“How long will my case take?” This is usually the first question a client asks their personal injury attorney. The follow-up question is, “Why does it take so long?” Unfortunately, trials in the real world take much longer than on TV, where a quick cut to closing arguments removes weeks or months of trial preparation.
Why does it take so long to bring a case to trial? Simply put, there is more going on behind the scenes than clients ever see. Once they have retained an attorney, they may have very little contact with the machinery of the legal process until it's time to go to court.
Step One: Investigating the Claim
The first thing the attorney and the legal team must do is investigate the claim itself. This can take several days or weeks, depending on the nature of the claim.
For instance, suppose a client was involved in a car accident. The other driver’s insurance company denied the client’s claim on the grounds that both parties were equally at fault. The client has come to the attorney to try to get the insurer to pay up.
The attorney must gather all the client’s information. This may include:
- Medical reports, such as doctor’s notes, hospital records, emergency room treatment reports, etc.
- The police report from the accident, including any photos the responding officer may have taken, videos of the scene, and other documents.
- Witness statements, if any are available.
- The client’s insurance policy and driving records.
The attorney will review all these documents to determine if the client has an “actionable” case. This means the case has a likelihood of succeeding on its merits. For instance, if the police report reveals that the client was intoxicated at the scene, the client will not be able to prevail at trial.
Gathering all these documents can take time if the client doesn’t bring them to the first meeting with the attorney. In some states, only the patient can obtain their medical documents from their doctor without a subpoena or court order. Getting police reports from the state can take 10-15 days if the client has all the data. Based on all of these factors, it may take up to a month for the attorney to review the client’s case.
Step Two: Negotiation
Before litigation can begin, most attorneys will attempt a good-faith negotiation with the opposing party. There are several reasons for this, including:
- Duty to exhaust administrative remedies. Some insurance policies have a clause that requires the policyholder to resolve an issue before resorting to litigation. As a result, an attorney may have more success talking to other attorneys than the client.
- Communication with the opposing party can reveal information that isn’t in the files. For example, although the other party’s attorney cannot reveal confidential information, talking over the case can bring up other data that the attorney needs, such as the names of other involved parties that the client may not know.
- Settlement may be possible. Sometimes the client may not be asking the right questions or submitting the correct documents. In some cases, all that is needed to correct the case is for an attorney to fix problems that the client didn’t know needed fixing.
- Negotiations are ongoing. Negotiations will continue even as trial preparation begins.
Step Three: Filing the Case
Filing the case is the first step in going to trial. The plaintiff’s attorney must file a complaint. This is when the client will ask, “How long will this take?” Once the complaint is filed, there are deadlines that must be met to keep the case on track.
Complaint, Service, Answer
After the complaint has been filed and received by the court, it must be served on the defendant. In the case of the car accident victim, the complaint must be sent to the insurance company and their attorneys. The case does not officially begin until the complaint has been legally delivered to the defendant. Service can take a few hours or several days, depending on how it is accomplished.
Once the complaint has been served, the defendant must answer the complaint. Each state has its own rules for how long a defendant has to answer. In most states, it is 30 days, but in some states, it is much less. Louisiana, for instance, requires an answer in 15 days. Most attorneys will wait until the last day to file their answer as a maneuvering tactic. It is rare to receive an answer sooner than that.
First Court Appearance
Once the answer has been filed and served to the plaintiff, the plaintiff’s attorney asks for a court date to set the case for trial. At this initial hearing (sometimes called a case management conference), the judge will set several dates on which the attorneys must meet and confer (called, surprisingly, “meet and confer” conferences), and review the status of the case.
The judge will also set the tentative date of the trial. The trial date will be set at least a year in advance to allow enough time for the attorneys to complete all their preparation.
At this first court hearing, the defendant may challenge the validity of the case, claim that the case was filed in the wrong jurisdiction or the wrong court (venue), or that the plaintiff cannot bring the case for various reasons.
The judge may also order the parties to mediation or arbitration before litigation can begin.
Step Four: Discovery
Discovery is the meat of a civil case. Discovery is “the formal process of exchanging information between the parties about the witnesses and evidence they will present at trial.” Gathering and exchanging discovery is the longest and most complicated process of pretrial preparation.
Interrogatories and Requests
One type of discovery is the interrogatory. Interrogatories are lists of questions that the parties exchange and answer. For example, a typical interrogatory might ask:
- Who was riding in the vehicle with you? Please provide their names and contact information.
- What medications are you currently taking? Please provide the names and addresses of prescribing physicians.
- Have you received medical invoices from the treating physician since filing the lawsuit? Please provide copies of all invoices.
Interrogatories can be lengthy and detailed, and ask for specific responses to questions asked in previous interrogatories. States limit the number of interrogatories that can be served on any party in a case. For example, in Louisiana, no more than 35 interrogatories can be served without permission from the court.
