THE EARLY STAGES OF A LAWSUIT
Filing the Complaint
A lawsuit is initiated by the filing of a document called a "Complaint" in the appropriate court. The injured person is called the "plaintiff," and the plaintiff, or the plaintiff's attorney, files the lawsuit. The defendant is the person who caused the damage. The lawsuit is usually filed in the county where the incident occurred, or where the defendant lives. There will be a court filing fee paid at the time the complaint is filed, of approximately $275.00
The complaint or petition will be in the form required by the particular court and will generally set forth the particular facts giving rise to each count in the Complaint. The Complaint will also contain what are called “Prayers for Relief” which are the Plaintiff’s request of what they want to the court to do such as issue a money judgment in their favor or to issue an injunction etc..
Service of the Complaint
At the time the lawsuit is filed, a case number is issued. A summons is then prepared and personally delivered to each defendant along with a copy of the lawsuit. This procedure is called service of the lawsuit. The summons will include the case number, name the plaintiff and each defendant, and direct the defendant to file a formal response (usually a document called an "Answer") with the proper court within a specific length of time. Massachusetts generally allows 20 days for a Defendant to respond from the date the summons and complaint are served.
In a personal injury matter, if the defendant has no insurance, the Defendant should turn the complaint over to an attorney. If there is insurance, then the Defendant should notify their insurance company, and the insurer will defend the actions pursuant to the terms of the policy. The attorney will then file the appropriate response with the court. If nothing is filed within the required time, plaintiff may "default" the defendant and could end up obtaining a judgment.
Filing the Answer
The answer may contain one or more the following:
A general denial of the claim
Admissions that some of the allegations in the complaint are true, but others are not (for example, a defendant might admit that he hit the plaintiff's car, but deny that the plaintiff was injured)
An "affirmative defense," such as a claim that plaintiff was also at fault in causing the accident or that the statute of limitations had run before the complaint was filed
A "counterclaim," which is a claim back against the plaintiff
A "cross claim," which is a claim against another defendant
A "third party claim," which is a claim against another person or company who was not originally named in the lawsuit
THE MIDDLE STAGES OF A LAWSUIT - DISCOVERY
Discovery is the process by which each side finds out much of the information the other side has. It is a formal investigation wherein each side gathers evidence to prepare its case. The days of "trial by ambush," in which neither side knows what the other is going to do until trial actually begins, are largely over. Now, both sides have fairly broad access to information to prepare their cases.
The process of discovery is governed by local rules of court procedure, and every jurisdiction is different. Interrogatories may be exchanged by the parties in the dispute in order to find out the facts. Depositions may be taken. Doctors and witnesses may be interviewed. Medical records and wage loss verification may be requested through the use of procedures such as "requests for production." Furthermore, in a personal injury matter, the defendant may ask that the plaintiff be examined by a doctor the defendant chooses.
The reason for discovery is to get to the truth by making sure that both side have all the information regarding the crash and resulting injuries. Many times settlement of the claim is possible after the discovery process is complete, since it forces everyone to try to accurately evaluate the strengths and weaknesses of their case.
Depositions
In Massachusetts, the law allows the taking of testimony (deposition) of the parties and witnesses to be taken before the trial. In a deposition, the plaintiff, defendant, doctor or other witness is sworn to tell the truth, and questions are then asked by the attorneys in the presence of a court reporter who takes down all of the testimony. Your attorney will be present at all times during a deposition. What is said at a deposition can later be used at the trial.
Interrogatories
Interrogatories are written questions that each attorney may prepare and give to the other side to be answered under oath. The answers are considered sworn testimony, just as if given during a trial. Massachusetts permits the use of interrogatories.
Requests for Production
Each lawyer will probably serve requests for production of documents on the other lawyer. These requests compel the other side to provide documents, such as medical records, photographs, economic information about the parties, and other evidentiary materials.
Requests for Admissions
Admissions are similar to interrogatories with the exception that they are usually narrow questions posed in an “admit or deny” format. They may also be used to authenticate certain documents.
