The Personal Injury Litigation Process Explained

 

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The Personal Injury Litigation Process Explained
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The Personal Injury Litigation Process Explained Were you involved in a car accident? Are the insurance companies for both parties not offering enough money to pay off the medical bills, let alone attorneys fees, or compensate for your loss? Will your case be going to trial, or what will happen? Your case will have to go through the different stages of the litigation process. The first step of the litigation process is discovery. Discovery gives—both parties involved in the accident—the opportunity to ask the other sets of written questions called interrogatories. It is the information-gathering phase of the litigation process. The next step of the process is deposition.  A deposition is nothing like what you see on T.V where someone is pounding on the desk saying "you can't handle the truth"—or things of that nature. Instead, it's a professional meeting involving you as the plaintiff, the defense attorney asking you questions, and the court reporter who is there to take down the transcript of the questions and answers. The goal is to evaluate your case and decide if you are a good witness for trial and how to assess your case financially.  You're probably thinking, how long does the litigation process take before I get a compensation check? Ideally, the court system expects the process to take no longer than a year and a half from the day of filing the complaint. In practice, the litigation process could take approximately ten months. It all depends on how fast we go through each step of the litigation process.  For instance, It takes three to five months to schedule your case for mediation post-deposition. The court requires that your case goes to mediation after deposition before your case is allowed to go to trial (if unresolved during mediation). But what is mediation, and what can you expect? If your case is going to trial, what can you expect? Who's going to protect you and look out for your best interest? How long does it take?  Learn more in this episode of the David vs. Goliath podcast with elite personal injury lawyers Matt Dolman and Julia Dolman, Esq. They discuss all you need to know about the litigation process, from discoveries to mediation, and if your case is going to trial: what you can expect from trial preparation, the trial process, and everything that goes into getting a verdict.   

In this episode: 

  • [00:47] Matt Dolman introduces his guest, Julia Dolman Esq., and the topic of the day: the litigation process
  • [01:22] What is the first step after filing a personal injury lawsuit? Discovery: what it is and what it is not  
  • [06:03] After discovery, everything you need to know about deposition.  
  • [07:31] How long does the litigation process take? 
  • [09:45] Post-deposition is mediation. What does mediation entail? 
  • [12:20] After 90 days of filing a lawsuit, either party can serve a proposal for settlement—all you need to know about proposals for settlement. 
  • [15:28] If your case is unresolved after mediation, what happens next? Preparation for trial—everything involved from witnesses and exhibit lists to experts disclosure and more
  • [18::10] What to expect during the trial
  • [21:42] How often do personal injury lawsuits go to trial, and what role does the permanency threshold play? 
 

