Badger Lawyer's Personal Injury Case Procedures

Personal injury cases follow a set order. A brief explanation of each step in the process is discussed below. While the order presented below is typical, it is not set in stone, and some of the steps can occur out of order.

Check these topics for more information:

Before You File
Pleadings
Discovery
Summary Judgment
Negotiations
Trial
Appeal

Before You File

Once you file a case, certain deadlines are set in motion. So, it is sometimes beneficial to get a few ducks in a row prior to filing your complaint. Collecting any documents you might need, such as medical records is beneficial. If there are going to be witnesses, getting their contact information and speaking to them ahead of time, making notes of what they would testify about, could also help. Getting all of your paperwork organized and your case ready to go is also helpful. Once you have your case organized, it is time to proceed with the pleadings.

Pleadings

The pleadings phase of the case, is the first phase, and represents the beginning of the action.

Complaint
The Complaint is a legal document which outlines your claim against the Defendants. In the Complaint you become known as the Plaintiff, and the people you are suing the Defendants. A Complaint must be a short, concise statement of the injuries suffered and the relief sought. A complaint should make allegations establishing the court's jurisdiction over the matter and identify the parties involved. Finally, the various causes of action you allege should be outlined. The basic order of a complaint goes like this:

Parties

Jurisdiction

Facts

Causes of action

Relief

Typically the Complaint is written in the form of numbered paragraphs.

Include a separate numbered paragraph for each party in the lawsuit. A party is an involved person, including yourself, and the Defendants. Typically you identify the parties by their name and address.

The jurisdictional statement is usually as simple as explaining that the facts of the case occurred in the county of the court where you have filed the complaint.

The factual section of the complaint contains as many numbered paragraphs as is necessary to explain in detail how each defendant committed specific acts which taken together establish all the facts necessary for each cause of action alleged. See motion to dismiss below for more discussion about how many facts are necessary to be sufficient. BLUE underline motion to dismiss. While you don't want to add unnecessary facts, as a general rule, it is better to add facts than leave them out if you are not sure.

The cause of action section of a complaint names the elements of each cause of action, and explains very briefly that the conduct of the Defendants establish an action. Make sure to allege each element. A typical allegation of negligence, for example, might look like this:

Defendant John Doe had a duty to drive his vehicle with due care and observing the road ahead.

Defendant John Doe breached that duty when he ran the stop sign.

Defendant John Doe caused Plaintiffs harm in the collision which resulted from running the stop sign.

Plaintiff was physically and emotionally damaged by John Doe's breach of duty.

Finally, in the relief sought section, you should list what you are hoping to have the Judge do for you in the event that you prevail at trial. You are not required (in fact you are highly discouraged) from listing a specific dollar amount. Rather, you should list that you are seeking damages in an amount to be proven at trial, and any other relief you believe is appropriate, such as attorney's fees, punitive damages, injunctive relief, and any such other relief as the Court deems appropriate.
Answer
The Answer is a pleading which responds to the Complaint. Going paragraph by paragraph, the Defendant will either admit, deny, or allege he has insufficient facts to do either. If a Plaintiff admits a paragraph in your Complaint, that matter is taken as true for the remainder of the case. If the Defendant denies an allegation, it will be up to you to prove the truth of the allegation at trial. If the Defendant claims to have insufficient information to either admit or deny, that response is taken as the same as a denial.

Motion To Dismiss
The Motion to Dismiss occurring early in a case is usually aimed at technical defects in your Complaint. While there are a number of different possible motions to dismiss, the main one you are likely to see is a motion to dismiss based on a claim that your Complaint fails to state a claim upon which relief can be granted. The basic language you will see against you in a motion to dismiss will be a claim by the Defendant that even if everything in your Complaint is taken as true, the law would not authorize any relief for you. So, if you allege in your Complaint all of the facts relating to a car accident, but you choose defamation as your cause of action, you're going to get a motion to dismiss, because even if all of the facts of your car accident are true, a car accident doesn't usually result in a defamation. You can't recover for defamation on the facts of a car accident. You might also receive a motion to dismiss if you did not properly plead all of the elements of a cause of action, or if there are some other technical defects with your Complaint. The bad news is that if the Judge agrees, your Complaint will be dismissed. The good news is that the law highly urges Judges to give Plaintiffs an opportunity to amend their Complaint and fix whatever it is that was incorrect in the first place. One exception would be a motion to dismiss based on a violation of the statute of limitations.

Discovery

After the pleadings phase of a case is completed, the discovery phase begins. Discovery is the legal term for finding out about each other's case. This is the part of the case where you get to do investigation, and force Defendants to provide information they may have which they might wish to keep secret. Most discovery is conducted in writing, except for depositions. The four primary types of discovery are discussed below.

