Even though most claims are resolved before a lawsuit is formally filed, there are some cases in which insurers simply refuse to settle a claim for a fair amount. The extent of your injuries, the type of accident you had, the amount of insurance coverage available, who was at fault, the nature of the at-fault behavior and the difficulty of proving that fault are all factors that could prevent you from reaching a fair settlement with the insurance company without filing a lawsuit. If you are unable reach a fair settlement, your lawyer will probably recommend filing a lawsuit. However, even if a lawsuit is filed, your lawyer will almost certainly continue trying to settle your case before the trial.
Litigation Process Guide
When Do You File Your Lawsuit?
Filing a Lawsuit
Who Answers the Complaint?
Your Medical Records Are essential in Discovery
Requests for Admissions
The Importance of Being Earnest During Discovery
Requests for Production
Discovery and Settlement
When Do You File Your Lawsuit?
The law of Idaho sets deadlines by which you must file your lawsuit. These are called statutes of limitations. The basic one in Idaho is 2-years from the date of injury. But it is not that simple, children have different limitations. If a governmental entity is involved there is a different, shorter, limitation. If the case has to do with medical negligence there are other special procedures that you need to do before you file suit. Statutes of limitations are different in each state and, like Idaho, often change according to the type of case you have, but all of them are hard deadlines. That is, if you wait too long, you will not be able to pursue your case, no matter how strong it is. One of the first things your lawyer will do after learning about your case is calculate the statute of limitations that applies, and take the action necessary to preserve your right to bring your claim.
There are also legal deadlines that apply in certain specific circumstances. For example, if you plan to sue a government agency, you are required to give that agency notice within 180 days of the occurrence, or file an administrative complaint, before you may sue. If the U.S. Government is involved the rules are modified. Some deadlines can be as short as 30 days. , Because missing them can take away your right to sue, it is essential to learn about them and take action as quickly as possible. This is one reason why personal injury lawyers prefer to see you as soon as is practical after you are hurt.
Filing a Lawsuit
Your lawyer's office should take care of the actual, formal filing of the lawsuit. But in general, you will file your case in the county where the person who caused your collision lives, though that may change depending on the circumstances. Again the rules sometimes have exceptions or requirements that apply differently in different situations. The county where the case is filed is called the "venue." Your lawyer can explain how these rules affect your case.
A lawsuit formally starts when you file a written Complaint with the court. This Complaint first describes the facts of the case, your injuries and why the person you are suing is responsible for your injuries. It states each "cause of action," which is a reason for suing, and finishes with a request for financial compensation for the injuries you have incurred. This can be quite detailed but needs only contains enough information to tell the defendants why they are being sued.
Along with the Complaint, your lawyer will also file a summons, a document that will be served to (that is, formally given to) the defendants. The summons explains how the defendants should respond to the complaint and gives the deadline to do so. As a courtesy, your lawyer may send a copy of the complaint to the defendants' insurance company or companies.
When your Complaint is filed, your lawyer will also specify whether you prefer a trial by jury or a "bench trial," in which a judge makes most of the decisions. In Idaho you have fourteen days from the date of filing suit to request a jury. You and your lawyer should talk this issue through.
In a jury trial, a group of randomly selected citizens from the area decides all of the questions of fact while the judge acts as a referee and resolves legal questions. You have a Constitutional right to a jury. But that does not mean a jury trial always the best way to proceed. In a bench trial, a judge decides questions of fact as well as questions about the law. Bench trials are less common than jury trials. If your lawyer recommends one, he or she should be able to explain why.
Who Answers the Complaint?
After the Complaint is filed and served, the defendant's insurance company will usually assign the matter internally to an employee called a litigation claims adjuster, who will oversee the claim. This person's job is to try to resolve your claim before trial, or handle the claim in a way that helps the insurer at trial. Insurance companies sometimes take extra steps to resolve your claim after the lawsuit is filed, so you may be able to settle at this stage. However, for this chapter, we will assume that they will not settle right away.
The insurance company will also assign one of its own lawyers, or hire an outside lawyer, to represent the defendant in court. The first task for this lawyer is to prepare a document called an Answer to file with the court. This Answer will either admit or deny the allegations of your complaint; it may even say that other parties are at fault for your injuries and should be added to the lawsuit. The Answer may also set forth any defenses the defendant is planning to use in the case that explain why he or she is not responsible for your injuries. Often, the Answer blames the injured person for their own injury without any real basis in the facts.
It is only after the Answer is filed that a trial in your case will be scheduled. If the defendant fails to file an Answer at all or breaks a rule when filing it, you can ask the court to simply declare you the winner by asking for a "default judgment." This is not common; it is a little like a sports team forfeiting a game because it never showed up to the playing field.
