Understanding The Steps in the Litigation Process

1. Is there a deadline to file a lawsuit?

Answer: Yes.  Statutes of limitation passed by our legislature limit the time to file a lawsuit in all types of cases.  The length of time varies depending on the type of case.  In most instances you have one year from the date of the incident causing injury to bring a lawsuit, although shorter time limitations apply in some types of cases.  There are other laws known as “statutes of repose” that provide absolute deadlines on filing lawsuits.  This type of law may result in you losing your rights before you know you have suffered an injury.  Given the many factors that must be considered in determining your specific deadline to file a lawsuit, the best course of action if you believe you have a potential legal action is to contact a lawyer immediately. Our firm will meet with you at no charge to help you determine if you have a claim and help you understand what deadline for taking action actually applies in your case.

2. How do you initiate a lawsuit?

Answer: A lawsuit is initiated by the filing of a “complaint.”  A complaint identifies the persons or entities being sued.   It includes a short and plain statement of the pertinent facts, outlines the legal claims, and states the types of damages that resulted from the negligence of another person. The person who files a lawsuit is called a “plaintiff.”

3. What happens after the lawsuit is filed?

Answer: Once a lawsuit is filed, the party being sued (the “defendant”) must be provided with a copy of the lawsuit.  There are technical requirements for the timing and manner of serving notice of the lawsuit on the defendant.  Once the person sued is given proper notice, the person will have a period of time to file a response to the complaint.  The response is called an “answer.”  The next step is called “discovery.”

4. What is discovery?

Answer: The discovery phase of a lawsuit is the phase during which each side finds out about the other side’s claims and defenses. The various methods of gaining this information are often referred to as tools of discovery or simply “Discovery.” These methods include depositions, interrogatories, requests for production, medical evaluations, requests for admissions, and subpoenas. Each of these discovery tools is described below.

5. What are depositions?

Answer: A deposition is testimony given by a plaintiff, a defendant or witness in a lawsuit before the case actually goes to trial. The person giving the statement is called the deponent. At the beginning of the deposition the deponent is asked to swear or affirm that the statement will be truthful.   The deposition is taken by a lawyer asking questions of the deponent.   Usually, the lawyer for the plaintiff will take the deposition of the defendant and the lawyer for the defendant will take the deposition of the plaintiff.   Either lawyer may take the deposition of other people who have knowledge about facts important in the case.

6. What are interrogatories?

Answer: Interrogatories are written questions sent from one party in a lawsuit to an opposing party about issues related to the lawsuit.  For example, in a lawsuit arising from a motor vehicle collision, each driver may send interrogatories to the other ask for driving histories, including whether the opposing driver has ever received a driving citation. The party responding to interrogatories must sign a statement swearing or affirming that the responses to the interrogatories are true.

7. What are requests for production of documents?

Answer: Requests for production of documents are written requests sent from one party in a lawsuit to an opposing party for the production of documents related to the issues presented by the lawsuit. For example, in a lawsuit arising from a motor vehicle collision, each driver may ask the other driver to produce a copy of the driver’s licenses.

8. Why is my medical history important?

Answer: Your medical history is important in any case in which you are claiming to have suffered a physical or psychological injury as a result of someone else’s negligent or intentional act. Your medical history establishes the baseline of your physical or psychological well being before the injury. You can only recover in the lawsuit for the injury caused by the act or omission of the responsible person. You may not recover damages for physical and mental suffering or medical care necessitated by preexisting conditions. When a preexisting condition is made worse you can recover damages for the worsening of the condition. Your medical history will be important to proving this claim.

9. What are Medical Evaluations?

Answer: If your medical well being is in question in a case the opposing party may request that you undergo a medical evaluation by a doctor of their choosing.   That doctor will offer his or her opinion about the nature and extent of your injuries and the impact of those injuries on your later life. That doctor may disagree with your doctor’s opinion as to the nature and extent of your injuries, and the jury will hear from both doctors at trial.

10. What are requests for admissions?

Answer: During the discovery phase of a lawsuit one party may send to an opposing party a list of facts and request that the receiving party admit the truth or accuracy of those facts. For example, in a lawsuit arising from an automobile collision one party may request that the other party admit that date, time and location of the collision. Requests for Admission are a discovery tool used to narrow the issues that are in dispute in the case.