Transcript

Welcome to the fifth episode of the Dolman Law Group Podcast. I'm here with my business partner, best friend, wife, and trial lawyer of the Dolman Law Group miss Julia Dolman. Say hello, Julia to our audience.   Thank you for that introduction. Hello.   So Julia's a trial lawyer at Dolman Law Group. Tell us about what the litigation process is like. A lot of individuals come to me with this fear and trepidation that it's a scary process. Will I have to go to court? Is my case going to go to trial? Is this a big worry? What's going to happen? Take me through the process.   So here's the thing, a lot of people, first of all, insurance companies are cheap as we know, and if they did the right thing, we'd all be out of a job as personal injury attorneys. So when I first meet with a client is when we are filing a lawsuit on their behalf against the at fault party or against their own insurance company for their uninsured, underinsured motorist carrier. So when I meet with the client, the negotiations have failed in pursuit. The insurance company isn't offering enough money to even pay the medical bills, let alone attorneys fees costs, and to of course, compensate the client for their loss. So I meet with the client, the client comes in and the first questions I do get are people are nervous, they watch TV shows, they see the courtroom as it's portrayed in television.   And they say is my case going to trial? What's going to happen? So the first thing I like to explain is there are many processes and things and events that need to occur prior to a case ever seeing a courtroom. And so the first thing that I explain is that what will happen is that you'll go through the litigation process. So you'll first go through a process called discovery. And what that means is each party has an opportunity to ask the other sets of written questions called interrogatories. So what our office does is we help clients go through those questions. And it's basically like background information when you file a personal injury claim.   How personal are the questions?   So a lot of times people... The questions are, what I like to explain first is they're promulgated by the Florida Supreme Court. Meaning there were so many plaintiffs for personal injury car accident cases that the Florida Supreme Court said, Hey, listen, we're going to make every single claimant fill out the same 30 questions for each of these cases. So a lot of it is personal in the sense that they're asking background information, who are the doctors that you've treated with over the last 10 years,   Right.   Have you ever been convicted of a felony or a crime involving truth or dishonesty regardless of the punishment. And so people look at that and they say, well, Hey, listen, I was convicted of petty theft 20 years ago. What does that have to do with my claim for neck and back pain? And the reality is it really doesn't. I mean, does it affect the fact that you're making a complaint for neck pain? No, but what people need to understand, what I try to explain to them is that when you file a lawsuit, when you initiate litigation in the state of Florida, you open yourself up to the defense finding out things about you, basically everything about you, short of things that are obviously privileged by the attorney-client privilege and things of that nature. So the questions are personal in nature, but the scope of discovery in Florida is very broad. And so they're allowed to ask these types of inquiries.   What is off limits?   Well, off limits like I said, obviously they can't ask you anything that you've talked about with your attorney or anyone working in your attorneys office as that is privilege.   And explain that, the attorney-client privilege, how detailed is that? What goes into that?   The attorney-client privilege is very broad and it's taken very seriously by the courts. Obviously attorneys have fiduciary duty to their client,   Right.   And unless it's something where you tell your attorney that you're either planning to harm a third party or yourself as the client, attorneys are bound by their duty to you to keep everything that you say and everything that's actually involved in your case confidential at all times.   So then after we're done with discovery, let's just say, after we're done with interrogatories, what comes next?   So after interrogatory questions are answered, typically what happens behind the scenes, at least if you have a good defense attorney on the other side, is that they're going out and they're subpoenaing all your medical records. Of course, as a matter course, when we send out a demand in pre-litigation, we send out your medical records that are associated with the injuries that you're claiming. But the insurance companies also going to want to gather all of your prior medical records.   So in those interrogatories, when you talk about your primary care physician that you saw 10 years ago, guess what, the defense attorney's going to go out and they're going to send out a subpoena to all the doctors that they can find on you so that they can gather all that information. And really what they're doing there is they're trying to check off all their boxes to ensure that you don't have similar complaints in the past, or if you do so that they can evaluate your claim based on any pre existing issues that you might have. So after all that information is gathered, typically what they'll do is they'll set you for what's called a deposition.   Tell me about deposition. What goes into deposition? What can be expected, how scary is the process for someone who's never gone through this before?   So there's nothing, I always tell people there's nothing to be worried about. It's not like what you see in TV with someone pounding on the desk saying you can't handle the truth or things of that nature. Typically, it's very professional. A defense attorney is there simply to do a job and basically what a deposition is and we at Dolman Law Group, obviously always sit down and spend several hours with our clients going over deposition questions to expect, and the best ways to go about answering them and everything they need to know.   