Many personal injury cases resolve without requiring a lawsuit. In an ideal world, an injured person would simply submit a claim to the insurance company and then be able to negotiate a fair value to resolve the claim. Unfortunately, this is not always possible. Often insurance companies deny responsibility or make offers that are far less than what claims are worth. As a result, an injured person may need to file a lawsuit to obtain the compensation they deserve. Filing suit is done by filing a document called a Complaint with the Court stating how the incident occurred and setting forth the claims. This document is then served upon the defendant(s) to begin litigation. The defendant’s liability insurance company will hire an attorney to respond to the Complaint with a document called an Answer. Sometimes you might hear people discuss the “parties” to a lawsuit. The parties to the suit are the “plaintiff” and the “defendant.” The injured claimant is the plaintiff. The individuals or entities who have been sued are the defendant(s). It is important to remember that filing a lawsuit does not guarantee that there will be a trial. The plaintiff always has the option of negotiating a reasonable settlement during the course of litigation. Often, the litigation process will position a case for a better settlement result without the need for trial. Insurance companies may increase the offer to a reasonable amount any time prior to the trial date. However, it is best practice to prepare every case as if it is going to trial so that you are ready to win a trial if settlement is not possible. There are some cases that simply require a trial to get the best possible result.
These are the eight typical steps to litigation in Circuit Court:
Step 1: Suit Filed: Complaint drafted and filed with the clerk of the appropriate Court. The Court creates a file and a case number is assigned.
Step 2: Service on Defendant(s): The sheriff’s office or a private process server obtains the Complaint and service documents from the clerk’s office and serves them on the defendant(s).
Step 3: Defense Files Answers: The defendant’s insurance company hires a lawyer (defense attorney) who will defend the case. The defense attorney will file an Answer in response to the allegations in the Complaint.
Step 4: “Interrogatories”: The plaintiff will typically serve written questions and written requests upon the defendant(s). The written questions are called “interrogatories.” These questions are designed to “discover” information about the defendant(s), how the defense contends the incident occurred, and any defenses they have asserted. This is called “discovery” or the “discovery process.” Each defendant, with the assistance of the defense lawyer, must respond to the plaintiff’s questions and requests for documents. Likewise, the defense lawyer will send the plaintiff interrogatories and requests for documents seeking information about the incident, the plaintiff’s background, medical history, work history, and other relevant aspects of the case. The parties have a limited time period in which to respond to those questions. A good personal injury attorney will help the plaintiff prepare responses to the questions so that they are accurate and complete. The plaintiff’s responses to these questions are given under oath by signing a notarized affidavit.
Step 5: Set Case for Trial: Most of the time, a trial date is set by agreement of the parties subject to the Court’s trial calendar and the availability of the attorneys and the parties. Many court dockets are booked months in advance, so depending on the circumstances, the parties will often coordinate on a trial date before the discovery process is complete.
Step 6: Depositions: The parties in litigation have a right to take depositions. A deposition is essentially an in-person interview conducted under oath with a transcriptionist writing down everything that is said. The primary purposes of a deposition are to learn what a particular party or witness knows about information relevant to the case and to find out what that party or witness is likely to say at trial. The plaintiff (through his or her attorney) has an opportunity to depose the defendant about how the incident occurred. The defense attorney will have an opportunity to depose the plaintiff about the incident, the plaintiff’s background, injuries, medical history, work history, and other topics related to the case. Either party has a right to depose other witnesses, as well. A good plaintiff’s attorney will meet with the plaintiff in the days before the deposition to thoroughly prepare the plaintiff for the defense attorney’s questions.
Step 7: Trial Preparation: As the trial date approaches, a professional personal injury attorney will diligently work to gather and organize the evidence needed to be successful at trial. If the insurance company continues to deny responsibility or continues to refuse to extend reasonable offers, then a trial may be necessary. Prior to trial, a prepared personal injury attorney will meet with the plaintiff, the plaintiff’s family, friends, co-workers, the investigating officers, and other witnesses who may be needed to present the case effectively.
Step 8: Trial: If necessary, a plaintiff’s case will be tried in Circuit Court to a jury of seven people drawn from the community where the case is filed. At the conclusion of the trial, the jury will render a verdict. If the jury finds in favor of the plaintiff, then it is supposed to award money damages that will “fully and fairly compensate” the plaintiff for their injuries and losses.