Defense Medical Examinations
The insurance company for the defendant may request that a plaintiff be examined by a doctor chosen by the insurance company. The court will usually require that a plaintiff attend this exam. In the past, these examinations were called an Independent Medical Examination or IME. Because these exams are bought and paid for by the defense, we refer to them as Defense Medical Exams (DME). If the case goes to trial, the DME doctor can come in and testify about his or her findings in the exam.
THE LAST STAGE - TRIAL
Trial Date
At some point a trial date will be assigned. This means that your case will be placed on the court calendar. The court calendar is a list of dates on which cases which are ready for trial will be heard. The date of trial may be several months away, or even a year or two away, depending on what county (jurisdiction) your case was filed in.
Each jurisdiction is different about when they assign trial dates, and how long it takes to get to trial. You could wait as little as six months from the time your complaint is filed to actually begin trial of your case, to over a year in some large urban areas. Even though a trial date is received, it is common that continuances be requested. They can be requested by either side. Typically the reasons are that discovery is not completed, or one of the attorneys or a party has a conflict with another matter.
Status/Pretrial Conferences
The court wants to make sure that the case is progressing toward a realistic trial date and that a good effort has been made to settle the case before committing the court's resources to a trial.
On occasion, a judge will take an active role in trying to get the two sides to reach a negotiated settlement. He/she may suggest possible compromises on the case and encourage a plaintiff to accept a settlement offer. Conversely, the settlement judge may also seek to encourage an insurance company to offer more money in settlement. The approach will be based on the particular facts and the judge's experience. Judges can be very persuasive in conferences.
If settlement is not reached, the case will usually go to trial.
Trial Procedure in a Nutshell
Jury Selection
Although it is not required, most personal injury cases are tried to a jury. In a jury case, the first step is to obtain a jury that can be fair and impartial. Traditionally, juries are made up of twelve individuals, although some courts use six jurors. Jurors are selected at random from the community using public records such as voter registration or drivers license information.
After a jury "panel" of perhaps 20-30 potential jurors has been sent to the courtroom from a waiting area, the first step is to question prospective jurors to determine whether they can be fair and impartial. The judge and the attorneys on each side have the right to question jurors and may ask that a juror be excused "for cause" if the juror is biased or otherwise indicates he/she cannot fairly decide the case.
In addition, each side has certain "peremptory challenges" which permit them to excuse a limited number of jurors without giving a reason.
Opening Statements
After selection of the jury, each attorney has the opportunity to make an opening statement to the jury. This statement describes what the case is about, gives a preview of what evidence will be presented, and basically outlines the nature of the argument for the jury.
The trial begins by plaintiff's attorney addressing the jury. Next, an opening statement is generally made by defendant's attorney, although the defense attorney is permitted to waive his opening statement and wait until the plaintiff's case is completed before addressing the jury.
Presentation of Evidence
The presentation of evidence begins after the opening statements. Plaintiff's attorney will present evidence first, followed by the defense. Evidence consists of the testimony of witnesses and exhibits which the court allows into evidence.
All evidence must be legally admissible. Complex rules of evidence govern what is legally admissible, and disputes between the attorneys are resolved by the trial judge. These evidentiary rulings are important because they help determine what the jury will consider in arriving at their verdict, and errors by the judge in his or her ruling on evidence questions may provide the basis for a later appeal of the verdict.
There are two basic types of evidence which can be presented. Testimony is oral evidence on any relevant matter given by a witness who is under oath. Physical evidence includes all other types of evidence such as medical records, x-rays, tax returns, and photographs which the trial judge allows the jury to consider.
In order to support their position, each side calls witnesses to testify. They may be either lay or expert witnesses. Lay witness may have knowledge of relevant facts, such as an eyewitness to an accident or a spouse who testifies to plaintiff's physical limitations from the accident. A witness who has knowledge or special training not generally known by the general public would be considered an expert witness. For example, a physician would be considered an expert witness because of his medical knowledge.
