The Lawsuit Phase
Complaint & Answer
Lawyers are in the business of getting justice for their clients, but you need to know that, whether you do it yourself, or whether you hire a lawyer, filing suit is ultimately a business and financial decision as well. Is it worth it for you, to invest the money for filing fees, copies of records, expert witness and deposition costs? Is the time worthwhile, given the likelihood of recovery, and the likely amount? An attorney must go through the same analysis, in deciding whether to file suit.
Once you have made the decision to file suit, you must prepare and file a document called a “Complaint”. These “Complaint” documents vary in what information it must contain; those variations in minimum standards for content will vary, depending on whatever one might be suing for.
While it is not absolutely necessary to have a lawyer prepare and file a complaint, it is probably best that you do so; describing the minimum content, or “pleading” requirements, is beyond the scope of an attorney law firm website like this, designed to provide general information only. This information is available, for those seeking to prepare their own lawsuits; again, this is a step I do not recommend for anyone, even an experienced personal injury attorney who him/herself gets involved in an accident.
The Complaint must be served on the person being sued, aka “the Defendant”, and must be answered within 21-28 days, depending on whether it was mailed, or personally served.
Once there is an exchange of “complaint” and “answer”, the parties then engage in an exchange of “discovery”, referring to written questions, document requests, depositions, and “Requests for Admission” (by which one side asks the other to admit that certain facts or documents are authentic and accurate). This is unlike a criminal matter, where you have the option of not “testifying against yourself”.
In “civil litigation” matters, where one side is typically suing for money, neither side has the option of refusing to answer proper, non-privileged questions. If the “other side’s lawyer” asks you what I call the “$64,000.00 Question”, the one you cannot avoid, and for which a truthful response might torpedo your case — you have no choice but to answer.
What then, is a proper, non-privileged question? Again, this will vary with the type of case, and scenario. An experienced lawyer will know how to answer those “$64,000.00 Questions”, and will also know what rules can be properly used, to put your case in the best possible light. Discovery is a broad subject, of which hundreds, if not thousands of detailed books have been written, outlining what is permitted in discovery, and what is not; it is simply beyond the scope of a general information website like this.
Normally, each side will have 28 days to respond to discovery from the other side, and depositions will also be set and conducted during the discovery period; depositions are live question and answer sessions, under oath, sometimes done on videotape.
I view depositions as the single most important event in the lawsuit process, so much so, that I have never produced a witness for deposition, in nearly 30 years of practice, without extensive pre-deposition preparation. Depositions, by themselves, justify whatever fee you need to pay an attorney, whether in an accident case, or in any other type of matter. Deposition practice is a subject unto itself, and I would strongly urge you to get representation, if you are already in litigation, and without a lawyer, heading into depositions.
Any witness can be deposed, the “Plaintiff” (the person suing), the “Defendant” (the person/company being sued), or an independent witness (someone who is not a party at all).
Courts will usually set up a deadline to have all discovery completed. Lawsuits are not open-ended propositions. Usually, discovery lasts 90-120 days.
You will need to file lists of anticipated witnesses and Exhibits to be used at time of trial. Failure to do so, within certain time parameters, may prevent you from using those persons, or exhibits, at time of trial.
The Michigan Court Rules currently provide for a procedure called “Case Evaluation”, in which three lawyers from the county in which the matter is filed, sit in judgment of the matter, and render a non-binding “award”, which I think is better described as an “award-recommendation”; it is the first time that strangers (i.e., persons not involved with the case) have an opportunity to weigh in.
“Case Evaluation” award-recommendations are not a real “awards” of money, although they could be, if both sides agree to accept the figure. There is a 28-day period of time within which both parties must accept. A Case Evaluation award-recommendation can be rejected either by sending in word of rejection, or by failing to respond within the 28 days. Therefore, acceptances must be filed in writing, within 28 days, and as you will see below, you will need to be able to prove that you filed that award-recommendation acceptance, within 28 days.
The reason it becomes so important, is because if a party rejects a Case Evaluation award-recommendation, and does not improve their position, by 10% or more, at time of trial, they will then be responsible for the payment of “Case Evaluation sanctions”, largely consisting of attorneys fees incurred by the other side. These legal fee sanctions could be in the tens of thousands of dollars; in an accident matter, Case Evaluation sanction claims are usually in the $25,000.00 to $40,000.00 range.
Only an experienced lawyer will know when to run the risk of incurring Case Evaluation sanctions, and when the odds are such that it makes sense to file an “acceptance” of even a low award-recommendation.
A “settlement conference” is a mandatory meeting of the parties, with the trial judge. You, as the injured person, need to appear personally, as does the insurance adjuster, who has access to the funds needed to settle the case. Courts want to avoid the situation of not being able to settle cases, because one party or the other is not present. Accordingly, everyone needs to appear.
In former practice, judges were quite effective in “strong-arming” the parties into a settlement. Unfortunately, incur Michigan practice, that does not happen much anymore, and almost uniformly, settlement judges are referring matters out for “facilitation”. In a “facilitation” the parties are essentially forced to spend money to hire a private attorney, who then does what judges used to do at settlement conferences, as part of their job.
