FAQ’s
Frequently asked questions: Everything you can expect during a lawsuit from incident to conclusion.
You’ve been involved in a trauma. What happens next? How long will this take? What can you expect along the way? What is your case worth? Some claims, typically smaller ones, resolve early on without having to file a lawsuit or personal injury claim. But insurance companies and corporations want to make sure you get the lowest settlement possible (just like we want to make sure you get the best result possible for your claim). They require documentation and proof.
Usually this means a lawsuit is filed and the case moves through the litigation process. A personal injury lawsuit typically takes one to three years to get to trial. It can settle along the way. On the flipside, if it goes to trial, one side or the other may appeal. An appeal can add another year or two to the process.
We’ve designed this frequently asked questions section to help those facing the process, as well as our own clients. We’ve tried to answer the questions that we’ve heard over the decades we’ve been helping people. Feel free to use the following either as a glossary of terms or as a timeline (or both, for that matter).
- The Incident
- Statute of Limitations
- Picking a Lawyer
- Contingency Fees
- Interview or Initial Consult
- Investigation
- Pre-lawsuit Demands or Negotiations
- Government Claims and Administrative Remedies
- Filing the Lawsuit
- Serving the Complaint
- Answer
- Discovery
- Deposition
- Interrogatories
- Requests for Production
- Requests for Admission
- Subpoenas
- Motions
- Settlement Discussions or Mediation
- Trial
- Appeals
An individual or family can be harmed in a variety of ways. The incident itself could be a car crash, a construction site injury, medical malpractice, or your employer’s bad behavior or harrassment. Most incidents, like a truck accident, have a specific moment that defines the incident. Others, like employment discrimination, can go on for a period.
As soon as an incident occurs, a clock starts. Under the law, you must bring a claim within a set period after the incident. This time varies depending on the case. It can be as short as one month for some issues. Typically, injury or wrongul death claims against California state or local governments must be filed within six months of the incident. Most personal injury lawsuits in California need to be filed within two years of the incident.
Because the time for bringing a claim varies, it is essential to speak to a personal injury lawyer as soon as possible after an incident. This helps protect your right to file suit and allows your lawyer to get involved and investigate while the evidence is still fresh.
You would not get your broken leg set by a plastic surgeon. People buying a car test-drive several and frequently read consumer reviews. But people involved in a trauma often hire a lawyer without looking into the person’s background or determining what that lawyer specializes in- a truck accident attorney, for example. You need to understand that the person you hire will be with you for quite awhile—cases typically take more than a year. And the lawyer you select can dramatically affect the value that the insurance company or other side puts on your case. Don’t make that decision lightly. Contingency fee lawyers—lawyers like us—usually won’t charge to meet with you. Consider speaking to two or three different lawyers to make sure you find one who is the right fit for you. Here are some factors you should think about:
- How many years has the law firm or lawyer focused in the particular area of law?
- Is the firm or lawyer a specialist or generalist? Are you looking for a personal injury firm or employment discrimination firm?
- Does the firm have extensive trial experience? If the other side knows your lawyer settles every case and rarely goes to trial, your case will suffer as a result?
- Does the firm have a winning trial record?
- Has the firm handled similar cases successfully in the past?
- Does the lawyer advance all case costs and charge you nothing unless and until the case is resolved in your favor?
- Are the lawyers members of by invitation-only organizations like the American Board of Trial Advocates, American College of Trial Lawyers, or other similar groups?
- Do the lawyers serve as officers or board members for professional groups?
- Have the lawyers received any awards for their work?
- Is the firm or lawyer willing to let you speak with past or current clients to discuss their experiences?
- Do you like the lawyers and their staff? Do they inspire trust?
Most people have heard or seen lawyer advertisements that say “No fees unless we win your case.” This is in essence what a contingent fee arrangement means. It is the type of contract that most employment, personal injury lawyers, and wrongful death attorneys use. We do not charge an up-front hourly rate for our work. Unlike big companies, most people cannot afford to pay lawyers their usual $250 – $1,000 per hour. A contingent fee arrangement means that we take a percentage of the money we recover for you, provided we recover any monies deserved to you. In most cases, we advance the litigation costs as well. These costs include investigation, filing fees, depositions, court fees, and experts. The cost of taking a complex case to trial can easily exceed $100,000.
We invest our time and our money in your case in the hope that we can prevail. Do we prevail most of the time? Yes. Every case? No (Note that when you are interviewing lawyers, if anyone says “I win every case,” that lawyer is either stretching the truth or has a flexible definition of the word “win”).