How to Sue
Once you have decided to go ahead and file a lawsuit, you will probably need some help figuring out how to get started. Filing a lawsuit is not always a clear and straightforward process, and even basic decisions such as where to sue might not be as simple as they seem.
Determining if You Should File a Lawsuit
When someone injures you or damages your property, your first instinct may be to think, “I’m going to sue that person!” But, lawsuits take up a lot of time, energy, and often money so it’s important to consider it carefully before actually filing a lawsuit. There are a few helpful questions to consider when determining whether or not to file a lawsuit:
• Do you have a good case?
• Would you be willing to go to mediation or accept a settlement?
• Will you be able to collect if you win your lawsuit?
First, although there are never any guarantees that you will win a case, it’s important to figure out if you have a good case. Most lawsuits can be broken down into a series of elements and in order to determine if you have a good case, each element must be satisfied. For example, if you want to file a breach of contract lawsuit against a contractor, you would have to make sure that you are able to satisfy each element of a breach of contract case. Second, in Utah legal system, a majority of cases are settled instead of taken to trial. Many times the best solution to a problem is to discuss the issue with the other side, often with the help of a neutral mediator. Mediation is often a much more low cost and quicker alternative to a trial. In fact, many situations may require the parties attempt to mediate or arbitrate the issues before actually heading to court. Assuming you have positive answers to the first two questions, you should also think about whether or not you’ll be able collect a money judgment from the defendant. It’s important to remember that if the defendant doesn’t have the ability to pay a monetary judgment, there is really no point in going through the time, effort, and money of filing a lawsuit against him or her.
Statute of Limitations
It’s important to be aware that there are time limits to file a lawsuit. The time limit, known as the statute of limitations in legal terminology, will depend on state laws as well as the cause of action for the lawsuit. For this reason, it’s important to consult an attorney or look up the laws of your state when considering whether or not to file a lawsuit. The clock for the statute of limitations of a particular cause of action can start running at several different times. Three of the most common times that the clock can start to run are: the date of harm, the date of discovery of the harm, or the date you should have discovered the harm. The date of harm is when the actual injury occurred, such as the date of the car accident that damaged your car. The date of discovery can occur when the injuries or damage could not have been ascertained until a later date. Finally, the date you should have discovered the harm is when a reasonable person would have discovered the harm. Generally speaking, you can look up the laws of your state to find out when the statute of limitations begin for the particular harm you have suffered.
Hiring a Litigation Attorney
If you believe that someone should be responsible for the personal injury, property damage, or monetary loss you have suffered and you are interested in filing a lawsuit, you should contact a local litigation attorney to discuss your options.
Starting the Case: Initial Court Papers
The legal papers that are filed in court at the beginning of a lawsuit are called “pleadings.” Your attorney will explain pleadings to you in the particular context of your case, but the summary that follows will give you a head start in understanding some of the many documents that may become a part of your civil lawsuit. Please note that some states have different names for some of these documents.
Usually the first document filed in a lawsuit is the Complaint (or Petition), which provides an outline of the plaintiff’s case against the defendant. The Complaint is a document that identifies the parties involved, sets out the legal basis for the court’s jurisdiction over the controversy, states the plaintiff’s legal claims, and relates the facts giving rise to the claims. The Complaint will also contain a section called a demand for judgment or prayer for relief. Here the plaintiff will set forth what he or she wants the court to order the defendant to do — such as pay damages or take (or cease) a certain action. The purpose of the Complaint is to provide the defendant with notice of the factual and legal grounds for the plaintiff’s claims. Generally, the facts set forth in the Complaint are based on the plaintiff’s own knowledge. Sometimes the plaintiff will use the phrase, “upon information and belief” before setting forth some facts. This means that the plaintiff has heard about those facts from someone else, or has formed the belief that the events described in the paragraph happened as described. Most states require that the Complaint set forth only a short and plain statement of the plaintiff’s claims, so the facts in the Complaint don’t necessarily need to tell the whole story.
