The movies make it look exciting and scary. Lawyers wading into witnesses
and reduce them to tears. Judges banging the gavel. Murmurs from a packed
public. Reporters taking notes. It rarely looks like that and, even when
you're in court, the trial – the part that everyone thinks of
as "going to court" – is really the last act in a long
set of escalating actions that lead up to the trial.
Prior to filing a lawsuit, lawyers will lay out their case in the form
of detailed letter to the opposing insurance company, laying out their
case and trying to settle without "going to court." But once
that fails, you don't just walk into a trial.
First, a complaint is filed with the court. It can be as short as four
pages if the judicial council forms are used, or be 25-50 pages or more
in a complex suit. In the complaint, the plaintiff – the one who
is asking for money – sets forth the general grounds for his suit.
After the complaint is filed with the court, it must be served on the
defendant and then the games begin.
Service can be complicated. In most cases, you have up to two years to
file the complaint and some firms use up all the time exhausting settlement
possibilities, or just letting their client heal. The human body doesn't
recognize legal rules; and neither do most health care providers. The
large ones like Kaiser can easily take up to two years just exhausting
all kind of "conservative" options (medication, physical therapy,
epidermal injections) before finally conceding that a patient needs surgery.
It's very difficult to settle a case when doctors still haven't
decided what's wrong with a client. So many times, the complaint is
filed even before the client is done treating, just to preserve the statute
Once served (the complaint is handed to defendant or someone living at
the defendants house or at work or they are served by publication), the
defendant had 30 days to answer. If there is insurance coverage (and few
attorneys will file a complaint if there isn't), then insurance company
steps in and assigns a defense counsel who files an answer to the complaint.
Now both parties are before the court. Time to assign a trial date? No. Not yet.
Both parties are allowed to conduct "discovery" first. They get
to send questions back and forth called "interrogatories." These
are tedious and, usually, the insurance company has all the answers anyway
from the settlement demands which have been provided. Still, they have
the right under the law to ask, and they use that right. This time, the
answers include a "verification" under penalty of perjury.
Along with the questions, documents are usually requested: everything that
supports the allegations of the complaint. In a personal injury action
involving a car, this usually includes:
- Medical documents
- Medical bills
- Lost wage documents
- Photos of the car
- Repair estimates
- Police reports
- Any witness statements
They have expanded now to included things like Facebook posts and other
forms of social media. So please, if you've been involved in an accident,
do not post anything you don't want others to see.
After these are completed, a "deposition" is set where the plaintiff
or defendant appears under oath and answers questions. They are accompanied
by their attorney and a court reporter is present. A book is made of the
questions and answer and, if the questions and answers deviate at trial,
the book is produced and the discrepancy is pointed out to the jury.
If liability is disputed, many other witnesses may be deposed. In one fire
case I was privileged to work on, these depositions went on for months
while the care (or lack of care) of the people who were responsible for
preventing the fire was pinned down. Even in simple cases, the doctors
who treated the injured person are taken, but because these doctors time
are so expensive, this is usually postponed until after the parties have
tried to resolve the case at a "mediation."
What will usually happen before the next step is for the defense to ask
the plaintiff to appear before their own doctor to be examined. They're
sometimes called "independent" medical exams, but the doctors
are never independent. They're doctors hired by the defense attorney
look for evidence undercutting the plaintiff's injuries. They then
become advocates for the defense. Some make several hundred thousand dollars
a year going from trial to trial, always finding that the plaintiff wasn't
that severely injured, didn't need the operation they received, and
basically was healthy enough to make the US Olympic team.
When the plaintiff gets to this point, the worst is usually over. What
follows typically is mediation.
Mediation is just a settlement conference where another lawyer or retired
judge is present to act like a diplomat and try to bring the parties together.
It is the most humane way to settle the dispute and good mediators are
worth their weight in gold.
Mediations can be as short as half a day. I've had one that was over
in an hour. The mediator usually introduces himself in a joint session,
and then the parties break into separate rooms and the mediator shuffles
back and forth between them until the case is resolved. Once it is, a
document is filed with the court and the case is over – without
the parties ever stepping into court.
That is how 98 percent of the cases are resolved; but then there is the
2 percent that actually have to be tried. If the case hasn't settled
at mediation, a date is selected to exchange experts. This is the point
in the case where the costs jump dramatically, so it is often postponed
until the very end. After the experts are disclosed, the parties appear
on the date for trial ordered by the court; usually a year or a year and
a half after the case is filed – longer in some crowded courts.
Does the case go to trial then? Not always. The courts frequently set two
or three cases in the same court room because they know many will settle.
The "oldest" case, the one filed first, gets to start their
case, and the others "trail" for up to a week or more, depending
on the court, in case the first one settled. After a few weeks of being
ready to put on their case with just a few hours notice, the court will
give the cases that have not been tried a new court date, usually about
six months away. And the parties do it again.
Contact Fetto Law Group in Walnut Creek today if you've been injured and need compensation.
Our personal injury attorney is backed by 30 years of experience and has
recovered more than $50 million.