11. What are subpoenas?

Answer: Subpoenas are legal papers issued by a court requiring the appearance or production of a person or thing at a deposition or hearing. A subpoena may be served on a person and require the appearance of that person to give a deposition or appear in open court on a specific date and time. Subpoenas may also be served on a person or business and require that documents or things be produced for inspection and copying on a specific date and time.

12. What is a scheduling order?

Answer: A scheduling order is an order entered by a court that sets certain deadlines in case such as the date depositions will be completed and the date the trial will be held.

13. What are “proof” depositions?

Answer: Depositions are sworn statements taken from a party or witness in a lawsuit and they are often part of the discovery process. The person giving the statement is called the deponent. At the beginning of the deposition the deponent is asked to swear or affirm that the statement will be truthful. The deposition is taken by a lawyer asking questions of the deponent. 

“Proof” depositions are taken and presented at trial as evidence in lieu of having the witness testify in person. A “Proof” deposition may be taken for the convenience of the witness who cannot otherwise appear in person at trial or as a cost saving mechanism to avoid the expense of bringing the witness to testify live at trial. Certain people, such as doctors, are not required to come to trial to testify about their care and treatment of a patient who has brought a lawsuit and thus they testify at trial via a proof deposition.

14. How long does discovery last?

Answer: It depends on the type of case, the number of parties to the lawsuit, the number of lawyers involved, the type of injuries suffered by the plaintiff and how quickly the plaintiff recovers from those injuries, the willingness and ability of the plaintiff’s lawyer to push the case forward, the willingness of the defense counsel to cooperate in scheduling depositions, the willingness of the parties to answer interrogatories and other discovery devices on time, the willingness of the court to intervene and impose and make all parties follow a scheduling order, and a host of other factors.

15. What is a pre-trial conference?

Answer: Generally, conferences are held prior to a trial so that the Judge and lawyers can resolve disputes about the admissibility of evidence, the timing of witness testimony, and other logistical matters. Pre-trial conferences can greatly streamline the progression of a trial thereby minimizing the financial cost on the parties, witnesses, jurors and the Court.

16. What are motions in limine?

Answer: Motions in limine are requests by the parties to the Court for rulings regarding the admissibility of evidence in advance of trial. 

17. When will the trial occur?

Answer: Trial dates are set by the Court. When a trial will be held in any particular case depends on many factors including what court the case is filed in, what county or district the case is filed in, the type of case, the complexity of the case, whether the case is a jury trial or a non-jury trial, and how long the trial will last. 

18. Will my case be settled before trial?

Answer: Now days, most cases do not go all the way to trial. 

These statistics will give you an idea of how many cases are actually tried. In the one-year period ending June 30, 2009, there were about 11,000 lawsuits filed involving all types of personal injury and wrongful death in the state of Tennessee. (Many other cases were settled before a lawsuit was even filed; those numbers are not publicly available.) However, there were only 260 jury trials and 348 non-jury trials in personal injury and wrongful death cases during that same period. These statistics are about the same from year to year, and thus it is fair to say that only about 5% percent of personal injury and wrongful death cases in which lawsuits are filed actually go to trial.

It is difficult to predict, however, whether any particular case will settle. In addition, our experience is that a case is more likely to settle at a higher dollar value if the insurance company (a) sees that the case has been prepare for trial and (b) has been appropriately prepared by lawyers who it knows are not afraid to go to trial. Thus, our office prepares all cases as if the case is going to be tried. Quite frankly, this means we invest more time and money into cases than many other lawyers, but we believe that this approach leads to better results for our clients.

19.  I think I have a personal injury or wrongful death case. What should I do?

Answer: You should contact a lawyer as soon as possible. It is important that evidence be gathered to determine the validity of the claim. The insurance company for the person or company that caused the accident will be working hard to gather that evidence, and you should have a lawyer doing the same.

© 2010 Law Offices of John Day P.C.

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About John A. Day

I am a fifty-three year old lawyer who is fascinated by the law of torts. I have studied the field for over twenty-nine years. I represent plaintiffs in personal injury and wrongful death cases.

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