Because of the time, risk, and effort involved in cases, the attorneys’ fees for most contingent fee cases are 33% – 40% of the total recovery. In some cases, like minors, medical malpractice, and claims against the Federal Government, fees may be less. In rare cases, they may be more. It is worth noting here that the IRS has determined that settlements and verdicts from personal injury claims are not taxable.[1]
Contingency fee arrangements level the playing field. They give everyday people the ability to obtain some of the best legal representation in the industry without paying hundreds of dollars per hour up front.
You’ve decided to interview a personal injury lawyer. Frequently we’ll want to take down some initial information over the phone. This ensures that the consult is appropriate. Sometimes at the conclusion of the call, we may suggest that you speak with another lawyer who is better suited to handle your case.
The initial consult can take place at our office or we sometimes will come to you, depending on your location and level of mobility. You will be asked about what happened, how you are doing, and what you expect from the lawsuit. We will want to look at any documentation you have. The more information you have at the meeting, the better. Photos, accident reports, statements, medical records, receipts—anything that can help us understand your situation—are important.
A first consultation meeting at Rouda Feder Tietjen & McGuinn are always free of charge. Any lawyer who asks to be paid for an initial consult in personal injury, wrongful death, or employment discrimination cases should be avoided.
In fact, our cases are all handled on a contingency fee basis. This means we front all the costs and we are not paid unless we prevail.
As soon as we get involved in a case we start investigating it. If you have not already hired a lawyer, it is important that you preserve as much information as possible. Names and contact information for witnesses, photographs of the scene or involved items (like a car or machine), physical evidence (like the car or machine itself), a police report, medical records—all these are important to your case.
We like to get involved as soon as possible. This allows us to lock down evidence and get witness statements while the events are still fresh in people’s minds. We conduct a substantial investigation before we file a lawsuit. The investigation can involve all sorts of activities. Frequently we send our investigators out to get evidence and statements. We may conduct Internet research or asset searches. Or we might obtain records.
Pre-lawsuit Demands or Negotiations
As much as we like trial, we recognize that the best result for our client is a speedy resolution for maximum recovery. We make it a practice to approach the other side before a lawsuit is filed to explore settlement. If they request medical records or a brief analyzing the case, we will provide that to the appropriate parties. In a civil case, we need to prove our case to a jury. The other side will get all this information during the discovery phase of the lawsuit. We feel that we might as well show the other side how we will prevail and why they should resolve the case now.
Some cases can resolve in this phase. They tend to be lower value cases, where the defendant has limited insurance, or the defendant desperately wants to avoid negative publicity. When possible, we find the right pressure and apply it accordingly.
Government Claims and Administrative Remedies
In some situations, one has to take certain steps before filing a lawsuit. For example, before suing a city, county, or state agency in California, you have to submit a government claim. This has to be done within six months of the incident; rare exceptions can be made if one misses this deadline. In other situations, like certain employment actions, one needs to pursue administrative remedies with the Fair Employment and Housing Administration or Equal Employment Opportunity Commission. The times for these can be very short and failure to comply with them can result in your being unable to pursue a claim at all. In order to protect your rights it is important to speak to a lawyer sooner rather than later.
The lawsuit officially begins when a document, called the complaint, is filed. The document, prepared by your lawyer, sets forth the claims and what you are seeking from the defendant (the wrongdoer).
Once the complaint is filed, it needs to be personally served on the defendant. A process server locates the defendant, or its agent if it is a business, and serves the document on the defendant.
After the defendant is served, the defendant needs to file a document called an Answer. This states the defendant’s legal basis for denying the lawsuit or the claims made in the complaint.
The longest phase of a lawsuit is typically the discovery phase. During this period, each side has the opportunity to formally request materials from each other using a variety of tools—depositions, interrogatories, requests for production, and requests for admission. They also have the right to subpoena people or items—typically documents like police reports, medical records, building plans, etc.
A deposition is a formal question-and-answer session. One lawyer will request that a party or witness appear for a deposition, and all the other lawyers have the right to attend and ask questions. The process typically takes place in a lawyer’s office. While not in a courtroom, the answers fall under the penalty of perjury clause, meaning the witness is sworn in at the beginning of the process. The questions and answers are taken down by a certified court reporter. The court reporter then produces a booklet that contains the testimony. Frequently depositions are also videotaped so that the witness’s behavior, not just the answers, is preserved.
