Most personal injury cases settle long before they reach the trial stage, despite a lawsuit potentially meaning a much higher compensation payout. It can take time to negotiate an acceptable settlement in a typical claim, and many plaintiffs don’t want to delay a resolution any further by filing a lawsuit.
There is also an element of risk, as the decision could go either way. A jury could find in your favor, which could mean a hefty payout, but they could also decide against you. This risk on both parties results in many settling on an agreed sum — even if it takes a bit of back and forth to reach that stage.
While it’s likely that your personal injury claim will settle and you won’t even have to entertain the idea of standing in front of a judge, personal injury trials sometimes happen. But what is the personal injury lawsuit process? Here, we explain what to expect if you go to trial and the stages of a lawsuit.
How Many Personal Injury Cases Go to Court?
Given the risk of going to trial and that many personal injury claims result in a satisfactory settlement, it shouldn’t be a surprise that the percentage of civil cases that head to court is in the low single digits.
So why might a personal injury case result in a lawsuit?
It often happens because the personal injury lawsuit settlement offer is well below what a plaintiff (the person bringing the claim) is entitled to.
Insurance companies are notorious for making low offers. It’s in their best interests to pay out as little as possible. Sometimes, companies will use underhand tactics to dispute liability and decrease the amount they pay out. Such tactics include putting pressure on emotional plaintiffs to settle early to avoid lengthy negotiations and tricking accident victims into apologizing so that they can attribute blame.
If an insurance firm is particularly stubborn and your lawyer believes you deserve more and have a strong case, they may advise going to trial.
Filing a personal injury lawsuit may also be necessary when the insurance company denies a claim or argues other parties — including you — are partly responsible for the accident.
The Personal Injury Lawsuit Settlement Process: Steps in Filing a Lawsuit
While the outcome of a personal injury court case hinges on a single moment — when a jury reaches a verdict — much of the work that goes into securing a win happens in the months and years before it even goes to court.
Step 1: Filing Your Personal Injury Lawsuit
The first stage of a lawsuit is to file a complaint — typically with a district court. However, if the estimated value of your claim is between $200 and $10,000, you can file a lawsuit in a county-level court.
The complaint is a critical document in your personal injury lawsuit, as it outlines the facts of the case and your losses. These losses are the damages you seek and may include your past and future medical expenses, lost wages and compensation for pain and suffering, emotional distress, and loss of enjoyment.
The defendant has 21 days to respond to — or “answer” — a complaint unless they are a federal employee, in which case the deadline is 60 days.
In rare cases, the defendant will not answer a complaint, allowing you to request a default judgment from the presiding judge. This judgment grants you a win “by default” because the defendant failed to defend the lawsuit. The court will then determine the damages you are entitled to based on your evidence.
The defendant will often answer in one of three ways:
- Filing a motion to dismiss: A motion to dismiss is an application to the court to throw out the lawsuit. The defendant’s lawyer may cite several reasons for this motion, including a lack of evidence, but the most commonly cited reasons are procedural, such as serving the lawsuit incorrectly. A judge may grant this motion if the complaint names the wrong party or the name and address of either party are absent, making it crucial to ensure the complaint is error-free.
- Filing a motion for a more definite statement: This motion is a request from the defendant for more information, for example, why the plaintiff is taking legal action, clarification on the damages sought, or a more detailed account of how the accident occurred.
- Filing a counterclaim: Finally, the defendant may answer a personal injury complaint with a lawsuit. A counterclaim is a common tactic, especially if a defendant has also sustained injuries in an accident and believes the plaintiff (you) is responsible.
If there is no default judgment or the parties do not otherwise settle, the case advances to the next stage of a lawsuit.
Step 2: Discovery
The discovery phase is the process of gathering evidence in a lawsuit. It begins when settlement negotiations are unsuccessful and primarily involves asking questions through in-person interviews (called depositions) and written questions (interrogatories). The answers to such questions are recorded and given under oath.
Depending on your case, the depositions and interrogatories your personal injury lawyer presents might include interviews with key witnesses to your accident. Your lawyer will also seek testimony from medical experts who can attest to the seriousness of your injuries and their long-term impact.
The plaintiff and defendants in a lawsuit exchange evidence before the case formally advances to trial.
Step 3: Negotiation and Mediation
Negotiation and mediation are dispute resolution methods undertaken during the personal injury lawsuit process. Negotiation is between the parties — usually with each side’s attorney acting as an intermediary — to reach an acceptable resolution without proceeding to trial. Negotiation can still be successful at this stage, even if you couldn’t agree during the insurance claims process, as the stakes are much higher and both sides have more to lose.
Meditation is a more formal process involving a neutral third party facilitating talks between the parties and helping them find common ground. It’s the meditator’s job to explore possible solutions, not impose a decision.
These alternative forms of dispute resolution are typically ongoing throughout each stage of the lawsuit. The parties may settle at any part of the process, from early in the discovery phase to as late as jury selection.
