How to Handle a Personal Injury Case from Start to Finish
A personal injury case is started by the plaintiff filing the complaint. The defendant is served a copy of this complaint by a summons (service of process) to which the complaint is attached. Next, the parties enter into the discovery stage, where they formally gather relevant information from parties and third parties to the case. The parties then hold a settlement conference. If the parties are unable to settle the case, then the case proceeds to trial.
Filing a Complaint with the County Court
The first step in the personal injury lawsuit process is taken by the plaintiff filing a complaint with the circuit clerk of the appropriate county. When the complaint is filed, the clerks will put the lawsuit in the system, assign a judge to the case, and put an initial court date on the judge’s calendar, or docket. The person who files the complaint is referred to as the “plaintiff” or “petitioner,” whereas the opposing party is referred to as the “defendant” or the “respondent.”
Serving Defendant with Complaint
When the plaintiff files the complaint, he or she also prepares a “summons.” The clerk issues the summons, thus giving the plaintiff formal permission to serve a copy of the complaint and summons on the defendant. The summons informs the defendant that a lawsuit has been filed, and includes a copy of the complaint, and any deadlines that the defendant must meet. Typically, but not always, the sheriff’s office in the county in which the defendant resides or operates will be given the complaint and serve the defendant with a copy.
What is Included in the Complaint, and Why is it Important?
The complaint provides the court with information about the parties, what circumstances led to the injury, the nature of the injury suffered by the plaintiff, and what law the plaintiff believes was broken.
The complaint is arguably one of the most important documents in the lawsuit. It lays out the factual and legal groundwork for the entirety of the lawsuit. The facts in the complaint include the sequence of facts or events that the plaintiff believes led to his or her injury, the relationship between the parties, the injuries suffered by the plaintiff, and what compensation the plaintiff believes he or she requires and is entitled to under the law, to be made whole.
The complaint also sets the legal foundation for the case. The legal foundation is critical because the law will establish what the petitioner needs to prove to win the lawsuit, what type and amount of relief the petitioner may receive, what defenses are available to the respondent, and other essential matters. Additionally, if the plaintiff does not include certain allegations or legal claims in the complaint, then the plaintiff may be prohibited from bringing these up in this or future lawsuits. If plaintiffs do not include the proper, for example, the law that the defendant allegedly broke, then this could also negatively impact the lawsuit. Plaintiff may be able to ask for the opportunity to amend the complaint in these types of situations, with permission of the court; however, the defendant will likely challenge this, so plaintiffs would benefit from seeking the advice of legal counsel to make sure that they are protecting their legal rights in the complaint.
Because of the importance of the complaint to the entirety of the lawsuit, plaintiffs are encouraged to speak with a personal injury attorney early on to discuss the possible legal claims that they may have against the certain defendant(s).
Defendant to File an Answer and Appear
After the defendant has been served with a copy of the complaint and summons, putting the defendant on notice that a lawsuit has been filed, the defendant is required to file an answer and appear by a certain date. The defendant must file an answer, responding to the allegations of the complaint, within a certain amount of time unless the court gives the defendant permission to file the answer later. Plaintiff may have the opportunity to file an additional response to the defendant’s answer.
The general purpose of this portion of the lawsuit is to establish what the parties do and do not agree on. Once this is determined, then the parties and the judge have an indication as to what needs to be and can be focused on during the lawsuit.
For example, for a medical malpractice claim in Nevada, the parties would need to first establish fundamental matters such as whether the plaintiff was seen by or provided medical care or information by the defendant, or someone associated with the defendant. If the parties agree on this, then the parties may instead focus on things like whether the defendant had, for example, properly informed the plaintiff of the risks and benefits of a particular procedure or medication.
Discovery Stage of Personal Injury Case
Once the preliminary parts of the lawsuit have concluded, the lawsuit would then move into the discovery stage. At this stage, the parties would request information from and provide information to each other that is relevant to the main issues in the lawsuit. The information is gathered in part by written interrogatories (written questions) and requests for the other party to provide physical or digital material. The parties may also choose to conduct what is called a deposition, or verbal questioning of a witness under oath. If relevant to the lawsuit, the parties can also request documents or information from people who are not named in the lawsuit by sending out a subpoena for records.
The discovery stage of the lawsuit can last quite some time but is crucial. If one party does not request or gather relevant information to support his or her claims or defenses, then this can be detrimental to his or her chances of prevailing. Medical malpractice claims brought under Nevada law, for example, would require that the plaintiff support his or her claim that the defendant committed malpractice. To do this, he or she may need to request information and documents from the surgeon as well as any nurses or medical staff who were involved in the plaintiff’s medical care. A medical malpractice lawyer in Nevada would be able to assist the plaintiff in requesting information necessary to successfully bring his or her claim. Additionally, a medical malpractice lawyer can explain to the plaintiff what he or she must, can, and should not do or say during the discovery stage.
Following discovery, a pre-trial settlement conference is held. The purpose of this conference is for the judge to determine if the parties can settle the lawsuit without going to trial. Under Nevada law, the judge may recommend that the parties settle the lawsuit rather than go to trial.
If the parties are unable to settle the case, then the lawsuit will proceed to trial. At trial, both parties will present their case to the trier of fact. In a bench trial, the judge is the trier of fact, whereas, in a trial by jury, the jury is the trier of fact. The trial is also where evidence will be presented and witnesses will be called to the stand to testify. Following a bench trial, the trial judge will deliver the final decision (“verdict”) and decide in whose favor the judgment will be entered. In a jury trial, the jury issues the verdict and judgment is entered accordingly.
The losing party may be able to file a post-trial motion (such as a motion for new trial) to challenge the decision; however, the motion may not be granted by the trial judge or impact the outcome. Following trial, the losing party may have the option to appeal a personal injury verdict to ask an appellate court to review the case.