Discovery is the process of exchanging information about the case with the other side of a lawsuit. This is a formal legal process governed by set rules. The law requires that both sides of a lawsuit share information about the case with one another on request. (Certain things, such as privileged communications between you and your lawyer, are exempt from discovery even if they are specifically requested.) In most cases, the information exchanged includes information about your accident, the injuries you sustained, the nature and cost of your health care, the effect of your injuries on your life and your family, your employment background and your educational background. The defendant will also seek information about your medical history.
Discovery is extremely important because it permits both parties to learn about the facts and issues of the lawsuit before trial. This allows both sides to build a case and evaluate the strengths and weaknesses of their positions. One of the reasons for doing this is to promote settlement. During settlement talks, the information you receive during discovery can be invaluable.
Typically, the first step for both sides in discovery is to send written questions for the other side to answer. These written questions are called interrogatories, and you are supposed to answer these questions under oath, even though they are written and you will not be in a courtroom. Interrogatories will usually ask you about the accident, your background and your damages, including any past injuries or problems for which you have sought health care, as well as any previous legal claims you were involved with. You may also be asked to provide details about any income you lost or information about your past employment. The goal is to build a story about the relevant parts of your life before and after the accident. When you have written your answers and they have been put in the proper format by the lawyer you will sign them and they will be sent to the defendant's lawyer.
We find that some clients are initially reluctant to answer these questions, because they can be personal or stray into topics considered impolite or irrelevant. Sometimes it is hard to understand what the defendant is even asking for. Your lawyer can and will formally object to an inappropriate interrogatory, or to a number of interrogatories that exceeds limits set by your state's laws. However, these questions are usually being asked because they are relevant to your case. Most of the information about your health and your finances is considered "discoverable," which means it is a fair question during discovery. Your responses help your own lawyer and the other side gather the information they need to evaluate your claim, which helps you get closer to settling your case fairly.
Your Records Are essential in Discovery
As a plaintiff, you have the responsibility to prove your case. But ironically, the defendant does not have to prove anything. Because the burden to prove your case is on you, your actions as a plaintiff are very important. Take the case of a 37-year-old construction worker who was hurt when a load of cement blocks were partially dropped on him, driving him to his knees. This injury caused him debilitating back pain, and because of it, he was never able to return to work.
The problem in the case was that all of the damages were based on an invisible injury – pain. Pain is very difficult to prove. But in this case, the injured worker was extremely consistent about attending all of his medical appointments, kept very good records, established reliability with his medical providers and had a long-established reputation for honesty and hard work.
Because of this consitency and reliability, all of the witnesses in the case were willing and able to give favorable testimony. The injured man's medical providers were able to explain and support his claim for the unseen injuries. As a result, his lawyers were able to convince the defendants of the substantial risk of taking the case to trial, obtaining a settlement large enough to supplement the man's lost income and provide security for his family. In his role as a plaintiff, the worker did his job successfully so that his lawyers could do theirs.
Requests for Admissions
Another written discovery tool is a request for admissions, which is simply a document asking one side to admit or deny the facts it specifies. If you dispute or deny a request for admission, you must write down the facts that you believe support your position. Your lawyer should help you with this. Using requests for admissions helps both sides determine which facts are agreed upon, which are disputed and which must be part of the lawsuit.
It is important to respond to requests for admissions in a timely manner, because if you miss the specified deadline, the court will behave as if you admitted to everything asserted in the request.
The Importance of Being Earnest During Discovery
Complete disclosure of information during discovery is an important way to come to a settlement, but it is also important if you end up in trial. This was illustrated by the client who failed to disclose that she had been denied a promotion at work because of her injuries, resulting in over $20,000 a year in lost income. She thought it would be better to "surprise" the insurance company with this information at trial.
However, because this client had failed to bring this information up in discovery, the defendant was able to prevent her from testifying about it at trial, because it had not had an opportunity to investigate that part of her claim. The judge ruled that because the information was not provided before trial, as required by the rules of discovery, it could not be presented to the jury.
The mistake by the client prevented her from recovering compensation for lost wages that totaled $400,000 over her lifetime. The client still won her lawsuit, but the judgment did no include any compensation for her lost future income. Not only could she have won more by disclosing this loss before trial, but she could have also increased her chances of settling the claim for a larger amount – without going to trial at all.
Requests for Production
Requests for production of documents — that is, asking the other side to send copies of specific papers — are an important part of discovery. Requests for production may come with the interrogatories, but both sides are free to request production of documents throughout discovery.
