A personal injury lawsuit often involves a complicated legal process that can be full of unpleasant surprises and frustrating delays, especially if you or your attorney do not know what to expect. It is difficult to predict exactly what will happen in any given suit because all suits are different from one another. Nevertheless, we can break the process down to 7 basic stages, namely: 1) pre-suit; 2) commencement of lawsuit and scheduling; 3) discovery; 4) motion practice; 5) mediation/ADR; 6) pretrial; and 7) trial. I will briefly address these in turn.
The pre-suit process is a time for gathering as much background information about the case as possible. Often I obtain investigation reports from police or other experts, such as accident reconstruction experts. I will obtain certified medical records and narrative reports from treating health care providers and will gather all medical bills. I will communicate with the adverse insurance company and any health insurers who may have paid any bills. Finally, I will gather other information, such as wage information to assess economic damages, as well as take written statements from witnesses or other persons with knowledge about the claim. The pre-suit process, for me, culminates in a detailed settlement demand submitted in an attempt to obtain a settlement before suit is required. This, as with all aspects of the case, comes with considerable input from the client. Fortunately, I have been successful in obtaining settlements. However, if a reasonable settlement cannot be reached, I am ready, willing and able to file suit.
2. Commencement of Suit/Scheduling
A lawsuit is commenced by filing a summons and complaint and having it personally served in the time allotted under applicable statutes. This is usually 90 days, but can vary depending on the entities involved. Once service is obtained, then the defendants have 45 days to file a written answer. Once this is done, the issues are “joined” and the case is ready to be set for trial. The court will send out a notice for a scheduling conference. At the scheduling conference, all dates pertinent to the case will be set. The most important date is the trial date, which is usually put out 8 months to a year, because of the busy court calendar.
The bulk of the case is then spent on what lawyers refer to as “discovery.” This simply means that the lawyers engage in fact-finding procedures to enable them to determine what the facts are. The two most common forms of discovery are written interrogatories and depositions. Written interrogatories are written questions that must be answered by other parties to the suit. Depositions allow the attorneys to question all witnesses in person under oath in front of a court reporter, who will then prepare a transcript of the testimony. Both of these can be used in court at the trial.
4. Motion Practice
Sometimes lawyers file motions. A motion is an application to the court for an order. For example, a party may file a motion to dismiss, which, if granted, may result in an order for her dismissal. A party may file a motion to compel discovery, which may result in an order directing another party to respond to discovery. And so on. A motion for summary judgment is a very special and important motion. If granted, it can allow for judgment summarily in the case. It is like throwing the other side out before getting to first base. A summary judgment motion, because of its drastic effect, is not typically granted.
The courts in Wisconsin have the power to force parties to attend non-binding alternative dispute resolution, or ADR. This usually takes the form of mediation. A mediation is simply a time for the parties to sit down and discuss their differences and attempt a voluntary resolution of their case. This is usually done with the help of an impartial attorney, or mediator, selected by all sides and whose fees are shared by all. No one can force any one to settle, but there are often good reasons to consider doing so, including the uncertainty of continued litigation and the certainty of increased expense.
The court will have a pretrial to discuss the trial if the matter is not settled at mediation. This usually takes place two to three weeks before the trial. The attorneys and the judge discuss evidentiary matters, witness issues, and practical issues, like the use of DVDs or overhead projectors.
A trial takes place as a last resort. It should be noted that, although the mediation is probably the time when most cases settle, there is nothing preventing a case from settling right up to the time of trial, or even after the trial begins. If no settlement is obtained, however, then the lawyers try the case and give the case to six or 12 neutral persons to decide the disputed facts. While appeals can be taken after that, usually the jury trial is final. I believe it is the best of both worlds. While I believe the system allows for a full discovery of facts needed to make an informed decision about settlement, I also believe the jury trial system is a great way to allow injured persons a fair hearing in those cases where reasonable minds differ about what is fair compensation. In 22 years, I have never seen a jury get it completely wrong.
David Weber is an attorney at Pinkert Law Firm LLP with offices in Sturgeon Bay and Sister Bay. 920.743.6505 or 920.854.2616.
This article is based on general principles of Wisconsin law, is for informational purposes only, and is not intended to provide legal advice. Each legal matter must be judged on the merits of its unique circumstances. If you have a legal problem, consult an attorney.