Generally, the defendant must put forth any and all defenses they intend to use at trial. Some jurisdictions allow defendants to assert a limited number of defenses and many will utilize all of them, even if they may not be applicable to the case.
After the defense enters its answer to the complaint, each side will send responsive pleadings to the court. Pleadings are pieces of information about the case to give the judge a better understanding about the nature of the case. After the initial filing and preliminary steps, each side moves on to gathering information and evidence in the discovery process.
4. Discovery of evidence
Discovery is the portion of the lawsuit where each side gathers evidence about the case to present at trial. Injury attorneys conduct discovery through a variety of means in order to craft the strongest possible case for their clients. Types of discovery requests include:
- Interrogatories – A list or written questions each side sends to the other to gather information about the case. These questions may be very broad or very specific. Each side may only ask a certain number of questions of the other and answers must be submitted within a given time frame, depending on the jurisdiction.
- Request for Production – Under the law, each side may ask the other for dozens of different kinds of documents including medical records, employment information, expert reports, and photographs, just to name a few. Sometimes, it may necessary to compel the other side to produce such documents through subpoena.
- Depositions – Attorneys take recorded testimony from witnesses under oath. These meetings typically take place at the attorney’s office. Deposition is a critical time to challenge the case against the defendant and compel the other side to take responsibility for its careless actions.
- Requests for Admission of Fact – Written requests from one side requesting the other confirm factual elements of the personal injury lawsuit. Often times, requests for admission help authenticate documents and expedite their admission into evidence at trial.
- Expert Witnesses Reports – During a lawsuit, both sides will have the opportunity to consult with expert witnesses to prove or disprove negligence was the cause of the victim’s injury. In personal injury lawsuits and medical malpractice claims, these experts give their professional opinion as to whether the defendant failed to live up to his or her legal duty to protect others.
5. Pretrial Settlement Conference
Depending on the jurisdiction hearing the case, both sides may be required to meet at a pre-trial settlement conference to try and resolve the case. Typically, attorneys from each party meets in the same room with the judge hearing the case who encourages the two sides to reach an agreement out of court.
While pretrial settlement conferences are excellent opportunities to come to an agreement with defendants and secure compensation for clients, our personal injury attorneys understand when to press forward with trial. Defense attorneys often extend offers with less than appropriate compensation or continue to deny liability outright which further extends the litigation process.
Another tool parties may engage in to resolve a lawsuit is mediation. The process begins by each side choosing an independent mediator, usually a former judge or a respected member of the legal community. A meeting then takes place between all sides in the case with the hopes of reaching an agreement to settle the case.
Typically, the mediator meets individually with each party in the case to hear their side and attempts to bring the two sides to an amicable agreement. Failing mediation or another settlement, each side will then prepare to take the case to trial in front of a judge or jury.
Serious personal injury lawsuits and medical malpractice claims are almost always heared before a jury of men and women. While the judge will rule on whether or not to admit evidence, allow certain testimony, or adopt certain motions by the attorneys, it is the jury who will ultimately decide the case and how much, if any, the plaintiff should be compensated for his or her injury.
Below is a brief outline of the main aspects of a civil trial. It is important to note that the two sides can still reach an out of court settlement in the middle of the trial and bring final resolution to the case without the need for further litigation or an appeal.
- Jury Selection – The jury selection process starts with a pool of potential jurors who received a summons to appear for jury duty. The jury pool may include several dozen individuals randomly selected. The judge and the attorneys will then ask the jurors questions to determine whether the individual has any bias or can remain impartial during the trial.
- Opening Arguments – After the jury is selected, the attorney for each side makes his or her opening statement with a general outline of the expected testimony, why the defendant was responsible, and what the plaintiff should be compensated for.
- Evidence and Case in Chief – Each side presents its case in chief after opening arguments. The plaintiff will go first, presenting evidence and calling witnesses to show why the defendant should compensate the victim. Defense attorneys have the opportunity to cross examine plaintiff’s witnesses and then present their own case in chief.
The plaintiff’s attorney must prove by a preponderance of the evidence that the defendant’s conduct satisfied the four key elements of negligence: duty, breach, cause, and damages. The defense attorney on the other hand will attempt to persuade the jury that the plaintiff’s case failed to meet the burden of proof to show his or her client’s conduct was more likely that not negligent.
After the defense rests its case in chief, the plaintiff’s side may present rebuttal evidence to contradict that of the defense. This is a limited but crucial period in the trial and can help the jury fully understand the plaintiff’s case.
- Jury Instructions – Once each side has presented its evidence, the judge hearing the case must determine the wording of the instructions on applicable law to the case. The wording of the instructions can be quite important as it guides the jury on the rules of how to reach a decision.
- Closing Arguments – After the jury hears each side’s case and receives instructions from the judge on how to reach a decision, each side’s attorney has one last opportunity to summarize their side of the case. Jurors will then sequester themselves in the jury room until they make a decision in the case.
- Deliberation – The first time the jury has to openly discuss the case will be during the deliberations, as per the instructions of the judge at the beginning of the case. The reason juries cannot discuss the case until this point is because each side must be able to present its full case and allow the jury to make its decision based solely on the evidence presented. If the jury rules for the plaintiff, it will decide the types of damages the victim may be entitled to.
It is not uncommon, and almost likely, one side will appeal the jury’s verdict. Appeals are heard by a higher court and must allege some form of error on the part of the court to allow certain testimony or rule in a certain way. Typically, appeals by either side must be filed within 30 days of the jury’s verdict.