“Ask a Lawyer” – What to expect if you have an insurance claim or lawsuit.
Unless you have been a party to a lawsuit before, it is difficult to know what to expect. There is an understandable level of apprehension about the litigation process. We receive many questions about how litigation works and hope this explains the process.
The Screening & Investigatory Process
The first step in any lawsuit is to obtain the facts and conduct a thorough investigation. The investigatory stage includes: interviewing witnesses, gathering and preserving evidence, hiring experts, and contacting insurance companies. This stage can take up to six months. After that, a lawyer can make a final determination about whether a claim can be pursued.
Next, we engage in settlement negotiations with the responsible party or their insurance company to determine whether a fair settlement can be obtained without filing suit. In this stage, we collect and put together the physical evidence about the incident, documents regarding damages (including medical bills and lost wage documents) and necessary expert reports from physicians, economists, accident reconstructionists and others. An offer is sent setting forth the facts, explaining why the other party is responsible and providing documentation about damages and injuries. Negotiations continue until either a settlement is obtained or an impasse is reached.
The Litigation Process
We will move quickly to file a lawsuit in the event that a fair settlement cannot be negotiated. Generally, lawsuits in state court proceed in the following manner:
Complaint & Answer
A Complaint is filed which sets forth what happened and the damages sustained. The Complaint is personally served on each defendant. The Answer is the defendant’s response. Defendants have thirty days to file an Answer. Discovery begins once the Answer is served.
Discovery is the phase in which parties obtain information, testimony, documents & other evidence from each other and from third parties. Written discovery is exchanged between the parties including interrogatories and requests for documents. Depositions are taken of the parties, witnesses and experts. A deposition is when the attorneys ask questions under oath that are transcribed by a court reporter. Discovery generally lasts from nine months to one year.
Defendants may file motions after discovery is complete in an effort to convince the Court to dismiss some or all of the case. Once a motion is filed, the opposing party has time to respond. Scheduling of a hearing on the motion is in the complete control of the Court.
If the parties or the Court believes it would be helpful, a mediation may be scheduled. Mediation is a meeting between the parties, their attorneys and a mediator, who is a neutral attorney. Mediations are non-binding attempts to settle cases.
Unfortunately, there is no simple answer to how long it will take to get a trial setting. The caseloads of different courts and different judges vary. It will usually take a year or more. On average it takes between eighteen months to two years from filing to the start of trial.
The accident and injury lawyers at Nelson, Bryan & Cross represent clients in most areas including Motor Vehicle Accidents, Wrongful Death Cases, Personal Injury Actions, Social Security Disability, Defective Products, Insurance Disputes and Bad Faith, Fire Loss cases, Trucking Accidents, Worker’s Compensation, Drug Recalls, Employment Law and Property Damage Claims.
If you have questions about any legal issue, call Nelson, Bryan & Cross (205-387-7777) for a free consultation.
No representation is made that the quality of legal services to be performed is greater than the quality legal services performed by other lawyer