Almost every party to a lawsuit, with rare exception, has to sit for a deposition. Your lawyer will meet with you prior to your deposition so that you are more comfortable with the process.
Interrogatories are written questions that one side sends to another. For example, “List the name, address, and telephone numbers of every doctor or health care professional you saw for the injuries you are claiming from the incident.” Again, your lawyer will help you prepare the answers to these questions. But you will have to do a fair amount of homework yourself to gather the information that is being requested.
These are formal requests for copies of documents. In a construction injury accident, we may ask to review the job file, the contracts, and the policies and procedures that should have been followed, among other things. We might also want to visit the location where the incident happened so that our experts can inspect the site. Defendants often will request copies of medical records and earnings history if there is a wage loss claim. Your lawyer should help you sort through these requests as they arise.
Requests for admission ask that one side admit or deny that something is correct. The goal is to narrow down the issues in dispute. For example, in a premises liability case (a suit where we are suing because someone was injured by something on someone else’s property) we must prove that the defendant owns the property where the injury occurred. This typically is not a huge area of dispute. An inexpensive way to get an answer to this question and to prove it, would be to send a request for admission that says “Admit that at the time of the INCIDENT you owned 1234 Main Street.”
A subpoena is simply a formal order from the court telling someone to produce something for inspection, review, or copying. In most cases, the defendant will subpoena your medical and employment records. These are needed to evaluate the seriousness of your claim. We send subpoenas to all agencies or companies who have material that we know will help us prove your case. For example, we might subpoena the striping diagrams, layouts, and traffic light timing cards in a car crash case.
The formal discovery period is also the time where parties can make certain types of motions—formal requests where the court takes a specific action. These motions can include requests that one side or the other respond to specific questions. Sometimes a party does not provide complete answers to interrogatories, document production requests, or requests for admissions. In those cases, we may file a motion to compel them to answer.
There are other far more serious motions such as motions for summary judgment or adjudication. These motions are usually made by the defense and are requests that the court throw the case or part of a case out of court without a full trial. While rare, sometimes a court will grant a motion for summary judgment for a defendant, which will functionally end the case against that particular defendant.
Settlement Discussions or Mediation
Once the parties have a better idea of the claims and risks in a case, they will usually have settlement discussions. Over the years, the courts have adopted a policy requiring the parties to sit down at some point. The phrase used by the courts is Alternative Dispute Resolution and can include settlement conferences at the courthouse, mediations, or non-binding arbitrations. The most common settlement discussion is mediation. A mediation is usually overseen by a retired judge or an experienced lawyer who acts as a neutral party and who works with the parties to try to resolve the case without a trial. A mediator cannot force any party to settle a case—you and the defendant(s) make the decision. The parties settle when an offer has been made that everyone determines is an acceptable alternative to the risks of trial. While attorneys at our firm enjoy trying cases, a settlement is frequently better than a trial. While you may be giving up the possibility of a larger outcome that may occur with a trial, a settlement is a known quantity. No one can predict what a jury will do in a particular case. Some cases require several opportunities to sit down and discuss the case before the case resolves.
When the parties have been unable to reach a settlement and the case is fully prepared, the case goes to trial. Trials on catastrophic cases often last several weeks or months. The majority of our trials are jury trials where eight to 12 jurors make the decision. As a plaintiff, you are an active participant in the trial. The trial consists of jury selection, opening statements, witness testimony, documentary or other tangible evidence, closing arguments, and jury deliberation. Once the jury or judge returns a verdict, both parties (plaintiffs and defendants) then have the opportunity to appeal the outcome if they believe that the result was unfair.
When one side is unhappy with the outcome of a trial and believe there is a legal basis for the judgment to be set aside (i.e., reject the previous decision), the party can appeal the case. Cases can also be appealed if the judge has made a ruling on a terminating motion such as a motion for summary judgment. Appeals require detailed briefing and analyses of the facts, transcripts from the trial, pleadings from the underlying case, and briefings from all sides. Appeals typically take one to two years from the date the appeal has begun until the appellate court makes a decision on a case. Sometimes parties will engage in settlement discussions during the appellate process.
If the appellate court upholds the verdict, the case is most likely done. An exception to this is when there are novel legal issues that the Supreme Court may want to review. In those rare circumstances, the Supreme Court can be petitioned to review the case. The appeals court can also decide that something was unfair during the trial and require that the case be retried.