Summons and Service of Process
The Summons is an order from the court where the lawsuit will be heard or “litigated.” It notifies the recipient (the “defendant” in the case) that he or she has been sued, refers to the Complaint or Petition, and sets out the time limit within which the defendant must file an answer or seek to have the case dismissed. It will also describe the consequences of failing to respond in a timely manner: the case may be decided without the defendant and he or she may be bound by the result even without participating. Failing to respond to a lawsuit on time will cause a defendant to be “in default.” The Summons is usually a form document. It will have a preprinted caption that contains the name of the court, the names of the parties and a docket number (the court’s identification number for the matter). The body of the document will tell the defendant that he or she has been sued. This language is called the “Notice.” The Summons will be delivered or “served” on the defendant along with the Complaint, either when somebody actually confirms his or her identity and gives them the documents, or when they are mailed to the defendant. The legal term for this is “service of process.” The Summons, properly served, gives the court power or “jurisdiction” over the case and over the defendant. That means the court may make decisions about the controversy described in the Complaint, and decisions affecting the defendant with respect to the controversy.
If a defendant has his or her own claim against the plaintiff, one which arose out of the same circumstances as those that led to the Complaint, it should be raised in the Answer in a section titled “Counterclaims.” The Counterclaim will be written in a manner similar to the Complaint.
Reply to Counterclaim
If a defendant asserts a Counterclaim in the Answer, the plaintiff may respond by filing a “Reply.” The Reply will “admit,” “deny,” or assert that the plaintiff lacks information, just as the original Answer did. The Reply also may assert defenses, just as the Answer did.
Cross-claims arise when there are many parties to the lawsuit and two or more, who are “aligned” as plaintiffs or as defendants, have their own dispute arising out of the transaction or occurrence. For example, if Driver B and Driver C are sued by Driver A after a multiple-vehicle accident, and Driver C was actually injured by something Driver B did, Driver C might file a cross-claim against Driver B, within the same lawsuit.
Answer to Cross-claim
The person being sued in a Cross-claim will file an Answer similar to the one filed after the original Complaint.
Sometimes a defendant who has been sued will have a legal reason for passing liability off to another person. A common example is a contract in which the third party promises to pay if you the defendant is found liable in a case. This person may be brought into the lawsuit if the defendant files a Third-party Complaint. Like the regular Complaint, it will set forth the relevant facts giving rise to the defendant’s claim against the third party, and will set forth a request for relief.
Answer to Third-party Complaint
The person being sued through a Third-party Complaint must file an Answer, similar to the one filed after the original Complaint.
Resolution Before Trial: Court Motions
Pretrial motions can resolve many important questions about your lawsuit. A motion is a request your lawyer files with the court asking for a ruling on a particular matter. If the ruling on the motion could terminate the litigation and end the dispute before trial, it is called a dispositive motion. If the ruling is on some incidental question that arises during the litigation, it is a non-dispositive motion.
Motion to Dismiss
A motion to dismiss is sometimes filed in the very early stages of the litigation, before the parties have conducted discovery. The material presented in the complaint and any exhibits to the complaint are the focus of the motion. The motion is brought when the defendant believes that the complaint is legally deficient in some way. In deciding a motion to dismiss, the court must view the facts set forth in the complaint in the light most favorable to the plaintiff. The motion to dismiss is usually based on one or more of the following legal deficiencies:
• Lack of subject matter jurisdiction: meaning that the court doesn’t have the power to rule on the controversy. For example, state law may require a special court to determine certain matters, such as requiring that a probate court, rather than a general civil court, decide a complaint involving the interpretation of a will.
• Lack of personal jurisdiction: This means that the court does not have power to make decisions affecting the defendant personally. The court lacks jurisdiction over you if you do not have sufficient minimum contacts with the place where the lawsuit has been filed.
• Improper venue: “Venue” refers to the particular location of the court. States have statutes setting forth the places within the state where you can be sued. If you are not sued in one of those places, the site of the lawsuit is inappropriate. A venue may be legally improper even if the court has personal jurisdiction over you. A frequent solution to this problem is not to dismiss the case, but to order that it be transferred to the proper venue.
• Insufficiency of process or insufficient service of process: A case may be dismissed if there is a technical defect in the summons (which is rare), or if you were not properly served with the summons and complaint (which is more common). Service may be improper for a number of reasons, so be sure to tell your lawyer about how you were served and any odd circumstances so your lawyer can determine whether it could lead to the case being dismissed.
Failure to state a claim upon which relief may be granted. In some cases, your lawyer may conclude that the facts set forth in the complaint do not state a legal claim for relief. For example, the complaint may allege that you did some negligent act that injured the plaintiff. The law may provide that you don’t have any responsibility to look out for the plaintiff under the circumstances described in the complaint. If you don’t have a legal responsibility, you cannot be held liable for the plaintiff’s injuries.
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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West Jordan, Utah
84088 United States
Telephone: (801) 676-5506