There are several types of requests. Like interrogatories, requests are written questions that ask for written responses or documents.
- A request for admissions asks the respondent to admit certain things for the record. Some things are obvious, such as, "Admit you resided at 123 Maple Street in 2011.” Some are intended to gather information about the case, such as, "Admit you own a red Honda Accord, license 123XYZ.”
- A request for production or request for documents asks the respondent to provide copies of documents or objects in their possession. Depending on the case, it could be copies of police reports, service invoices, or even pieces of the damaged vehicle.
A deposition is “a witness’s sworn out-of-court testimony.” Anyone involved in a case can be deposed. Depositions are carried out under oath, are usually audio-recorded and videotaped, and are recorded by a court stenographer.
Written depositions are sometimes used if the deponent cannot be orally deposed. Written depositions are not as useful as oral depositions because the witness can’t be cross-examined during the process. Unlike interrogatories, written depositions are signed under penalty of perjury.
Responses and Schedules
Whenever one side serves an interrogatory or request, the opposing side must have time to respond. In Louisiana, the responding party has 30 days to answer a request for discovery. Some states allow up to 45 days for an answer. Parties may petition the court for an extension to file an answer, and most courts will grant reasonable extensions.
Depositions must be scheduled at the convenience of the deponent. Both attorneys must confer with their clients and one another to arrange a suitable time and location for the deposition. Louisiana has no statutory limit to the length of a deposition, so the attorneys must also arrange the length and agree on when it should be terminated or continued.
Step Five: Pretrial Hearings
During the discovery process, the court has scheduled several hearings, known as case management conferences. These hearings require the attorneys to appear before the judge assigned to the case and update the judge and each other on their progress.
Case management conferences also allow attorneys to petition the judge for extensions of time to answer requests and interrogatories, make preliminary rulings on evidence, and handle other issues that may hinder the trial.
Step Six: The Last 100 Days
As you can see, preparing a case for trial is complicated and takes a very long time, even under ideal conditions. However, once a final trial date is set, and everyone is ready, things move more quickly, but the deadlines become fixed, and there are fewer chances to change anything.
During the last 100 days before trial, lawyers must:
- File a Notice of Ready for Trial. This is served on the other party, so they know you are prepared to go to trial, and it helps the court set a final court date.
- Review Discovery. All discovery is reviewed, and nonresponsive answers are followed up.
- Locate Expert Witnesses. Expert witnesses must be located, if they will be needed for the case, so they have time to appear.
- Prepare for a Motion for Summary Judgment. A summary judgment is a request by one side for judgment on the grounds that the other cannot prevail at trial. Either you must move for summary judgment or prepare to defend against one.
- Ensure All Witnesses Can Appear. If witnesses will be physically unavailable due to distance, age, or health, file a request for a telephonic appearance. This must be done early because the other side will oppose it.
- Subpoena Witnesses. Subpoena witnesses, if necessary, especially the police, records officers, and other government officers.
- Subpoena Documents. Subpoena specific documents and records if necessary. For example, some businesses will not release medical records or detailed phone records without a court order.
- Prepare Witnesses for Trial. Interview opposing witnesses, if possible, and prepare your witnesses for the questions they are likely to answer in court.
- Make a Final Settlement Offer. In some cases, opposing counsel may review all their own discovery and decide that settlement will be preferable to a court battle.
Preparing for Trial: Putting it in Perspective
An imaginary trial timeline might look like this from start to finish. The accident happened on January 1. The client came to their attorney on January 10, and the complaint was filed and served on January 15.
- The defendant’s answer is not due until January 30.
- On February 1, the defendant files their answer with the court.
- The next available court date for the first hearing isn’t until June 15. Court calendars are crowded, and this is the soonest date the judge’s assistant could fit your case in.
- Also on February 1, the defendant’s attorney sends you a Request for Admissions and a Request for Production of Documents. Those are due March 2, which is a Saturday, so your attorney tells you they will be due on March 4.
- Your attorney sends the defendant your Requests and Interrogatories on February 5. They will be due March 5.
- On March 1, your attorney’s paralegal gets a call from opposing counsel. Their client has had trouble getting all their documents, and they’re going to file a motion for an extension unless you agree to an informal extension. Your attorney agrees to a 30-day extension if they give you the same consideration. The Requests and Interrogatories will be due on April 1 instead.
You’re four months into the case, and it seems as if nothing has happened. And when the judge sets your case for trial, it will probably be sometime next year, both because the attorneys need the time and because the calendar is full of cases that were filed last year. This should not be seen as a reason to avoid going to trial. Some cases have issues that must be heard by a jury and decided by a judge.
The talented lawyers at Morris & Dewett understand how frustrating a long trial procedure can be, and work tirelessly to ensure your case reaches court as smoothly and efficiently as possible. To learn more about how Morris & Dewett can help you, fill in this form for a consultation today.