder just past the intersection on Broadway. Lucy was wearing her seat belt and the air bag deployed properly. The accident stopped all traffic in the intersection. Police and paramedics were called. Lucy is then taken to the hospital, where she stays for five 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 three weeks and her car is totaled.
After some thought, Lucy decides that she wants to hold Max responsible for the car accident and recover compensation for her injuries and the damage to her car. After all, he made a reckless and dangerous choice when he ran the red light. She knows her injuries could have been much worse; she could have even been killed. After seeing their ad on television, Lucy calls Gilman & Bedigian.
Initial Consultation and Evaluation
The law firm of 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 FREE, you will speak with a paralegal about your case who will ask you about what happened, what your injuries are, if there were any witnesses, and various other pertinent questions. Once our 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 you need to take are. 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.
Lucy calls Gilman & Bedigian, taking up the firm on its offer for a free phone consultation. Mark the Paralegal, answers the phone, greets Lucy, and begins the initial consultation. Lucy tells Marks she called because she was in a car accident and wanted to see if she had a case. Lucy then tells Mark all about her accident and injuries. Mark asks various questions about the accident, such as “Were there any witnesses?” and “Have you received any medical treatment?” Lucy answers all of the questions to the best of her ability. At the end of the consultation, Lucy is told that she does seem to have a case and Mark asks her to come in to sign the client papers, including the contingency fee agreement. Once Lucy signs the papers she if officially a client of the firm.
The first step in a typical personal injury case is to wait for the injured party to reach maximum medical improvement (MMI). MMI is “[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 an attorney will wait to discuss compensation is that right after the accident is because it can be difficult to get the full measure of the injuries incurred. Waiting for the plaintiff to fully recover from his or her injuries, or recover as much as is possible, allows for a more accurate measure of the damages they are owed.
The next step in a lawsuit is typically to send a demand letter to the party or parties responsible for your injuries. A demand letter is a letter “which 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). It typically includes a description of the accident and any injuries that were incurred, any relevant exhibits, and a settlement amount. This letter opens the door to settlement negotiations between the parties (often with the defendant’s insurance company.)
In Lucy’s case, Lucy (via her attorney at Gilman & Bedigian) sends Max (or Max’s insurance company) a letter requesting that Max take responsibility for the accident and pay Lucy what she is owed for her injuries, wrecked car, medical expenses, lost wages, and pain and suffering. Max writes back claiming he was not liable for the accident. He claims his brakes were not working, that he couldn’t slow down, and only accelerated through the intersection because he was trying to make it past the light and to the open field just past the intersection before he hurt someone. Lucy’s attorney informs her of Max’s response and Lucy decides to file a lawsuit in the proper court: Lucy the Plaintiff v. Max the Defendant.
If, alternatively, Max had accepted liability for the accident but had refuted the settlement amount Lucy proposed, she may not have needed to file a lawsuit. In that case, the two parties would have simply negotiated back and forth until an acceptable sum was reached. However, if an acceptable sum could not be reached, then Lucy could file a lawsuit at that point.
Filing A Case
Filing a complaint with the appropriate court 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 $5000 are heard by the Superior Court of the District of Columbia, so Lucy files her case with that court.
After the suit has been filed and the defendant has received the complaint, a defendant has two different options on how to respond. He can either file an answer or a motion. An answer the defendant’s response to the allegations in the complaint and in the document he or she can raise any relevant affirmative defense and include any counterclaims. A motion is “[a] written or oral application requesting a court to make a specified ruling or order.” Black’s Law Dic. 1107 (9th Ed. 2009). A defendant may file a motion at the outset of litigation instead of an answer for several reasons. For example, certain legal defenses have to be raised prior to filing an answer to a complaint. If those defenses are not raised, they will be waived. Super Ct. Civ. R. 12(h)(1). So if a defendant decides to file a motion first, he or she may be raising one of these defenses. A hearing is held, the court rules on the motion, and – depending on the ruling – the defendant will then file an answer.
In Lucy’s case, Max’s attorney decides to simply answer the complaint and didn’t raise any initial motions. The case then moves forward to the discovery phase of litigation.
Discovery is the period of time during the litigation process where each side builds their case by gathering evidence to support their argument. Interrogatories, requests for production, requests for admissions, and depositions are all common types of discovery.
Interrogatories: Interrogatories are written questions that one party sends to the other which requires a written response under oath. These documents are used to gather information from the other party regarding events, witness, relevant documents, etc.
Requests for Production of Documents and Things: Under the District of Columbia Rules of Civil Procedure Rule 34, 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 actually in dispute, that is, what issues need to be addressed at trial. These admissions are made under oath and are used to narrow the issues to be presented at trial. It is important to note that any admissions made by either side are treated as a fact at trial.
