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If you think you might need a lawyer, then you have legal questions. To help answer those questions and provide general legal information for consumers and potential clients, we provide the following overview of the litigation process for most personal injury claims – from the point of evaluating a potential claim, through filing with the court, pre-trial discovery, the settlement process and the trial.
When an accident or mistake hurts an innocent victim, a personal injury claim, technically a “tort” claim, may offer some degree of compensation. Over 34,000 people are killed in car or truck accidents on America’s roadways in any given year. Over 98,000 fatalities each year are due to medical mistakes. Simply stated, personal injury lawsuits allow every-day Americans who have been harmed through no fault of their own to hold the person or company that caused their injuries accountable for their actions.
Torts are civil wrongs recognized by law as grounds for a lawsuit. While some torts are also crimes punishable with imprisonment, the primary aim of tort law is to provide compensation or relief for the damages incurred by the victim and to deter others from committing the same bad acts. Among the types of damages the injured party may recover are: loss of earnings, pain and suffering, and reasonable medical expenses. They include past and future losses.
Specific torts include trespass, assault, battery, negligence, medical malpractice, products liability, and intentional infliction of emotional distress. Tort law is state law created through judges (common law) and by legislatures (statutory law). Thus the tort law applicable to any given claim will depend upon the controlling state law, typically the state law where the tort occurred.
The facts will determine if another party is at fault, or liable, for your injury. Liability depends on the specific facts of an accident or mistake, as a general rule the more clearly liability can be established, the stronger the claim. Liability on the part of another party, the defendant, must be evident – the defendant must have acted in a way which was negligent and caused you harm. State statutes, regulatory rules and case law may all contribute to the determination of liability, so it is not always clear whether there is liability on the part of another.
The determination of the value of a case is based upon two considerations – the question of liability, or who is responsible for the injury, and the question of damages.
Damages are the losses and harm you have suffered valued in a dollar amount. Compensation is appropriate for both economic and general damages, such as medical expenses and loss of wages, and non-economic losses such as permanent impairment or loss of quality of life, often referred to as special damages.
An accident victim could have a damages claim for any combination of the types of damages listed below, the facts of the case determine what damages are appropriate and can be proven.
These damages cannot be proved with any clear specificity, but are awarded based on the fact that they normally follow from an accident or injury and represent a significant loss. This type of damages is frequently referred to as non-economic damages. General damages include:
- Pain and suffering – Damages for pain and suffering considers the nature of the injury, the certainty of future pain, its severity, and how long the plaintiff is likely to be in pain. Some states allow the jury to assume that if a bodily injury has occurred there has been some pain and suffering, and some require that the plaintiff be conscious for some time period during the injury.
- Disfigurement – When an injury has left a person deformed or disfigured, by scars or other permanent effects on personal appearance, the injured person (the “plaintiff”) may be able to collect damages for any mental suffering that arises due to awareness of the disfigurement. These damages are sometimes included as an element of other types of damages, such as mental anguish.
- Permanent disability – When an injury permanently impairs the physical or mental ability of a person to perform normal work or non-occupational activities, damages for the permanent disability may be sought.
This general category of damages covers all monetary losses, including medical expenses after an accident or injury. Recovery requires detailed proof that the losses were sustained, and a showing of how much money was involved. Special damages include:
- Lost wages – these damages represent the amount of money a plaintiff would have earned — from the time of the injury to the date of settlement or judgment. an unemployed person may be permitted to recover lost wages if he or she can prove what could have been earned during the same period.
- Medical expenses – bills and expenses for medical services such as doctors, hospital stays, emergency room treatment, ambulance fees, and nursing services. a plaintiff must show that the expenses are related to medical conditions resulting from his or her injury.
- Medical surveillance – the cost of monitoring plaintiff’s medical condition after the plaintiff was exposed to a hazardous substance, so that any illness or injury might be detected early.
- Future lost earnings – after an accident or injury, these damages may be recovered if the plaintiff proves that his or her ability to earn money in the future has been impaired or diminished by the injuries. factors that help determine whether an award should be made include the plaintiff’s age, health, life expectancy, occupation, talents, skill, experience, and training. past earnings are a factor in determining the appropriate amount of compensation for lost earning capacity, but the claim really focuses on what might have been earned were it not for the accident or injury.
- Future medical expenses – this type of recovery is permitted if the plaintiff proves that he or she will need continued medical care as a result of the accident or injury. The proof must be sufficient for the jury to make an approximate estimate of the cost, i.e. through the medical opinion of a treating doctor.
Once you hire a lawyer, your case will be filed in the appropriate court. The statement of claims and damages sought is presented in a complaint filed by the injured person, or plaintiff. Generally, the opposing party, the defendant, then files an answer which responds to the allegations argued in the complaint. The case then begins the pre-trail phase which is devoted to gathering as much information as to the facts and circumstances of the injury. A party may serve the opposing party interrogatories, which are written questions to be answered by the other party. A party may also take depositions, or ask oral questions, of a party or witness. The responses to interrogatories and to deposition questions are given under oath and have the same weight as testimony in a courtroom.
During the discovery phase, pretrial motions may be filed for consideration by the judge. These motions may request the court to dismiss the entire lawsuit, dismiss a claim or party, or limit the evidence to be presented at trial.
The completion of the discovery process is governed by time limits, and once the deadline for discovery has passed, then typically the court will schedule a pretrial conference with the parties to discuss a wide variety of trial topics. At this time the judge will set a trial date.
Civil actions in state court may be tried to either a judge (often referred to as a bench trial) or a jury. Generally, the plaintiff will make a jury demand or a request for a jury trial. Thus the trial begins with the jury selection. The judge and the parties then have the opportunity to ask the prospective jurors questions. This process is referred to as voire dire.
Each party then gives an opening statement, which is an overview of the evidence that is expected to be presented. Next, the plaintiff presents evidence by calling witnesses and asking questions. Each party must abide by the Colorado Rules of Evidence. These rules govern what evidence is admissible at trial, and how it may be presented. If a party believes the other party is not following the rules, that party may raise an objection. The judge will then either sustain the objection, agreeing that the evidence rules prohibit the evidence, or overrule the objection.
The plaintiff must present evidence first. The defendant has the opportunity to cross-examine any witness called by the plaintiff. After the plaintiff is done presenting evidence, the defendant may present evidence. The plaintiff has the right to cross-examine any defense witnesses, and after the completion of the defendant’s case, the plaintiff may present further evidence to rebut the evidence presented by the defendant.
Once the parties have presented their evidence, they each have an opportunity to make closing arguments to the jury. Closing arguments must be based upon the evidence produced in trial.
After closing arguments, the court will give jury instructions, which describe the law and procedure that the jury must use in making its decision. After the conclusion of the closing arguments, the jury will pick a foreperson and discuss the evidence in private. To reach a decision, all jurors must agree. If the jury cannot agree, the court may declare a hung-jury and the case may be tried again to another jury at a later date.
Following the verdict, parties may file post-trial motions, the most common are a motion for new trial or a motion for judgment not withstanding the verdict. The parties may also file a notice of appeal to have the case reviewed by an appellate court.