What is Involved in Personal Injury Litigation?
Litigation is not quite simply going to court for a trial. It’s a process rather than event. When attempts at reaching an amicable settlement of a case have failed, the filing of a lawsuit is the next step in the process. Statistics show us that most cases settle prior to the filing of a lawsuit. However, when that does not happen, you need to have a seasoned litigator in your corner.
In cases where liability is disputed, or if any offer made by the insurance company is insufficient to cover the loss, litigation is the only viable alternative.
Litigation commences with the filing of a lawsuit in a court of law. The initial paper is called a complaint. A complaint contains the plaintiff’s theory of recovery and sets forth the amount the plaintiff seeks in damages. As Attorney Eric T. Kirk will tell you.
Maryland has two court systems: district court for claims less than $30,000 and circuit court for claims of more than $30,000.
The procedures involved in circuit court cases are more involved. Once a complaint is filed, the clerk of court issues a summons and it is the plaintiff’s responsibility to have that summons and complaint served on the defendant or defendants. Once served with the papers, a defendant typically has 30 days to file a formal response called an answer. In this document, the defendant would set forth any defenses that they might have to the claim made against them.
Once this initial exchange of documents has taken place, the court will issue a scheduling order that is essentially the roadmap for the rest of the case.
The scheduling order will contain the deadlines for the completion of discovery, for the designation of expert witnesses, deadlines for pretrial motions, and will typically set the date of a settlement conference. The timing of trial varies greatly from jurisdiction to jurisdiction. A circuit court trial is generally set at least 8 months, and in some jurisdictions 12 months or more, from the date of the scheduling order. Obviously, with the advent of coronavirus and COVID-19 in 2020, we’ve seen that the conventional wisdom about time to trial has been turned on its head.
My best guess is that for case filed in 2020, you can add 4 to 5 months to the previously expected time parameters. I would also expect the results to vary quite greatly from jurisdiction to jurisdiction. Trial in circuit court is typically before a jury, although the parties may agree to have the case tried before a circuit court judge. If trial by jury is requested, a personal injury action is tried before six individuals from the community. Anyone who has served on jury duty knows the process. Alternates are selected in case one of the jurors becomes a ill. Jurors are screened through a process called voir dire, where the court asks specific questions submitted by the parties. Jurors may be challenged if the parties, or the court, believes they would be biased against one of the participants in the case. The parties are also allowed to strike a few jurors for essentially no reason. The number of strikes is limited.
Personal injury trials that arise from motor vehicle accidents typically take a couple of days to try. The issues are complex, injuries more severe, or where numerous expert witnesses are called, the trial can last much longer.
A personal injury case at its most basic consists of an opening statement by each side, the presentation of the plaintiff’s case, the presentation of the defense’s case, any rebuttal evidence offered by the plaintiff and a summation or closing statement by each side. The judge then instructions the jury on the applicable law that the judge then instructions were on the applicable law that they to apply to the facts. The jury then retires for deliberation. The deliberation process can take a few moments, many hours or many days. When the jurors have reached their conclusions, they announce their verdict initially to the court. A party not happy with the verdict can file an appeal from the Circuit Court action to the Court of Special Appeals. The time frame for the ultimate resolution of the case on appeal is typically on a scale of years.
While you can certainly handle a litigated case on your own, I would never recommend it.
District court litigation is a more streamlined process. A district court action also begins with the filing of a complaint. Here the defendant, once served, is not required to file a formal answer or defenses, but rather files a document called a notice of intention to defend. The discovery process is limited to the exchange of 15 written questions and answers called interrogatories. The time from a filing of a complaint to the initial trial date is typically about 90 days, depending on the jurisdiction. In district court, trials are held before a district court judge, who listens to and evaluates the evidence and then renders his or her verdict. A party not happy with the judge’s decision may file an appeal, but here the appeal is to circuit court.