After the plaintiff's case has been presented, the defense has the right to make a motion (a request) to the judge to dismiss the case on the basis that a case has not been sufficiently established. This would be based on defense's contention that plaintiff has not shown enough evidence to support the claim.
Plaintiff has the burden of proof. This means that a plaintiff must provide evidence to support each and every claim he or she is making. By making the motion to dismiss, defendant is asking the judge to rule that there has been insufficient evidence presented and that, as a matter of law, the jury could not rule in the plaintiff's favor. If the judge rules that the plaintiff has not met the minimum requirement of proof, the judge will grant the motion to dismiss the case. If the judge decides that enough evidence has been presented, defendant's motion will be denied and the trial will continue.
Next up is the defendant's attorney, who will introduce testimony from witnesses and other evidence, the object of which is to disprove the claims presented by the plaintiff. When this process is completed, that is, when all the defendant's evidence has been introduced, the defendant's attorney will rest his case.
At this point, the plaintiff has the right to bring in rebuttal witnesses. The purpose of these witnesses is only to refute specific evidence introduced by the defendant.
Closing Argument
After both sides rest their cases, each is permitted to address the jury in a closing argument or summation. This is a final attempt to influence the jury's verdict by reviewing the evidence and by using the art of persuasion. In most states, the plaintiff argues first, then the defendant argues, and then the plaintiff offers a rebuttal.
Jury Instructions
After the summations (or sometimes before them) the judge will instruct the jury - that is, the judge will inform the jury of the law applicable in the case and how to apply the facts in the to that law to arrive at a verdict. The attorneys for both sides usually propose jury instructions and argue to the judge, without the jury present, about what instructions should be given to the jury before the jury is charged. Errors in jury instructions can result in a case being overturned on appeal and retried, so the attorneys and judge are usually very thorough about the language of jury instructions.
Verdict
After the members of the jury have heard the evidence, heard the arguments of the attorneys, and been instructed as to the law of the case, it is left up to them to reach a verdict. They will decide if the defendant was at fault in causing the motor vehicle accident and, if so, how much money the plaintiff is be awarded in compensation.
The jury retires to a jury room, where the case is discussed. A presiding juror, sometimes called a "foreman," is selected to guide the jury deliberations, but does not have any greater vote than any of the other jurors.
In Massachusetts, a 5/6ths majority is required for a verdict in a civil case involving personal injuries.
Some Notes on Courtroom Conduct
During a trial, the same items listed in the section on how to conduct yourself during a deposition apply to your presence in court. Most important is behaving in a respectful manner to everyone and answering questions truthfully. The following are additional tips:
- Be in court and attend every day of the trial. If you do not, the jury may attribute your absence to lack of concern about your case.
- Do not be late for court.
- Be polite, courteous and dress appropriately at all times. The jurors are watching you!
- Do not attempt to communicate in any way with your attorney or anyone else while testimony is being given or when the court is being addressed by your attorney.
- Do not argue with your attorney or anyone else in the view of the jury or judge. Take notes during the proceedings so that you can bring up any concerns later to your attorney.
- During your testimony, if your attorney objects to a question asked of you, do not answer until the judge instructs you to answer.
- Do not attempt to communicate with any juror at any time.
- Be sure you speak clearly and speak loud enough to be heard.
APPEAL
If the verdict of the jury goes against you, you may have the right to an appeal to a higher court. This is true whether you are the plaintiff or the defendant. In general, the appellate process is where legal arguments are made in written documents called briefs, then argued orally before the appropriate appellate court. The appeal is not a place to present witnesses or evidence; the appeals court reviews only the record made at trial. The record consists of the evidence, the exhibits, and any other proceedings taken down by the court reporter.
SUMMARY
As you can see from the above, civil litigation is a labor intensive, costly, and stressful process. At Hamilton & Hamilton, we do not take the institution or defense of litigation lightly. However, to protect our client’s interests, we will continue to litigate our client’s cases aggressively to the full extent of the law.
If you have a question or would like to speak to an attorney about your matter please contact us.