Step 4: Jury Selection
Before the trial can begin, you need a jury. The jury will listen to the evidence presented and deliberate on the verdict. Both parties engage in jury selection — or voir dire — during which both sides will ask the potential jurors questions to determine who is a good fit.
For example, if you’ve filed a lawsuit because you were in a car accident, and a potential juror recently lost a loved one in a car accident, they are likely sympathetic to your injuries. While this person would be a worthwhile juror for you, the defense counsel would have grounds to strike the juror because they may not be truly impartial.
Potentially biased jurors will be eliminated during jury selection until 12 remain.
Step 5: Opening Statements
The trial will formally begin with opening statements, when both sides summarize the case and explain what they plan to present during the trial.
In a personal injury lawsuit, the burden of proof lies with you. It is your — or your lawyer’s — responsibility to prove that the defendant was negligent and that this negligence caused your injuries. As you are the plaintiff — the party bringing the claim — your attorney will deliver the first opening statement.
There is no limit on how long an opening statement might take, but it’s typically in the best interests of everyone involved for your lawyer to get their points across clearly and succinctly. Some judges may limit how long an opening statement should be, and your lawyer should also be mindful of the jury. Attention spans can wane, but you have the advantage of a jury being alert at the beginning of the trial and the primacy and recency effect, which is the concept that we remember the first and last things we’ve heard.
Once both sides have delivered their opening statements, the trial moves to the next stage of the lawsuit: presenting the evidence.
Step 6: Presenting the Evidence
This part of the personal injury lawsuit process typically takes the longest. In this phase, both sides will call any witnesses they wish to question and present documents that serve to prove their case.
For example, your lawyer may call upon a medical expert to testify. During the testimony, your lawyer may ask the witness to comment on previously submitted x-rays or other medical records to show the extent of your injuries.
Once your attorney has finished questioning a witness, the defense can cross-examine them.
During this stage, your attorney may call you to testify about how your life has changed due to your accident and the injuries you sustained. Your personal injury lawyer will ensure you’re at ease and fully prepared to answer their questions on the stand. They’ll also advise on what defense counsel may ask you during cross-examination.
Once your attorney has questioned all witnesses and submitted all evidence, they will “rest,” and the process will begin again on the defense’s side. If the defendant initially responded to your complaint with a counterclaim, they will also present their case in chief to prove you are liable for the accident.
If the defense presents evidence, you have one more opportunity to address any weaknesses the other side may have introduced during their case. The rebuttal phase is your right as the party that filed the lawsuit. You cannot restate your case during the rebuttal — the scope is limited to the evidence the defendant has introduced. For example, if you call an expert during your case and the defense calls an individual who contradicts their testimony, your attorney may recall their witness to address any holes the jury may latch onto.
Step 7: Closing Arguments
Once both sides have presented the evidence, the case will advance to closing arguments. Both attorneys will recap the case and all the evidence presented to persuade the jury to find in their favor during this part of the personal injury court process.
Step 8: Jury Deliberation and Delivering the Verdict
After closing arguments, the judge will provide jury instructions and dismiss the jury to begin deliberations.
The jury will ultimately determine whether you have met the required burden of proof.
You may be familiar with the phrase “beyond a reasonable doubt.” This burden of proof applies to criminal cases, where the jury must find a defendant guilty beyond a reasonable doubt — otherwise, they must deliver a not-guilty verdict.
The burden of proof in civil cases is slightly different and not as high. The standard is “by a preponderance of the evidence” — or more likely than not.
For example, a jury may doubt a witness’s testimony, but most evidence may point to the defendant being negligent. This evidence may still satisfy the burden of proof — the defendant was, by a preponderance of the evidence, negligent in causing your injury.
The jury won’t just consider the evidence and whether a defendant was at fault. They will also consider your financial losses to determine an appropriate settlement and assess whether punitive damages apply. These damages (also known as exemplary damages) punish the defendant for their behavior. A typical example is if the defendant caused your accident because they were intoxicated.
Once the jury has reached a majority verdict, they will notify the bailiff and return to court. Texas law does not require a unanimous verdict in a civil lawsuit, but 10 of 12 jurors must agree.
You won’t receive compensation if the jury finds the defendant not liable, but a favorable verdict will result in an award to you, the plaintiff.
If your lawyer took on your case on a contingency basis — meaning you only pay legal fees if you win — the costs are deducted from your final award.
The personal injury court procedure can be long and trying, but your lawyer will do all they can to relieve stress and fight for a successful outcome. In most cases, you won’t have to think about the steps in filing a lawsuit, but it’s always worth understanding what will happen if you can’t get the settlement you deserve.
Not sure if you have a claim? Contact the leading personal injury lawyers in San Antonio and McAllen for a free consultation to see where you stand. We will fight to get you the maximum possible compensation and aren’t afraid to file a lawsuit to secure the payout you deserve. Call 855-LAW-NINJA, submit a contact form, or visit us in McAllen or San Antonio.