Depositions: Depositions are sworn testimony taken outside of court. A court officer administers the oath, often it is the court reporter who is also there to make a deposition transcript. At depositions each side questions witnesses, parties, or nonparties directly prior to trial. If a lawyer objects to a question being asked of his client in a deposition, he may do so to preserve the objection for the record, but the witness still must answer the question.
The length of discovery depends on the complexity of the case. One way a discovery gets real complicated and drawn out is if a party objects to certain discovery requests. For example, if Lucy requests that Max produce a set of documents and he objects that the request is overly broad and the parties cannot resolve the dispute on their own, then they would go before a judge at a hearing. The judge rules on the appropriateness of the discovery request and the parties then comply with that ruling.
Another common part of the discovery process is the use and disclosure of expert witnesses. 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 designed to help the jury in understanding any potentially confusing or complex topics. 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. Super Ct. Civ. R. 26. An expert report must also be disclosed. This report includes information such as the expert’s qualifications, their opinions, and anything the witness relied on in forming those opinions, a list of any publications the expert has written, a list of other cases where the witness testified as an expert, and any compensation the expert is getting for testifying. Id.
The Ongoing Negotiation and Settlement Process
Throughout the litigation process both of the parties are often still making an effort to settle the case. It is beneficial to all parties to avoid trial, when possible. Some states have a even 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. In most cases in the District of Columbia, mediation is mandatory prior to trial.
In addition, settlement discussions don’t end when the trial begins. 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 is in favor settlement, so if an agreement can be reached and further litigation avoided, the court will dismiss the case.
Lucy 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 Lucy is requesting. Max 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
At the outset of the trial, a jury must be chosen. The process of choosing a jury is called voir dire. This 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 or the judge interviews the prospective jurors one by one. Interviews are conducted to weed out anyone with a bias that could render that person incapable of giving an impartial decision in the case. Once voir dire is completed, the jury is empaneled and the trial commences.
First both parties will give opening statements describing what the evidence they are going to present will show. The plaintiff then present his or her case, putting on witnesses and submitting relevant evidence showing that the defendant is liable and what the plaintiff’s damages are. The defendant then presents his or her own evidence refuting the plaintiff’s claims in order to support their position that the defendant is not liable for plaintiff’s injuries. If needed, once the defense has put on their last witness, a plaintiff can submit evidence to disprove something presented by the defense. The defense may in turn do the same. These rebuttals continue until both sides rest. Then each party presents its closing argument to the jury.
The closing argument is a final statement where each side argues that the evidence they have presented to the jury must lead the jury to a particular conclusion. The plaintiff will argue the evidence shows the defendant is liable and the defendant will argue the opposite. Once closing arguments are completed, the judge reads the jury instructions on the applicable law in the case. The jury deliberates and decides the fate of the parties involved. After a unanimous decision is reached, the jury informs the bailiff they are ready. Court is reconvened and the verdict is read to the court.
Occasionally, a trial is tried before a judge as opposed to a jury. This is type of trial is called a bench trial. The trial procedure is the same as a jury trial, except the judge is also deciding who should win the case in addition to resolving objections during trial.
In order to prove their case a plaintiff must meet a burden of proof which is the standard by which the evidence must show the defendant’s liability. In most personal injury cases, 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) will prevail. Therefore, when looking at the evidence, if even a feather weight weighs in favor of one side, that side must win. Thus, if the plaintiff has proved her case by 51%, then the greater weight of evidence is in her favor, and she has met her burden of proof.
In Lucy’s case, the jury found that the weight of evidence was in her favor and rendered a favorable verdict. Max was unable to present sufficient evidence that he was not fully liable for Lucy’s injuries and the jury determined that Lucy 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. Lucy can now collect the amount owed to her from Max (or more likely Max’s insurance company). It is from this judgment amount that Lucy 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 trial court and files an appeal. An appeal is where the defendant, now called appellant, is asking a higher level court to review the proceedings of the trial court. In the District of Columbia, cases from the Superior Court are appealed to the District of Columbia Court of Appeals. In order to file an appeal, you must first have a final judgment rendered by the lower court. Appellate courts do not re-litigate the case, instead appellate courts review questions of law. Both parties file briefs supporting their point of view that the trial verdict should be upheld or reversed and argue those points before a panel of appellate judges. Witnesses or exhibits are not presented at the appellate level, instead all facts are taken from the trial court record. Once the appellate court has read the briefs and heard the oral arguments, the court will write an opinion rendering its decision.
The appellate 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.