But typically what you'll have is you'll have yourself as the plaintiff and it'll be at a neutral location, such as a court reporter's office, and you'll have a court reporter there. That's the sonographer, they're the person taking down a transcript of the questions and answers. And then you'll have a defense attorney that's essentially asking you questions about your prior medical history, any prior personal injury claim that you might have had, the accident that you've been involved in that's the subject of this litigation, your medical treatment that you've received, the effects it's had on your case. Everything that they're going to want to know to evaluate your case and to decide whether or not you're going to present fairly at trial as a good witness and how to go ahead and financially evaluate your case as well.   So after the deposition, what can be expected?   So, and let me just back up, because a lot of times the first question that I get from people is how long is this process going to take?   Okay, how long will it take before I see a check miss Dolman?   I mean, clearly people want to know when they're going to be compensated for their loss. And there's two real answers to this question.   Right.   The first part is what I tell them is that ideally what the court system says is that from start to finish,   Yeah.   Start being the filing of the actual lawsuit and not the accident itself, but from start to finish, the process should ideally take a year and a half. Now what I have learned through our own practices,   Right.   And we cases as quickly as possible,   Yeah, we do.   Is that it takes approximately 10 months to get from filing of the complaint to your cases resolved either at mediation or shortly thereafter. And so to go back to your initial question, which is what happens after the deposition, it's a process called mediation that were then required by the courts to go to before you're allowed to go to trial.   So after you're done with the deposition, you notice the case for mediation.   Correct.   And then what happens? We obviously, it takes a little while to get that coordinated through both the mediator's calendar, defense lawyer and our calendars. And once we get that scheduled, usually how long after deposition does that occur?   So typically you're seeing a mediation scheduled between three and five months post deposition. And that's for Dolman Law Group here, again, we move cases as quick as possible because clearly we work off contingency fees and personal injury cases, meaning we don't make a living and get compensated until cases resolve. So I always tell people, look, it doesn't benefit me to take your file, meet with you, and then put it on a shelf for a year and let it sit and collect dust because personal injury claimants are not putting retainer agreements up front. We work when a case resolves, is when we get paid as well. So we move them as quick as possible. And typically, we're on the phone with defense attorneys trying to get mediation scheduled on the books and you'll see it around four to five months after your deposition to allow the defense the opportunity to, again, ensure that they're collecting all the evidence that you've produced from your deposition in terms of prior medical records and things of that nature.   Take me through the mediation itself. I walk into mediation, what can I expect that day? What happens? It sounds scary. Who's going to protect me and who's going to look out for my best interest and what do I do?   So the mediation-   They're all of 100 pounds. So what do you do there?   So what I always tell clients for mediation is actually, the best part of your case, because it's simply an informal settlement conference. It's the best opportunity to get your case resolved. And unlike your deposition, where you're sitting there and you're in the hot seat, you're answering questions that are personal to you. You're doing all the talking in your deposition. At the mediation, you're simply there. You don't actually have to speak as the plaintiff. It's simply a, like I said, a settlement conference. So basically what'll happen is you'll be in a conference room setting and you'll have your attorney on your behalf. And then you'll have a defense attorney or two, depending on how many are on your case and an adjuster from an insurance company who's the person with the check writing authority to resolve the case. And then you'll have a neutral third party who is the mediator. And the mediator has no interest in the outcome of your case. They are simply there-   And what's his job or her job?   Him or her, he or she, I should say is simply there to facilitate negotiations between the parties. So they're not a judge or an arbitrator. They're not a decision maker. They don't listen to evidence and decide the defendant was at fault or the plaintiff was partially at fault as well. They simply listen to both sides, presentation of the case. And then the parties break up into two separate rooms. And the mediator acts as, like I said, a facilitator of negotiations and goes back and forth between the parties with numbers, offers and demands and attempts to resolve the case.   How long does that process take?   So the mediation process itself can be anywhere between an hour and three or four, depending on the complexity of the case and depending on whether or not it's ever having a shot at resolution. If a defense comes in and an insurance company says, look, we're not paying you much of anything and we value the case more than that, there's not really much to talk about and the mediation will quickly impasse.   Okay. And I know this is kind of a general overview, so there's a lot more specific items that go into litigation itself. But take me through one item in particular that I'm often asked about. People ask, stop me all the time and say Matt, tell me what is a proposal for settlement? What does that mean? How is that a tool to get a case resolved? What are the implications of proposal for settlement mean? The other night in a grocery store and this nice lady stopped me and she said, I know you practice personal injury law. And I have a personal injury case going on right now with another car accident lawyer in town. And sadly she didn't choose us, but what is a proposal for settlement Mr.Dolman? I was like, talk to Julia about that. I mean, I knew the answer, but all kidding aside, explain.   So proposals for settlement are creatures of Florida statute.   Right.   