COMMENCING A PERSONAL INJURY LAWSUIT
Welcome back to the fourth Part of this crash course on motor vehicle accident cases. The third segment explored how a decision was made on whether to settle or sue your personal injury case. This segment will explore what happens after the decision has been made to file a lawsuit, the timing of the lawsuit, and the preliminary stages of the discovery process.
You may have heard of the “Statute of Limitation.” Whether it is a personal injury case, contract dispute, employment matter, or family law issue, every case has a Statute of Limitations which requires the lawsuit to be filed within a prescribed amount of time. In a personal injury case, the Statute of Limitations is three (3) years calculated from the date of the accident. Except in rare instances, a personal injury action will be dismissed if it is filed after the three (3) year limitation period. Even if the injuries have not healed and treatment is ongoing, you must file a lawsuit within three (3) years from the date of the car accident.
A typical lawsuit begins when the injured party, the plaintiff, files a Summons and Complaint. The Complaint is a legal document which sets forth, in a general way, the allegations of wrongdoing (negligence) asserted against the parties that caused the injuries, the defendants. Once the Summons and Complaint are filed with the clerk of the court, the plaintiff must serve a copy of the Summons and Complaint on each named defendant. A plaintiff is given 120 days (about 4 months) to locate and serve the defendants named in the lawsuit as it may be difficult to locate a defendant. Once the Complaint has been served, the defendants are provided up to thirty (30) days to file an Answer. The Answer is the legal document which responds to the plaintiff’s allegations of wrongdoing asserted in the Complaint. The Answer will typically recite which of the plaintiff’s allegations are admitted or denied and will state any affirmative defenses that may apply. It may surprise you to learn that it could take up to five (5) months before a defendant submits an Answer to your lawsuit. However, a diligent personal injury attorney will have determined how and where to serve the defendants during the investigation stage. When this is done in advance, the Complaint can be served within days or weeks prompting the defendants to submit an Answer more quickly.
After the Complaint is served and the defendant(s) have answered, the parties to the lawsuit engage in a discovery process. The discovery process allows the defendants to obtain more information about the allegations in the Complaint and the plaintiff’s injuries. It also allows the plaintiff to obtain additional information about why the defendant(s) believe they should not be held responsible for causing the plaintiff’s injuries. The first phase of the discovery process involves the exchange of documents, physical evidence, and information. The requests for discovery are made in writing and require a written response. In a car wreck case, the defendant(s) will request copies of the plaintiff’s medical records which document the plaintiff’s injuries and treatment history. The defendant(s) will request the documents and information that the plaintiff will rely on to establish the fault of the defendant(s) including police reports, photographs, witness information and statements, and expert information. The defendant(s) will also serve a document called a “Demand for Bill of Particulars.” This document requires the plaintiff to give a more detailed and particularized explanations of how the accident happened, why the defendant(s) should be held responsible, and a full description of all the injuries that are claimed to have been caused by the car accident. The plaintiff is also permitted to serve discovery demands on the defendant(s). A plaintiff will seek information about insurance coverage, witness information and statements, and expert information. Like the defendant(s), the plaintiff will also serve a demand for a Bill of Particulars seeking a detailed explanation for why the defendant(s) deny responsibility for causing the accident and any affirmative defenses asserted in the Answer.
Once this initial exchange of requested information and documentary evidence is completed, the parties enter the second phase of the discovery process. In this second phase, the plaintiff and defendant(s) take oral testimony from each other to flesh out the specific details of the accident, the injuries, and the defenses which have been raised. After depositions, there is typically an exchange of expert reports which is often followed by motion practice. These topics will be explored in our fifth and final installment of this car accident case series.
If you have any questions or would like more information about this topic, please email me or join me on April 26, 2023 for my webinar. I will address it during the webinar at the end of this series. Please come back next week for the fifth installment of this crash course on motor vehicle accident cases which will discuss what happens when a lawsuit becomes necessary to obtain the compensation you deserve.
This is not intended to be legal advise. You should contact your attorney to discuss your specific situation.
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Andrew Boughrum, Esq., is an Associate at the firm and practicing general litigation and personal injury.
He can be reached at 845-764-9656 and by email.