Both at settlement conferences and at facilitations, cases can either settle or not settle. One of the options available to a trial judge at a settlement conference, is merely to set the matter down for trial. If that happens, the parties merely prepare for a jury trial at the appointed time; I will have a few words on that below. In the event a facilitation is unsuccessful in settling the case, the matter is simply referred back to the trial judge, who then set a trial date.
There are significant costs and investments of time necessary to prepare case for trial. If you do retain counsel, he/she should be prepared for trial at every step of the process. Even though you may not want to try the case, and perhaps they may not either, preparation for a real trial, is what really puts your case into the best position for the best settlement possible.
By the time your case gets to trial setting, it has been in system likely for 12-16 months, in current Michigan practice. You can see that a tremendous amount of preparation has gone into the matter, by this time. The reason for this is that juries can only sit for a few days at a time (have you ever been called for jury duty?), and your case must be prepared by the time they sit down to consider it.
Additionally, in the short period between the final settlement conference and trial date, pretrial “evidence depositions” are taking, typically of your treating physicians. These are actual depositions, by which your treating doctors share their opinions; those depositions are either then read to the jury, or they are put on videotape, and that video is played for the jury.
While your doctors are genuinely concerned about your treatment and healing, you must understand that they do not appear for these “evidence depositions”, without being paid first for their time. Typically, these pretrial evidence depositions run about $2500 each. It is a cost that you need to consider, as you are thinking about any pretrial settlement offer made by the insurance company.
I am not to go into detail about trial practice here, except to say that as the plaintiff (i.e., the one suing the other person), you and I have the burden of proving our case. Our burden of proof is not “beyond a reasonable doubt”, as would be in a criminal case for the prosecutor. Instead, our burden of proof is “more likely than not”; while this is an easier burden to our side, it is still our burden, and juries regularly find against injured plaintiffs, whom they feel did not meet that burden.
Trial consists of opening statements, and the plaintiff’s case (including presentation of witnesses and documentary evidence), at least until such time as the plaintiff “rests their case”. Once they do so, the defendant, whom you are suing, then presents their case; is important to remember that they had no burden of proof at all, and need only present a case which makes it appear impossible for our side to sustain its burden of proof.
Complicated stuff indeed. This is why your case demands experienced personal injury counsel.
Assuming that you and I have won a verdict from the jury, we then need to get paid.
As a courtesy, release documents are sometimes signed after a jury trial, although there is no requirement of such. Indeed, in a substantial portion, if not the majority of cases going to a verdict, a judgment is entered. The defendant and his/her insurance, and then have a period of time within which to satisfy that judgment. Typically, and particularly where insurance is involved, judgments are usually satisfied within the requisite period of time.
However, sometimes that does not happen. There are post judgment procedures available to help an injured person who is having difficulty in collecting from and at fault driver or their insurance company. One such remedy is a “creditors exam”, in which the at fault party is brought in for what is essentially a deposition, and their cross examined on their bank accounts, assets, property, and income. In other words, in a creditors exam, the end goal is finding out where the money is, and how it can be obtained. Again, these are extraordinarily rare, in situations where there is insurance money available.
What Happens If You Lose At Trial?
Trials are win-loss events; one side wins, and the other side loses. Not only is it possible for you to lose your trial if you go unrepresented, but it is possible as well, even for an experienced attorney to suffer a loss at trial.
Any lawyer tells you otherwise is lying to you.
So what happens if you lose at trial?
If the judge has made errors of law in admitting evidence, or giving jury instructions, erroneously, there is a basis for appeal. Contrary to popular belief, just because a jury finds against you, does not mean that you have a right to appeal. The rare exception to this is where a jury’s finding is so egregiously wrong, that no reasonable jury would have found as they did, on the facts are case.
An appeal is started usually, by a notice filed within 21 days of the final order; what constitutes a “final order”, is one of those subjects beyond the scope of a general information websites such as this. Indeed, many experienced attorneys avoid appellate work, because it requires a certain specialization. It also requires thorough knowledge of appellate procedure and rather persnickety format requirements; if not followed “to a T” your appeal could be dismissed, no matter how meritorious.
It is possible to waive appeals, in exchange for a dismissal with prejudice. “With prejudice” means that the case cannot be re-filed; a “with prejudice” dismissal is the gold standard Holy Grail for insurance companies. That is what they want, even to the point, earlier on in the process, of being willing to pay for it.
Because there are very strict time periods for appeals, you and your lawyer need to be mindful of those time limits, as you attempt to negotiate a dismissal with prejudice, in exchange for waiver of appeal.
The End of Representation
It should not be a matter of guesswork. The lawyer should write you a letter, either enclosing a check, or telling you that they have taken your case as far as they are going to. If they are bringing their work on your case, to an end, they should make clear what options you still have; for example, is there time still left to file suit? If you have suffered a judgment, or are responsible for payment of sanctions or costs (yes, this can happen), then they should make this clear, making clear how you must pay those sanctions, or what your options may be.
Whether your lawyer has good news to send, or bad news, their job is to keep you informed, and the sooner the better. Their job is to put your mind as much at ease as is possible, under a situation that is always stressful. Your lawyer should always be able to understand the stress brought on by your accident, and by your injuries.