Legally reviewed by Arthur Petrousian, Trial Attorney at Morgan & Morgan, on September 18, 2024.
Not every personal injury claim goes to trial. In many cases, negotiations between your attorney and the person or business you’re suing result in a fair settlement agreement.
If settlement negotiations aren’t going great, you may choose to enter the litigation phase and kick off the lawsuit process. You can still reach a settlement at any point during litigation, but if there truly aren’t any fair offers on the table, you and your attorney may choose to take it all the way to the courtroom for the best chance at a fair amount.
Taking your case to trial might seem like a daunting process, but it doesn’t have to be. Choosing the right legal team can help make the experience less stressful and overwhelming. Plus, going to trial can result in a much higher award amount than what was being offered. Sometimes as much as 60 times more!
So, let’s take a look at how an injury lawsuit works from start to finish.
There are five things that will happen before you step foot in a courtroom:
Step 1: Submit your claim. Your insurance company is hoping you forget to do this within their mandated window, so don’t delay.
Step 2: Hire an attorney. Select one that has the expertise in your type of injury and the resources to take your case to court.
Step 3: The onboarding phase. Your lawyers will dig into the details of your case and review and relevant documents you have, including your insurance policy.
Step 4: Your case is opened. Documents will be requested from the other people involved in your injury, including police reports, ER discharge forms, and insurance policy limits.
Step 5: A demand letter is sent. This letter gives an overview of the facts of your case, your injuries, costs, and a “demand” for payment from the responsible party’s insurance company.
You will go through three stages during the litigation phase (unless it settles at some point), called pleadings, discovery, and resolution.
When a Case Goes into Litigation
Pleadings
The first step in the litigation process is the pleadings stage. “Pleadings” is a term for documents that attorneys send to each other and/or file with the court.
The pleadings phase is when you file your lawsuit (stating your allegations) and any defenses you may have (counterclaims and defenses). You can think of this stage as the official start to your claim.
In pleadings, the language used and the accuracy of legal concepts is critical. Don’t run the risk of trying this yourself and lose out on a potential award because of terminology misuses or typos!
Discovery
Next, your claim moves on to the discovery phase.
The discovery step is just what it sounds like: a process where both the plaintiff and the defendant can "discover" facts and information from each other that are related to your claim.
Typically, the discovery process includes:
- Interrogatories (a written set of questions that you answer with the help of an attorney);
- Depositions (live questioning by your attorney and the defendant's attorney); and
- Document production (where you hand over requested documents).
Resolution
Once discovery is complete, your attorneys will meet with the defense in the resolution stage.
First, they will decide whether to settle, meaning that one party compensates the other for their tangible or intangible damages. Many cases end in a settlement, but if yours doesn’t, the case will go to trial.
Suppose this happens. Both parties would argue their case before a judge and possibly a jury, who would ultimately determine whether the defendant is responsible for your injuries. This process can take months or even years because of the overwhelmed court systems.
At Trial
Personal injury trials can take anywhere from 5 to 10 business days. You’ll need to appear in court for the entire trial, which usually consists of days from 9 AM to 5 PM.
You’ll be required to testify at trial, but don’t worry. Your attorney will prepare you for the questions you may be asked. It’s important to be calm and remember not to do anything that may impact the jury’s perception of you in a negative way.
If the judge rules in your favor, the defendant will be ordered to pay damages to you and the trial ends. Then comes the payout!