Most people have never been a party to a lawsuit and therefore have no ideal of what to expect after they have been injured due to the negligence of another. Thus, there is often a high level of apprehension, even fear, concerning the litigation process for these injured victims and their families. This is particularly true when the incident involves a serious injury or death and the losses are typically enormous. In these situations, a lawsuit seeking compensation for these extraordinary losses may be crucial to the well being of the victim and/or his or her family.
Pre-Lawsuit Screening and Investigation
The first step in any injury situation involves obtaining a thorough understanding of the facts and circumstances of the claim through a comprehensive investigation process. This typically starts with the initial phone call, e-mail or other communication with the client, at which time the most important facts concerning the incident and resulting injuries are obtained. Immediately thereafter, the investigation commences, which may include the following:
1. Incident document review
2. Witness interview
3. Physical evidence gathering/preserving (including photographic and videographic evidence)
4. Investigator retention
5. Expert witness retention
6. Determination of claim viability
7. Insurance company contact
Pre-Lawsuit Claim Preparation and Settlement Negotiiations
In all but the rarest instances, lawyers will attempt to settle a claim to determine whether a fair and reasonable settlement can be accomplished with the need to resort to litigation. In our experience, the earlier an experienced personal injury attorney has been involved in the case, the stronger the case will be and the more likely it is to settle for fair value without the necessity of litigation. In fact, when we are involved from the outset, we are able to settle the vast majority of the cases we handle without having to resort to litigation, saving the client money, time, and uncertainty.
Prior to commencing negotiations with the insurance company, the personal injury attorney will gather and organize all physical evidence concerning the underlying accident, including accident investigation reports, medical expert reports, liability expert reports (e.g. accident reconstructionists, etc), wage loss experts (e.g., economists), medical records and billings, and verification of lost wages. Once all of the claim information and documentation has been collected, organized and analyzed, a settlement letter will be prepared and an an appropriate settlement demand will be determined. Thereupon, the settlement demand package will be submitted to the insurance company. The demand package contains the settlement letter outlining the case facts and damages, including such things as an analysis of the fault of the negligent party and the injuries, treatment, pain and suffering, permanent limitation and disability, medical expenses and wage loss of the, past, present and future, of the injured victim, along with a demand for settlement of the claim.
After an initial response has been obtained from the insurance company, settlement negotiations will continue back and forth until the best offer has been obtained based upon the experience of the attorney.
Once the highest offer has been achieved, the attorney will provide the client a comprehensive analysis of the pros and cons of settlement based upon the final offer versus proceeding with litigation. In the event that the client wishes to resolve the matter, steps are taken to quickly effect settlement. If the client wishes to proceed with litigation, the case is filed and prosecuted.
The Complaint and the Answer
The litigation process begins when the plaintiff files a formal complaint or petition with a court and sends a copy of the complaint or petition to the defendant via court summons. The defendant then has a set period of time during which he or she needs to file with the court. In time frame in which a defendant has to file an answer varies from Missouri to Kansas and from court to court within those states.
Preparation and Discovery
Preparation of the case generally involves the attorneys for both the plaintiff and the defendant researching relevant laws and cases, gathering evidence, interviewing witnesses, and preparing what they consider to be valid legal arguments. Depending upon the case, much of this process will have already been accomplished during the pre-litigation phase of the case. The process known as discovery refers to the pretrial phase during which attorneys for the parties gather information, testimony, documents and other evidence from the other parties and from any third parties who may have information and documentation pertaining to the case. Discovery primarily includes interrogatories, which are written questions submitted to another party, requests for production of documents, which can be compelled through court intervention and subpoena, written requests for admissions, and depositions, which consist of verbal questions asked by a party’s attorney of another party or of some other person or representative of an entity that has some relationship to the case.
Motions are interactions by attorneys with the court before the trial actually begins during which the attorneys may ask for the court to rule on a variety of issue in the case, such as the admissibility of certain evidence, and the court may choose to agree with them or deny them. These judicial rulings can be as insignificant as settling a minor procedural dispute between the opposing counsel or can be as serious as a substantive ruling on the merits, such as a ruling on a summary judgment motion determining that the case can be determined on the basis of application of the law alone and that there are no material issues of fact that need to be presented to a jury.
Trial is the culmination of all of the other procedures leading up to it. Both attorneys present their case before the court or more typically try their case to a jury. Parties may call witnesses and present evidence. The general order is that the plaintiff presents first, followed by the defendant. There may be circumstances that allow for each of the parties to present additional evidence in the form of rebuttal evidence. After all of the evidence has been presented the each party is allowed a closing argument. Then either the judge or the jury (if there is a jury, they are briefed on the law relevant to the case) take time to examine the evidence and reach a decision. Once a decision has been made, typically the party that has won the trial generally will file a motion with the court in order to recover its court costs from the losing party.
After the decision has been made the losing party may choose to appeal and present the case in front of a higher court. In most instances, appeals generally are meant to make sure that the legal process was performed correctly. The appellate court may affirm or reverse the original decision if it sees fit or in some cases remand the case back to the lower court on a single issue more issues or even the entire case for further consideration.
Duration of the Litigation Process
The length of time a case can take varies widely and depends on many factors including:
- Preparation and Discovery
- The Nature of the Case
- Court Scheduling (i.e., the court’s docket)
Arbitration and Mediation; Alternatives to Litigation
Arbitration and Mediation both involve neutral third parties. Arbitration asks the third party to resolve the case for the two parties and normally ends with a private agreement and avoidance of trial. Arbitration can be binding or nonbinding. Mediation is typically presided over by a judge, retired judge, practicing attorney, or retired attorney, also known as the “mediator,” who meets with each party, initially together and then privately, in an effort to help the parties reach a settlement. Mediation is typically a non-binding process and is the more common procedure in personal injury cases in Missouri and Kansas. Mediation is sometimes court ordered and other times voluntary.
The litigation process can be a fairly complicated ordeal. Kansas City Accident Injury Attorneys has represented hundreds of personal injury, medical malpractice, and workers compensation claimants, both in and out of court, for over 15 years and has substantial experience with the litigation process. If you have any questions or would like to speak with the experienced attorneys at Kansas City Accident Injury Attorneys concerning your case, just call us a call for a FREE consultation with no obligation.