By Francis M. Smith
Pursuing your injury case in court is a complex process with several stages, some of which may be very time-sensitive. Your attorney will guide you through the process and make sure your injury case stays on track, but the more you understand about the way your lawsuit will progress, the more comfortable you will be.
Most injury claims are resolved with a mutually agreed-upon settlement between the injured plaintiff and the insurance company before trial, one estimate is 97%, but it’s vital to preserve your option to bring your case to court – both to ensure that you are negotiating from a position of strength, and in case settlement negotiations fail to produce a satisfactory agreement. In order to protect your right to sue, you must submit the necessary documents ( most importantly the formal "complaint") to initiate your lawsuit before the statute of limitations lapses. For most injury cases, the deadline is two years from the date of the incident that caused your injuries, though in some cases (such as when the injured plaintiff is a minor), the statute of limitations may be extended. (In the case of a minor, it is usually 2 years after the minor turns 18.) If you are bringing suit against a government agency, there will likely be additional paperwork you need to file before you can sue, and these documents will have a much shorter deadline – sometimes as little as 30 days from the date of injury, in claims against a New Jersey public entity, a formal notice must be given within 90 days. This is one reason that having the help of an attorney with your injury case is so vital; your lawyer will be aware of these deadlines and keep your case on track. Submitting these initial documents does not commit you to suing; you can still resolve your claim with a settlement at any time before the conclusion of your trial. Filing these documents does, however, preserve your option to sue, should it prove necessary.
Once any preliminary documents or notifications are filed, your attorney will submit a formal complaint to the court. This document describes your "cause of action" - in my practice, usually an injury caused by negligence of the named defendant(s). The complaint usually outlines in broad strokes the circumstances of your accident, the fact that you were injured, and why the defendant was at fault for your being hurt. In New Jersey, the complaint does not state the amount you are seeking in compensation for your injuries. A demand for jury trial is almost always included (if appropriate, a jury can be waived sometime later in favor of a bench trial). Your lawyer will also draft a document (the Summons) to be presented to the parties responsible for your injuries, informing them that they are being sued, how they may respond, and their deadline to act. The insurance company representing the party at fault for your injuries will generally respond in two ways – if they have not done so already, they will assign an insurance adjuster to your case, to try to resolve the claim out of court, and their legal team will draft an answer to the complaint submitted by your attorney. The document they create will tell their “side” of the story, usually consisting of denials of everything - the assertion that you were injured and the assertion that their insured was negligent - and they will outline any defenses they plan to use to show that they should not have to pay you for your injuries, or should pay you less than all your damages - like asserting that your were partialy or entirely responsible for the happening of the occurrence which led to your injuries. Once the defense’s answer is submitted to the court, the legal representation of the parties has been established and "discovery" is undertaken for a period of time, meaning that both sides get to learn more about what will be said at the trial if it goes that far.
Though your lawsuit has officially begun at this point, there are important and sometimes lengthy stages before your injury attorney and the insurance company’s lawyer will trade arguments in front of a jury. The beginning phase of an injury case, the discovery stage, is when both sides research the facts of the case and gather the evidence they need to support their arguments. The two sides may request information from one another, as governed by a specific set of rules (in our case, the New Jersey Rules of Court). Certain information, such as privileged correspondence with your attorney, is off-limits in discovery, and other private information may only be obtained if the requesting party can show that it is relevant to the case. The insurance company will obviously need the details about the medical treatment you received for your injuries, and discovery of your medical conditions, if any, before the date of your injury, is fair game. Their right to delve into all phases of your medical history is very broad, but does have limits.For instance, if no psychological injuries are asserted, no psychological history may be explored. Your attorney may under some circumstances ask the Court for a protective order to protect you from an over-zealous defense attorney (and they are out there).
During the discovery phase, you will be required to answer questions asked by the insurance company, both in the form of written interrogatories and verbal depositions. Both of these forms of questioning are under oath, so it’s important to be truthful when answering. Your attorney will help you prepare your responses, and object to any inappropriate or irrelevant questions. Any witnesses to your accident may be questioned in a deposition as well by both your attorney and the insurance company’s lawyers, as will any expert witnesses brought in to give additional insight into your injuries and recovery (or lack of recovery) or the circumstances of the accident. When both sides have all the facts, your injury case proceeds toward trial.
If you or a loved one have been injured in a serious accident, please contact me or call me at 908-233-5800 for a free consultation.