Learn about the basic steps in all civil litigation cases so that you know what you’re in for
A personal injury lawsuit begins when a private individual (the “plaintiff”) files a complaint against another person or entity (the “defendant”) seeking to be compensated for an injury allegedly caused by the defendant.
Every personal injury lawsuit is unique. In addition, each state has rules and standards that impact how a case proceeds. Nevertheless, there are 8 steps that are common to almost all personal injury lawsuits, whether you’re represented by a lawyer or representing yourself.
Let’s take a look at these steps in detail.
Step 1: Summons and complaint
The first document filed in most personal injury lawsuits is called the “complaint.” The filing of the complaint effectively begins the lawsuit.
Most states have at least 3 different court systems where you might file your complaint. In almost all cases, there will be a “fee” for filing the complaint. This fee varies by state and court, but generally ranges from $30-$300.
The complaint typically includes the following information:
- The identities of the parties involved
- The legal basis for the court’s jurisdiction over the lawsuit
- The legal claims
- The facts related to the legal claims
The complaint will also contain a section at the end (usually called the “prayer for relief”) explaining what the plaintiff wants the court to do (e.g., enter judgment against the defendant).
Sometimes the prayer for relief will include the amount of the judgment the plaintiff would like the court to enter against the defendant (i.e., the amount of damages the plaintiff is seeking). Other times, the prayer for relief will simply ask the court to award an amount to be determined later at trial.
It’s not enough to simply file a complaint with the appropriate court. The plaintiff has to make the defendant aware that the defendant is being sued. The document that helps accomplish this is called the “summons.”
The summons notifies the defendant that they’re being sued and refers the defendant to the attached complaint.
Both the complaint and summons must be filed with the court. In addition, both the complaint and summons must be delivered to (“served to”) the defendant. The legal term for this is “service of process.”
Each state has specific rules for how service of process can be accomplished. For example, it’s generally unacceptable to simply mail the complaint and summons to the defendant.
It’s very important that the defendant is properly served. If they aren’t, the defendant can dismiss the lawsuit based on insufficient process. While you can generally re-file the lawsuit if this happens, it will cost you more money.
What’s more, the statute of limitations may run by the time you re-file.
Step 2: Answer
Once the complaint and summons are filed and served, the defendant must respond in a certain amount of time. This varies depending on the court (and sometimes the location of the defendant), but is usually around 21 days.
The defendant’s response to the complaint is called the “answer.” The answer addresses each paragraph of the complaint by admitting or denying the allegations contained in the paragraph.
An answer may also set forth various defenses (legal reasons why the defendant should not be held liable for the plaintiff’s damages).
In some instances, the defendant will want to assert their own claims against the plaintiff. This is called a “counterclaim,” and a defendant can include a counterclaim in their answer. The counterclaim is written in a manner similar to the complaint and the plaintiff will have an opportunity to answer the counterclaim.
Step 3: Discovery
Once the initial pleadings (complaint, summons, answer, counterclaim, etc.) have been filed, the parties begin the process of obtaining evidence from each other. This process is called “discovery.” The idea behind discovery is that both parties should have access to all relevant information.
Each party doesn’t just hand over evidence automatically. Instead, each party must request the information they want. There are 5 main tools used to request information in a personal injury case:
- Interrogatories. Interrogatories are specific questions submitted by one party to the other. The responding party must answer the questions under oath and in writing.
- Requests for production. Requests for production are similar to interrogatories, except instead of asking questions, one party asks the other to produce copies of relevant documents in their possession.
- Requests for admission. One party may ask the other party to admit or deny any material fact.
- Depositions. At a deposition, the attorney for one party will ask the other party (or a witness) questions. The party being deposed must answer the questions orally and under oath. The deposition is recorded word-for-word by a court reporter.
- Physical examination. A mental or physical examination of a party whose condition is an issue in the case may be authorized by the court.
Keep in mind that discovery questions and requests must lead to the discovery of admissible evidence. If a question or request is improper (for example, it’s wholly irrelevant to the case or privileged), the responding party can object.
Step 4: Motions
Before the trial begins, parties may use motions to ask the court to rule or act. If a ruling on a motion could result in a termination of the lawsuit, it’s called a “dispositive motion.” If a ruling is instead on some incidental question, it’s called a “non-dispositive motion.”
Common motions in personal injury cases include:
- Motion for summary judgment
- Motion for default judgment
- Motion for change of venue
- Motion to compel
Step 5: Pre-trial negotiations
Trials are expensive, time-consuming, and emotionally draining. As a result, good lawyers will try to resolve a case before it gets to trial. There are 3 primary ways to do this:
- Settlement. Once discovery is complete, the lawyers in a case will generally discuss settlement. These settlement discussions may include written offers and counteroffers, or may simply take the form of a conversation between the lawyers over the telephone.
- Mediation. If the lawyers can’t resolve the case by talking to one another, they will sometimes bring in a neutral third party to help. This neutral third party is called a "mediator." The mediator's job is to assist the parties' settlement efforts by meeting privately with each party to discuss the strengths and weaknesses of their case. The mediator doesn’t have the power to force the parties to agree on a settlement.
- Arbitration: Arbitration is an adversarial proceeding in which the parties select a neutral third party, called an "arbitrator," to resolve their dispute. Arbitration is like a mini trial. The parties present evidence and argue their case to the arbitrator, who then decides which party wins. Parties who agree to settle their dispute using binding arbitration usually can’t appeal the arbitrator's ruling to a court.
Step 6: Trial
In a civil trial, a judge or jury examines the evidence and decides whether the defendant should be held legally responsible for the damages alleged by the plaintiff.
A civil trial typically consists of 6 main phases:
- Choosing a jury
- Opening statements
- Witness testimony and cross-examination
- Closing arguments
- Jury instruction
- Jury deliberation and verdict
Step 7: Collecting the judgment
Congratulations! The judge or jury has awarded you money damages. Unfortunately, the defendant (now the “debtor”) doesn’t always follow the court order and pay the amount of the judgment. If this happens, you may have to take additional steps and incur additional legal expenses to collect the judgment.
These steps might include:
- Conducting post-judgment discovery to uncover the debtor’s sources of income and assets
- Garnishing the debtor’s wages
- Placing a lien on the debtor’s real property
Step 8: Appeal
If a party doesn’t agree with the result of the trial, they can appeal the decision. If a decision is appealed, each party will have an opportunity to submit a brief to the appellate court. In addition to the briefs, the appellate court will review the record of the trial court.
After reviewing the briefs and the record, the appellate court will release an opinion. The opinion will either affirm the verdict made by the trial court or find an error, in which case the appellate court may reverse the verdict or order a new trial.
Personal injury lawsuits can be lengthy and complex. Locate an attorney near you using our free online directory so that you can focus on recovering from your injury while your lawyer handles the legal headache.