Requests for production should be requests for documents that are relevant to the lawsuit, the accident or your damages. This often includes copies of your health care records, receipts or invoices for your health care expenses, accident reports, witness statements and pictures of the scene of the accident. If you are claiming a loss of income, you will probably be asked to provide your tax returns for several years prior to the accident. You may even be asked to produce any notes or diaries you have kept. But either side may request any discoverable document. Your lawyer may review the request for production with you and help you copy the documents and send them to the defendant's lawyer.
In addition to requesting documents and evidence from you, the defendant's lawyer may also ask other people or companies for information. Most commonly, he or she may request copies of your medical records directly from your treating doctors. The defendant may also be entitled to request information about you from your employers, schools you have attended or from the military, if you have served. Additionally, if you have applied for Social Security benefits, the defendant's lawyer may request information about your claim from the Social Security Administration. You may feel uncomfortable with these requests, but if the information is discoverable, the defendant's lawyer is entitled to ask for these documents.
A deposition is a little like an oral version of interrogatories. When you give a deposition, you answer questions from the lawyer for the defendant in person, under oath, and usually with all of the parties and their lawyers in the room. A court reporter will be hired to take down your answers, which you usually give in the office of one of the lawyers. Either side may request a deposition at any time, but the request is most likely to come after you have responded to interrogatories and requests for production of documents.
Many of our clients are nervous before depositions, but there is no need to be nervous. There is only one important rule in a deposition—tell the truth.
Your lawyer will be there to observe throughout the deposition and can object to inappropriate questions or ask for breaks if you need them. This is important, because it is essential for you to stay calm and professional during a deposition. This is the first opportunity for the other side to evaluate you in person, so you should appear neat and as confident as possible. Your lawyer can advise you on what to wear and how to behave.
Your lawyer will prepare you ahead of time for the questions in your deposition. Some lawyers ask you to review all the records in your case. You may be asked to attend a meeting where you review all of the written information your lawyer has, as well as any responses you gave to interrogatories. This process should also help refresh your memory about the details of your injuries, your treatment and your recovery. Other lawyers prefer to let you testify from your best memory including telling the other dies lawyer when you are unsure or don't remember certain items.
When the deposition begins, you will be asked to swear an oath to tell the truth to the best of your knowledge, just as you would in court. The court reporter will swear you in, then type your testimony into a written transcript that will be available to the lawyers later. In some cases, the deposition is also videotaped, which means that there may be another person operating a video camera and filming the deposition. The lawyer taking your deposition will introduce him- or herself and may briefly explain the procedure for the deposition.
The deposition is an opportunity for the other side's lawyer to clarify or have you explain your written discovery answers, and to obtain additional information. It is important to make sure that your testimony is truthful and consistent with your interrogatory responses, so the other lawyer does not spy a seeming inconsistency between your oral testimony and your written testimony. Your answers should be based on your own personal knowledge; do not guess in making an answer. If you do not know or remember the answer to a question, you should say so. Many people feel embarrassed to admit they do not know something or have a memory lapse, but these things are only human. And when you are under oath, it is important to be as straightforward as possible.
Remember that the lawyer for the insurance company is your adversary, not your friend, and may not believe the facts are the way you say they are. If you are asked a question that you disagree with, perhaps because it assumes something you do not believe is true, do not be afraid to say so in order to answer the question. Stay in control; if the lawyer for the defendant puts you in a position where you must speculate, say so. If you do not understand or hear a question, you can ask for it to be repeated or rephrased.
As with the written discovery, you may feel that some of the questions are invasive or do not directly relate to your accident. However, unless your lawyer objects or tells you not to respond, you should answer every question in the most honest way you can. If some of the questions upset you, you can usually take a break during your deposition testimony, although you may have to respond to any unanswered questions first. If you would like a break, you can simply tell your lawyer. If the break is allowed, you will be permitted to get up, walk around, get a drink of water or just clear your head.
After the other side has finished questioning you, your lawyer is usually permitted to ask you more questions, or clarify an answer you gave earlier. This does not happen in every case, and in many instances, your lawyer may not ask you any questions at all. If this is the case, it does not mean the lawyer failed to do his or her job; there may be strategic reasons.
In addition to taking your deposition, the lawyers in the case may also depose any other witness in the case. While the number of depositions will vary from case to case, depositions are often taken from the defendant, any witnesses to the accident, friends and family members who are familiar with your injuries, representatives from the defendant's insurance company and your own doctors and health care providers.
Discovery and Settlement
The discovery tools outlined on this page are only some of those available in a lawsuit, but these will be used in the majority of cases. Discovery may seem time-consuming, but by exchanging this information, the parties can often get the information they need to settle the case without a trial. And if the parties are still not able to resolve their case after discovery, the information they exchange during discovery will help them build evidence for their cases and narrow down which facts must be decided at trial.