The Claims and Litigation Process Explained

A lawsuit begins by filing a summons and complaint with the court and serving the defendant with a copy of the same. The defendant then has a limited time to serve an answer. In the event the defense attorney fails to serve an answer, we then have to apply to the court for a default judgment. Typically, the defendant will then serve his or her answer, which always denies all allegations of wrongdoing.

Thereafter, the plaintiff (the person suing) and the defendant (the person, party, or entity being sued) engage in discovery. This is the phase of the litigation where the defendant demands copies of every record or document related to your claim including police reports, witness statements, accident reports, and hospital, medical, health provider, school, employment, and income tax records.

Next, the defendant will typically demand and conduct an examination under oath of you. This is called a deposition, and you will be asked questions related to the accident and your injuries. Although it’s natural to be anxious, remember you were not at fault, you were not the wrongdoer. All that you will do is tell the truth. It is your lawyer’s job to spend the time and prepare you for the deposition, so you have a certain comfort level.

The questions will primarily be about the incident, your injuries, and the losses you sustained. We will also conduct discovery of the defendant, which includes obtaining records and taking the defendant’s deposition. The defendant may also demand that you undergo medical examination(s) by doctors the defendant’s insurance company chooses. These doctors are not there to help you; their sole purpose is to minimize or deny your injuries are serious or related to this accident. Please don’t be surprised by this, it is to be expected and an experienced attorney is familiar with these tactics and knows how to efficiently deal with this.

After all discovery is completed, we file the appropriate papers and place the case on the trial calendar. We have to wait our turn for trial. The waiting time for trial varies from county to county. While waiting for trial the judge will conduct one or more pre-trial conferences to try to settle the case. If the case does not settle at this point, we proceed to trial where a jury will determine fault and money damages.

The vast majority of all cases settle before going to trial, but it is important to have a law firm with the skill, experience, and financial resources to go to verdict in the event the insurance company is unreasonable. The insurance companies and defense lawyers know which law firms have a proven track record of success. Remember the reputation of your attorney makes a huge difference in the amount of money you may ultimately receive.

Steven Schwartzapfel is a New York Personal Injury attorney, and the founder of Schwartzapfel Lawyers, PC.  His record defending victims of fraud, injury, wrongdoing and negligence speaks for itself.

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