(1) The Lawsuit Begins 

Once we draft a Complaint and file it with the appropriate county clerk along with the $210 Index number fee, it is served on defendant(s) by an outside process server company.

An in-state defendant has 20 days to serve an Answer to the Complaint. Typically, defendant’s attorney or insurance adjuster will ask for an extension of time to serve its Answer. These requests are routinely granted and will add at least 30 days to the case progress.

Once we receive the Answer, we will file a Request for Judicial Intervention ($95 fee) for a Preliminary Conference (“PC”) to set a discovery schedule. Many counties allow the attorneys to do their own PC Order and file it with the court so that an attorney in-person court appearance is not required.

(2) PC and Discovery

Before the PC, we will collect information from you to complete your response to defendant’s demand for a Bill of Particulars, a document that adds “meat” to your Complaint, such as more information as to how your accident happened, your specific injuries, medical treatment, and any lost income.

Discovery is how the parties learn about the facts that the other side knows. Do the facts support plaintiff’s or defendant’s legal theory or defense? What do the experts have to say for each side?  The attorneys will begin exchanging documents, including providing defendant’s attorney with medical authorizations, so they can get your medical treatment records connected to your injury claims to evaluate your damages. The parties will take each other’s depositions or EBTs, essentially interviews about the case facts under oath.

We will also communicate with the defense attorneys or insurance adjuster(s) to see whether early settlement is possible.

(3) Deposition and Medical Exam

Your first real involvement in your case will be your deposition. A court reporter records all the attorney questions and your answers under oath.  We will prep you in advance, including explaining the rules of the game.

After your deposition, defendant’s expert physician will be allowed to do a short physical of you in his or her office. This called an Independent Medical Exam (IME), although it is not really independent because it is by defendant’s doctor. Depending on your injuries, there may be more than one IME, if your injuries involve different medical specialties, such as an orthopedics and neurology.

(4) Discovery Progress

Status or compliance conferences are held every few months so that the court can monitor the parties’ progress in completing discovery.

How quickly discovery moves depends upon: the facts of the case; number of documents to be exchanged; number of witnesses for depositions; the parties following the dates in the case scheduling orders; how aggressive the judge is in pushing cases; and the attorneys’ schedules.

(5) Trial Calendar

At discovery completion, we file a Note of Issue (“NOI”) ($95 fee) for a jury trial, which signals that your case is ready for trial. Within a limited time after the NOI filing, defendant may ask the court take action (called a “motion”) to have your case or some issues dismissed. Once the attorneys’ papers, for against the motion, are filed with the court, the court may schedule oral argument.  Sometime judges will make a decision (granted or denied) at oral argument but most likely will issue a written decision within one to several months.

If your case survives the motion, it will move slowly but surely toward jury selection. Some counties first require free mediation. In mediation, the court-appointed mediator evaluates the parties’ legal claims, evidence and demands and tries his or her best to get them to settle. Usually, only the attorneys attend the mediation but the parties are required to at least be available by telephone.

If the mediation fails, your case will be scheduled for jury selection. At this point, or even before, many attorneys hire outside mediators (typically through NAM or JAMS) for a fee to try to settle; this mediation is much more involved than the court’s mediation. If that mediation fails, since the COVID pandemic, the time to jury selection has been longer.

(6) Jury Selection

On a scheduled date, your case will be called for jury selection. But this does not always mean that the attorneys will be sent out to pick a jury on that date. Expert witnesses may be difficult to schedule and attorneys have their own scheduling conflicts. There may also be many older cases on the jury selection list ahead of yours and a limited number of trial judges. Or the jury selection judge may try to get the parties to settle.

Depending on the county where your case is, after many “jury selection” appearances, six months may pass by before the day the attorneys actually pick a jury. Once the jury is selected, a trial judge must be assigned; trial judges sometimes are not even available for days or weeks. But once a trial judge is assigned, the attorneys meet with the judge to discuss the availability of witnesses, evidence issues, and other matters. Then the judge will set a firm trial date and the trial will begin with the attorneys’ opening statements.

(7) Trial

From one point of view, going to trial is a failure because the parties were unable to reach a reasonable settlement. Sometimes, settlement is impossible due to unreasonable positions taken by one party or both sides.

Trial will be stressful. How long the trial takes depends on how complicated the facts are, the amount of evidence – documents and number of witnesses –  and the judge and witnesses’ schedules. The judge’s schedule is the most important factor, and a case that should take a few days or a week could stretch out to weeks, even months. Most cases still settle, whether after jury selection, right after plaintiff or defendant has presented all the evidence, or even when the judge has given the case to the jury to decide. Some judges push settlement throughout the trial while others take a hands off approach.

In civil cases, plaintiff must show the jury that his or her version of what happened was “more likely than not.” If there is no settlement after the attorneys’ closing arguments, the judge will read the law involving your claims to the jury and then the jury will go to the “juror’s room” to discuss the case and reach a verdict. Once the case goes to the jury, there is still a possibility of settling before it reaches a verdict. A verdict in your favor requires a “yes” vote of at least five jurors on both liability, i.e., defendant was legally responsible for your injuries, and on the amount awarded for your physical, emotional, and economic injuries.

(8) Post-trial

One or both parties may make a motion to the judge after the jury’s verdict to throw out the verdict or adjust the awarded damages up or down. Before the court makes a decision on the motion, there is another opportunity to settle. The judge’s decision might include adjusting awarded damages up or down by a set amount (and if this modification is not accepted by either party, a new trial as to damages only would be held). Or the judge could order a new trial for things that happened at trial.

An appeal from the jury’s decision or judge’s order is a separate topic requiring more extensive discussion.