Interrogatories
Interrogatories are written questions you send to the Defendants which they are required to answer. Interrogatories are like essay questions you might have gotten in school. In a traffic accident case you might ask a Defendant to list each time he has been in an accident or cited for an accident, or a traffic violation, and to provide details about each of those times. There is no limit on the kind of questions you can ask, except that the questions have to be reasonably calculated to lead to the discovery of evidence that would be admissible in trial. So, as long as the questions are remotely on topic, you can ask away.
Requests For Production
Requests for production are demands that the Defendants produce documents they have in their possession. You might seek medical records, insurance policies, accident photos, recorded statements given to insurance companies, or any other document that the other side has, or which you suspect they have.
Requests For Admission
Requests for Admission are like true/false questions. You ask the Defendant to either admit or deny the truth of the statement that you provide. In an auto accident, you might ask the Defendant to admit that he ran a stop sign, or admit that he caused a crash. Requests for Admission are designed to simplify the case by getting the other party to admit those facts about which there is no disagreement. In practice, parties try very try not to make any admissions if they don't have to.
Depositions

The kind of all discovery is depositions. The deposition is an opportunity to sit down one-on-one with the Defendant and question him over the course of several hours about anything and everything to do with the case. Unlike written discovery, the lawyers involved don't have an opportunity to spend 40 days formulating the most unhelpful answer they can think of. Instead, the Defendant is on the spot and must answer the questions immediately as posed. This interview is taken down word for word by a court reporter, and the witness is under oath. Everything said at the deposition can be introduced at trial, unless specifically objectionable.

Summary Judgment

The next phase of the case is typically a summary judgment phase. Summary judgment is an opportunity to ask the Court to rule on a major portion or all of the case. Typically, it is the Defendant bringing a motion for summary judgment seeking to have the case dismissed. Summary judgment motions are based on all of the facts learned through discovery. The basic standard for a summary judgment motion is a claim that a party is entitled to relief based on the absence of any issue of material fact with respect to a certain issue or cause of action. Translated into English, this means that if you consider only those facts that have proven to be undisputed by both Plaintiff and Defendant, Defendant is entitled to win.

In the typical summary judgment, the Defendant files a motion seeking that the Court dismiss the case against them. The Defendant will allege that the facts proven in discovery prove undisputedly that the Defendant would win if the case were to go to trial, and that it would be unfair and unnecessary to force the Defendant to go to the trouble of having the trial. Thus, the Defendant would be entitled to summary judgment.

To defeat a motion for summary judgment, the Plaintiff need only demonstrate that there is a dispute as to a material fact. In other words, if there is any basis upon which a jury could decide for the Plaintiff, the Court is going to deny the motion for summary judgment and let the case go to trial. Our constitutions prefer cases to be resolved by a jury, rather than a Judge.

Negotiations

Once a case has passed the summary judgment phase, the only thing left is trial. By this point in the case, the Defendants have tried every defense they can think of, from beating the case in discovery, to motions to dismiss, to discovery judgment. Every technicality has been tried, and every effort at chipping away at the Plaintiff's case has been made. At this point, it is possible for the Defendant and the Plaintiff to sit down and really determine what the settlement value of the case is. Usually at this point in the case, the parties will sit down and enter a phase of negotiations where they try to resolve the case without going to trial. Negotiations can involve informal discussions among the parties, or the parties can decide to hire a mediator, who is a professional attorney with experience at helping parties come to a settlement. If the case settles, it's over. If it doesn't, then trial will commence.

Trial

Trial almost never happens. By the time a case has gone through motions to dismiss, discovery, and summary judgment, it is abundantly clear to both parties whether their case has value, and if it does, settlement is most like the outcome. Cases typically only go to trial where one party is unreasonable about the expectation for the outcome, usually a Plaintiff wanting to receive much more compensation than the case is worth, or when the defense believes that they can get a verdict in their favor. (A “defense verdict” is one where there is no liability or no damages found.)

Regardless of the reason, the trial is the big show. Personal injury trial is an opportunity for the Plaintiff to try to prove that the Defendant caused damages through negligent conduct or other wrongful, intentional conduct. The Plaintiff also much prove harm caused by the conduct.

The trial starts with jury selection. Both sides get an opportunity to question a number of randomly chosen individuals from the local community. After a selection process, the jury is seated. They will listen to the entire case and be the ultimate deciders.

The case begins with an opening statement, in which each side tells the jury what they believe the facts of the case will be. Then the Plaintiff must present his or her case. The Plaintiff does this by calling witnesses to testify about what happened in the accident, and the damages incurred. The Plaintiff should focus on proving the facts in his complaint and emphasizing the degree of his damages. After the Plaintiff rests, the Defendant has a turn. The Defendant will take the opportunity to try and disprove any facts that may be critical and try to show that Plaintiff's damages were limited or non-existent. After each side has an opportunity for rebuttal, the case proceeds to closing argument where each party has the opportunity to present a statement to the jury about what they believe the evidence showed in the case and why the jury should find in their favor. The jury then deliberates and determines who is at fault and what the damages were.

Appeal

After trial, the party that loses is entitled to an appeal. Another good reason to settle a case before trial is that even if you win at trial, your case could be tied up for years in the appellate courts by the Defendant. Likewise, if you lose, you can take appeal and try to get your loss overturned. Winning on appeal can mean one of two things: either you get to come back and have another trial, or the appeals court will issue instructions to change the amount of your award.