And there's also a Florida rule of civil procedure, which governs a proposal for settlement or a PFS for short. And essentially what it is this. What the law says is that after 90 days in litigation, meaning 90 days after the lawsuit is filed, either party can serve upon the other what is called a proposal for settlement. Now, prior to proposals for settlement being filed, each party can always call up the other and make an offer to resolve a case or make a demand for policy limits or things of that nature. And the other party can say, Hey, no, I'm not interested in resolving, hang up the phone or Hey, no, we're not going to pay you that, move on. And there's no financial ramifications for declining those types of offers or those types of demands.   And that's where a proposal for settlement is distinguished. So in a proposal for settlement, if it's served upon you as the plaintiff or as the defendant, you have 30 days to accept the proposal. If you accept the proposal within 30 days, that's it, your case is settled. It's resolved. Everyone goes on their way and the case is done. If you do not accept the proposal and just for purposes of easy math, if I, as the plaintiff serve a proposal to the defendant in the amount of $10,000, the defendant has 30 days to accept the proposal. If they don't accept the proposal and you go to trial and you get a final judgment after a jury verdict that's 25% or more than the amount of the proposal, the defendant has to pay my attorney's fees and costs associated with trying the case from the date of filing the proposal.   So basically what the law does, it's punitive in nature. It has punishing a party who could have settled a case, had the opportunity to settle the case and didn't, makes the other party drag out the case and go to trial. And a jury of six peers agrees with me as the plaintiff, that my case is worth in excess of $10,000. And you should've, could've, and probably would've now resolved back in the day. So they're going to punish you by making you pay certain fees and costs.   And it is important to note that it works in the inverse in the sense that if a defendant filed a proposal for settlement to a plaintiff say $10,000, the defendant, if the defendant got a final judgment that was 75% or less than the amount of the proposal, so 74,099 or less, the plaintiff could be responsible for paying the defendant's fees and costs. So it's a cost and fee shifting statute that has legal and financial ramifications. So they're taken very seriously. And they're also a very good opportunity to get the case resolved, if the defense is not being amenable to negotiating after litigation.   We're at mediation, we cannot get the case resolved or a fruitful outcome. What can be done next? What happens next? When does the case go to trial?   So the next step in the case is to set the case for trial.   Right.   And once you get the case set for trial, the court will put out an order that has all the relevant dates that each party needs to abide by for certain things. So there's witness and exhibit lists that need to be exchanged, expert disclosures. Each party needs to tell the other side what experts they have hired. And that'll give each party the opportunity to depose those experts, to develop their case, to figure out what those opinions are going to be. And then just prepare the case for trial.   I mean, it's a lot of work that goes into it in terms of coming up with demonstrative exhibits to really kind of demonstrate to the jury, the extent of your plaintiff's injuries. If you've undergone a surgery often times we'll come up with demonstrative boards that really illustrate to the jury what has happened. If someone has a cervical fusion, we can talk about that all day long, but really what we have found and what studies show is beneficial is to really demonstrate through illustrations. People are visual learners, to the jury of what that means. So we come up with those things, we meet with our experts, we prepare our witnesses and we get the case ready to go to trial.   And what is that process of getting a case ready for trial? What does that mean?   Well, like I said, so you're going to want to take the depositions of the experts that are involved on the other side. You're going to want to explain to your client really what to expect in terms of, there is no guarantee as to an outcome. Every case is going to have pros and every case is going to have cons. But when you are left with a position that the insurance company has left you with no choice, they're not making a sufficient offer, and you're forced to go to trial, you present the case as best possible on behalf of your client. We will conduct focus groups, which is basically essentially paying just members of the community to sit down and to hear the facts of the case. And what it does for us as trial lawyers is it really helps center on what are some of the issues that a potential juror might take issue with?   Because as lawyers, sometimes we get caught up, we've been living with these cases and working with them for years. We know what we think are the pros and cons, but really what might a juror see? So we'll focus group the case, we'll get ideas from people in the community, because as I always remind clients, jurors are simply six people cross section of the community. It could be, you go to 7-Eleven, and it's the six people that are standing in line before you. Those could be your potential jurors. So what we might think is very important, a juror might potentially discount. So it's important to kind of gain that information so that we can tailor our theory of the case accordingly.   Okay. And what can we expect at trial itself?   So at trial itself, what'll happen first is there'll be a day of what's called voir dire, which is when you actually pick or exclude members of the jury. So oftentimes in Pinellas County, you'll get a panel of 24 individuals that have been called for jury duty. And again, these are people that are 18 years or older without felony convictions that simply have a driver's license. So it could be again, look around six people. Those could be people on your panel. And essentially what we're allowed to do as trial lawyers is we're allowed to conduct an examination of the panel. So what we want to do obviously as plaintiff's lawyers is we want to figure out, Hey, how many people do we have on this panel that simply hate plaintiffs, hate car accident cases, are activists for tort reform, just are simply against us.   