Let's play out a quick hypothetical: You've been in an accident in Virginia, hired an attorney, and the attorney (who hopefully is an experienced personal injury attorney) has attempted to get your case settled. Unfortunately, the insurance company is unreasonable. For this reason or that reason, they've decided to offer to pay your claim for cents on the dollar.
If you’ve got a good attorney, his or her response will likely be, “Ok, we’ll just go to court!”
While you may agree, you may still be wondering, “what does that mean?" You want to know how court works in plain language. Well, here's my attempt to help you out!
When you're unable to reach a settlement with your insurance company, your next option is to file a lawsuit (also referred to as a Complaint) against the defendant. By submitting a lawsuit, you’re sending a message to the Court (and the insurance company) that the other side isn’t being reasonable. Filing a lawsuit means submitting a claim to the Court outlining what your case is about and making a demand for money.
Once your case is filed in Virginia, the defendant has to be served with the lawsuit. Serving the defendant means providing that person official notice of the lawsuit. Service is completed when your attorney gives your filed lawsuit to either law enforcement or a private process server who physically delivers the lawsuit to the defendant.
The service process can be relatively simple, but sometimes complications arise. For instance, if the defendant moved from the address your attorney has on file, it can be difficult finding the defendant. Or if the defendant is not a state resident, special steps have to be taken to serve him/her. Serving the defendant usually takes a couple of weeks, but can take longer if your attorney cannot locate him/her.
First Steps After Filing: Answers, Discovery, and Interrogatories
Well, a few things will happen all at once. Upon service, the defendant will file his/her Answer to your complaint. An Answer is what it sounds like. The defendant answers your lawsuit, usually denying your allegations. In Virginia, the defendant has twenty-one (21) days to answer your lawsuit.
Along with the defendant's Answer, he/she usually begins the process of Discovery. Discovery is also what it sounds like and is the process by which the defendant takes steps to discover facts about your claim, beyond what was in the lawsuit.
Discovery is a multi-pronged approach. Usually, the first method of discovery is Interrogatories. Interrogatories are questions about your claim, accident history, medical history, witnesses you have, your treating and expert doctors, lost wage information (assuming you are claiming lost wages), etc. When you answer Interrogatories, you must affirm that you are telling the truth. Just like the defendant had 21 days to answer your lawsuit, you have 21 days to respond to interrogatories.
Along with Interrogatories, the defendant, usually, sends Requests for Production of Documents. These are requests for documents that you have supporting your claim, such as medical and billing records, accident reports, photographs, tax records (for lost wages), and other documents related to your claim. You will have 21 days to answer.
In response, your attorney will send his or her own written set of discovery to the defendant.
Setting a Trial Date and Getting Depositions
While this initial phase of discovery is taking place, the Court will want to set a trial date. This is a date where you actually will present your case before a judge or jury, assuming you don't settle your case. In Northern Virginia, your trial date is usually set around nine months to one year from serving your complaint. The benefit of obtaining a trial date is that, assuming everything stays on track, you have an end date for your case.
After both sides have answered written discovery, the next steps are Depositions. A deposition is when you and other witnesses, the attorneys, and a court reporter sitting in a room. The opposing attorney asks you questions about your case (many of which are similar to those asked of you in written discovery), which provides him/her an opportunity to learn more about your case.
In deposing you, the defense attorney is doing several things. First, they are asking more specific questions about your case based upon answers to your written discovery. Think back to when you were in school. The teacher would tell you to read a particular chapter in your textbook. But that chapter would raise more questions in your mind, so you’d go to the teacher and ask more specific questions. It’s the same process.
Second, the attorney is assessing whether you’d be a good witness in court. Every person makes different first impressions. Some are better with words; some are good at keeping calm, while others are exactly the opposite. While based on only the brief time together, the attorney is trying to figure out whether a judge or a jury would "like" you. Sadly, likability does play an important role in any given case. Therefore, before depositions, it’s important that you meet with your attorney to prepare and, when all else fails, be nice. Even if the opposing attorney is a jerk, they know that nice witnesses are hard to beat.
Among other things, the opposing attorney is also crystalizing his/her view of the case to prepare a report to his insurance company as to what your case is worth. From my understanding, shortly after the deposition, most attorneys prepare their report, with your testimony fresh in their mind. This is yet another reason to be well prepared and nice during your deposition.
Either at the same time or close in time, your attorney will likely depose the defendant. In doing so, your attorney's inquiry is usually focused on why your car accident happened. He/she first wants to make sure they aren't claiming it’s your fault, but also whether the defendant was drunk, texting, etc., or other aggravating factors causing the accident.
Independent Medical Examiners and Expert Designations
If your case is one in which your injuries have completely resolved and you aren’t claiming permanent injury, that’s generally the involvement you’ll have with discovery. However, if your injuries are still ongoing or permanent, the defense will likely require you to undergo an independent medical examination (IME). While IMEs are supposed to be independent, in reality, you are required to go to an appropriately specialized medical provider hired by the defense, to allow them an opportunity to evaluate your injuries. It’s safe to assume the IME doctor will produce a negative report as to your claim. In particular, the doctor will state that you’re not permanently injured, your pain shouldn’t still be there, etc.
While IMEs seem inherently unfair, they are a part of personal injury claims. Don't be offended or surprised. It's simply the insurance company giving you a reason to quit or settle your claim. There can be more than one IME. Your attorney will review any IME requests and oppose them in court, if possible, but the insurance company has the right to them.
The discovery process, usually, takes several months. In many cases, discovery is pushed back towards the trial date, given that's how insurance companies operate.
Once discovery is completed, you and your attorney will gear up for trial. Every case is different in complexity, the number of witnesses, exhibits to be used, etc. Also, every attorney has their own method of trial preparation. Generally, however, several months before trial, you and your attorney will discuss what witnesses will be required and the attorney will reach out to ensure availability for trial, make sure the witnesses have the necessary information to provide to a court or jury, and give the witness an idea of how trials work and what will be asked of them.
While you likely won’t be completely aware of what your attorney is doing, as trial draws closer, the attorney is also strategizing about witnesses and evidence. Additionally, if there are any legal issues that need to be researched that may come up at trial, this is the time to do it.
While jurisdictions may differ, in Northern Virginia, generally, your attorney is required to disclose what doctors and treatment providers will be testifying on your behalf 90 days before trial. By way of Expert Designations, your attorney files a report with the Court and the defense outlining exactly what your doctors and providers will testify about. Their testimony relates to your injuries, their relation to your accident, and treatment provided as a result. In response, the defense must disclose their expert designations 60days before trial.
While by now most discovery is complete, the Court officially ends the discovery process 30 days before trial. If there is evidence or witnesses you want to use in support of your case, these must be disclosed before the discovery deadline or they simply cannot be used.
Witnesses and Exhibits
Fifteen days before trial, your attorney is required to file your Witness and Exhibit List. This too is self-explanatory. It’s a list that lets the Court and defense know exactly what witnesses and evidence you intend to use at trial. If there is a witness or evidence left off this list, it, too, will not be allowed at trial.
The last weeks before trial can be very stressful. During these short days, you are left preparing for trial, which is a unique event. You will also likely receive at least some communication from the insurance company as to settlement. In reality, most cases that are filed settle within the weeks before trial. And if they don’t, you will find yourself in Court.
That should clear up some confusion as to what it means to “take your case to Court.” With this timeline, you should have a basic understanding of the process.