Going to Court
- The Litigation Process
If we have to bring a lawsuit on your behalf because the case hasn’t settled, we will file a civil complaint against the person or persons responsible for your injuries. We must bring the lawsuit within two years from the date you were injured by filing in court a Complaint for Damages and a Summons. The person who brings the lawsuit is known as the plaintiff. The person(s) who is sued is called the defendant(s). These are the key steps in the litigation process.
- Filing and Serving a Complaint. Generally, the Summons and Complaint will be filed in the county where the accident or incident occurred, or the county in which the defendant resides, such as in San Francisco or other Bay Area county. Then, once filed, the Complaint for Damages and the Summons need to be served on the defendant(s). Once served, the defendant’s insurance company will hire an attorney who will file an Answer to your Complaint.
- The Discovery Phase. The next step is the discovery phase in which each side can inquire about the other’s case, by asking written questions, requesting documents, and/or asking oral questions under oath with a court reporter present and transcribing all questions and answers. This question and answer process is known as a deposition. Many times during discovery, the defendant’s insurance company will require you to see a doctor of their choosing for what is commonly known as an Independent Medical Examination (IME). The defendants attempt to use the IME to question the nature and extent of your claimed injuries. Discovery must be concluded 30 days before trial.
- The Arbitration Process. If the case does not settle during or after the discovery phase, it will commonly be assigned to arbitration, a process in which an attorney or retired judge hears the evidence and determines an arbitration award. If both sides accept this award, then the case ends with this settlement.
- Going to Trial. Either side can reject the arbitration award and request a jury trial. If either side requests a jury trial, the court will assign a trial date. Once a trial date is assigned you should regularly meet with your attorney to prepare your testimony for trial. Your attorney should also interview and/or reconnect with any witnesses, decide which witnesses to call, and serve subpoenas on these witnesses to appear in court.
- Medical Testimony. The testimony of witnesses is very important to prove your claim. Your medical professionals—generally known as experts--are especially important to support your claim by testifying in court that your injuries were caused by the defendant(s)’s negligent act. This proof of “causation” is crucial. Many times causation is obvious. Other times causation is difficult to prove.
- Other Expert Witness. Depending on the facts of your case, other experts may be necessary—such as accident reconstruction experts; biomechanical experts; housing construction experts; and others.
- Time of Trial. The time before your trial can be about a year or more, depending on the court calendar and complexity of your case. Most cases are supposed to get to trial within a year from the date the Summons and Complaint are filed, however this is not always the case due to budget cuts which have caused court delays.
- Concluding Your Case. If your case does proceed into litigation, be prepared to wait through the process, since litigating a case can be frustrating, time consuming, burdensome and confusing. Cases that raise an issue about the cause of an injury or the responsibility for negligence, such as was the defendant negligent or did the defendant’s negligence cause of the plaintiff’s injuries, are more difficult to resolve and may end up in front of a jury. If you have any questions about the process, ask your attorney.