So what we try to do is we try to parse out some of the bias of some of these individuals that are on the panel. And just really try to determine who we might be able to remove from the panel for cause simply because they have prejudice and things against the case that they can't set aside because we need a fair and impartial jural panel to try the case. So that's day one. That's number one thing when we get to trial is what we're trying to do is we're trying to pick those six people and one alternate that's going to serve as our jury, as our decision making panel.   And then as the trial goes on, what do we expect?   So as the trial goes on, you're going to hear a presentation of witnesses. As plaintiff, it is our burden of proof. We have the burden of proof to walk in to prove every element of our case. So we need to prove negligence. We need to prove that someone else is at fault for causing the crash or in a slip and fall, that there was a duty that was breached by a landowner or someone that owes an duty to keep a premise safe for the occupants. And we need to prove causation, obviously that the incident caused the injuries you're complaining of. And we need to prove damages, that you have out-of-pocket medical expenses and that you've been harmed and that you need to be compensated. So because it's the plaintiff's burden of proof, we put on our evidence first.   So you'll hear from witnesses, which can be your treating physicians. If you've had a surgery, it can be the surgeon that's performed the operation on you that's going to come in and testify to the jury that these are the things that he's done for you, that these are the treatments that you might need moving forward. And then of course we need doctor to opine that yes, indeed it is this incident, this accident that has caused these injuries you're complaining of. So you'll hear from experts, treating physicians, potentially radiologists. If it's a disputed liability case, you'll hear from accident reconstructionists or other types of liability experts, basically proving every element of your case. And then as the plaintiff, it's obviously your trial, you're going to be up on the stand and you're going to be talking about your injuries, talking about your accident, and you are going to be giving that testimony on your behalf to explain to the jury everything that's happened to you and why it is that you are where you are.   What's the typical life of a jury trial?   In a car accident case here in Florida, usually depending on, again, the amount of experts four to five days, really three to five. I mean, depending on the amount of experts. Sometimes a defense will go overboard. And even though we see it as a very streamlined case, defense might hire five experts for some reason. So depending on what the defense is for the particular case, will really dictate how long the trial goes.   How often do cases go to trial?   It really depends. I mean, the reality is that a lot of cases are resolving prior to trial, car accident cases in Florida. A lot of that has to do with the proposals for settlement, the risks, and essentially the cost benefit of trying a case because with car accidents in Florida, and if you look at different verdicts, the issue is that there's a particular Florida statute that dictates what you need to prove in order to obtain non-economic damages. So what I mean by that is in Florida, oftentimes a jury will award you your economic damages. That's your past medical expenses, your lost wages, things that are hard and fast numbers, but in order to obtain non-economic damages, that's your pain and suffer, those are those intangible losses, loss of enjoyment of life, mental anguish, pain and suffering. Those, you don't have a hard and fast number.   So what the legislature has done is they've actually, and they call it the permanency threshold, they've articulated in a statute that in order to obtain those types of damages, you need to prove permanency. You need to prove in a car accident case in Florida, that you have suffered a permanent injury, which can be loss of use of a limb, loss of an importantly bodily function, permanent disfigurement, other than scarring, or the catchall is any other permanent injury within a degree of medical probability. So they make it difficult in that you have to prove permanency in order to obtain those other types of damages. And because of that, the insurance company uses that to evaluate the case. And so when you get an offer from an insurance company, you really need to look at, this is what the offer means to me today, versus if I go to trial and my attorney spends 30 to $50,000 trying a case, but the jury only gives me my past medical bills and my economic damages. Well, where does that leave me at the end of the day?   Understood. Well, appreciate it. Thank you so much for your time today, Julia.   You're very welcome.   And that concludes,   Pleasure to be here.   Episode number five of the Dolman Law Group Podcast. Thank you so much.   Thank you.

💡 Meet Your Host 💡

Name Matthew A. Dolman, Esq. Title: Partner at Dolman Law Group Accident Injury Lawyers, PA Specialty: Matt is a nationally recognized insurance and personal injury attorney and focuses much of his practice on the litigation of catastrophic injury and wrongful death cases throughout Florida.  Connect: LinkedIn | Twitter | Instagram   

💡 Featured Guest 💡

Name Julia Dolman, Esq. Title: Attorney at Dolman Law Group Accident Injury Lawyers, PA Specialty: Julia practices in the areas of personal injury, trucking and motorcycle accidents, traumatic brain injury, wrongful death and insurance carrier bad faith. She is dedicated to serving her clients with the utmost degree of zeal, diligence and integrity. Connect:  LinkedIn  

🔑 Relevant Resources 🔑

The insights and views presented in “David vs. Goliath” are for general information purposes only and should not be taken as legal advice for any individual case or situation. The information presented is not a substitute for consulting with an attorney. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. Any case result information provided on any portion of this podcast should not be understood as a promise of any particular result in a future case. Dolman Law Group Accident Injury Lawyers: Big firm results, small firm personal attention.