The Ins and Outs of Civil Litigation for Personal Injury Cases



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Civil litigation is a legal process of resolving disputes between two or more parties. Examples of civil litigation include breaches of contract, divorce and custody matters, restraining orders, and personal injury actions. "Litigation" is just another way of saying "lawsuit." Those involved in a lawsuit are called litigants.

There's a difference between civil litigation and criminal litigation. Criminal litigation is when the government (city, county, state, or federal) formally accuses a person of committing a crime, and puts the accused before a judge or jury to be tried.

Most litigants are represented by attorneys. Those who don't have legal representation are referred to as "pro se" litigants. Although most courts don't strictly require an attorney, legal expertise is very important in complicated and technical cases.

In civil court cases, the party filing the lawsuit is referred to as the plaintiff or petitioner, and the person being sued is called the defendant or respondent.

Most civil lawsuits concern matters related to money, and almost never result in someone going to jail. Cases are litigated in a variety of courts, including small claims courts, municipal courts, county, state and federal courts, and state and federal courts of appeal.

In rural areas with low population, civil lawsuits and criminal cases are sometimes tried in the same court. In these areas, there's usually not enough cases, civil or criminal, to require separate courts and separate judges. Because of the lower number of cases filed in these courts, judges have ample time to hear both criminal and civil actions.

Civil Litigation for Personal Injuries

If you find yourself unable to negotiate a fair personal injury settlement, the next step could be arbitration or mediation. If those options aren't available, your next and final step may be to file a lawsuit. Civil litigation is a powerful tool for resolving disputes.

Filing a lawsuit may prompt the insurance company to make a fair settlement offer. Or, they may continue with trial, which will hopefully result in a court verdict in your favor. A successful outcome is never guaranteed however, and you should be prepared for the possibility of losing your case.

Deciding whether or not a lawsuit is right for your situation requires a thorough understanding of the issues. Your decision should be objective, not based on anger or frustration. Let's review some issues to consider before filing your suit...

Where to File Your Lawsuit

Knowing where to file your lawsuit, known as venue, is crucial. Do you file in the county where you live, where the injury occurred, or where the defendant resides or does business? Often, a lawsuit can be filed in more than one district, but making a mistake can result in your case being dismissed.

A small claims lawsuit can usually be filed in the court most convenient for you. If your injuries are serious, and you plan to file a lawsuit in a higher court, speak with a lawyer before moving forward. A lot goes into choosing the proper venue for a serious injury case. Your lawyer will know which is the right venue for you.

Monetary Limits

The amount you're suing for must be within the court's maximum monetary jurisdiction. If you file suit in a court without jurisdiction over your case, you could be facing a prompt dismissal. Almost every level of the civil court system has specific maximum jurisdictional limits.

For example, if the monetary limit of your state's small claims court is $10,000, and your damages are $15,000, the maximum verdict you can receive in small claims court is $10,000. To receive a $15,000 verdict, you'll have to file in a court with a higher jurisdiction.

Filing fees in higher courts can be two to three times those of small claims courts. You'll also need more money to effectively litigate your case. Copying, document production, and mailing costs can quickly add to your expenses. If filing in higher court, you'll definitely need an experienced personal injury attorney to handle your case.

Is Your Case Winnable?

Before proceeding, make sure you have enough credible evidence to win a civil trial. Whether in small claims court or a higher court, your opinion means very little. You must have proof, and your proof must be stronger than the defendant's. You also must have witnesses to testify on your behalf.

If you've already visited with several attorneys who reviewed your case and decided not to accept it, that's probably a good indication there's not enough evidence to win. Or if there is enough evidence, the attorney believes the monetary award won't be enough to cover his fees and costs.

Attorney's Fees

Before you retain an attorney, you should know if your case warrants a high enough award to cover both your damages (medical bills, lost wages, out-of-pocket expenses, and pain and suffering), and your attorney's fees.

The contingency fee of most personal injury attorneys is 33.3 percent of a negotiated settlement, rising to 40 percent once a lawsuit is filed. Any of your attorney's out-of-pocket costs to prepare your case will be added on top of the contingency fee.

In civil litigation, whether in small claims court or a higher court, when you represent yourself and lose, there's a good chance the defendant will ask the judge to order you to pay his attorney's fees and court costs. If the judge thinks your case was frivolous, or the merits of your case were weak, she may agree.

Insurance Company Attorneys

When a driver purchases an auto insurance policy, or a store owner purchases a business liability policy, there's a clause in it stating that if the policy holder is sued, the insurance company will provide legal representation. With few exceptions, the company must provide an attorney for its insured, whether in small claims court or in a higher court.

Insurance company attorneys are paid to win cases, and they'll do just about everything in their power to win. If you decide to represent yourself in a higher court, they are likely to overwhelm you with motions, depositions, pre-trial tactics, and more. The judge won't be sympathetic if you can't keep up with legal procedure.

In higher courts, judges strictly apply the rules of evidence. These judges have full dockets and little patience. As a result, it won't take much for them to dismiss your case. If you miss a deadline or fail to meet a time limit for a motion, you'll be out the door with empty pockets and a folder full of unpaid bills.

As part of pre-trial discovery, the defendant's attorney will want to take depositions from you and your witnesses. You'll have to take time off work to sit in the attorney's office and answer a barrage of questions. Depositions can take hours. Independent attorneys hired by insurance companies are usually paid by the hour, so they have no incentive to rush.

Postponements and Appeals

If you win your civil court case, there's always a chance the insurance company will appeal. An appeal can take months, sometimes even years. You can be sure the insurance company's attorney will take advantage of every opportunity to have the case postponed.

Appeals from small claims court are often "de novo," meaning the case starts over again from the beginning, as if the trial never occurred. This is because most small claims courts don't have court reporters, so they aren't considered Courts of Record.

Small Claims Court

Your best chance of winning a minor personal injury lawsuit is in small claims court. Legal procedures are relaxed, and you won't have to worry about objections, hearsay, or other legalese. But even though the atmosphere in small claims court is less formal than in higher courts, you still must be thoroughly prepared if you want to win.

The defendant will probably be represented by an attorney from his insurance company. Don't worry, the judge won't allow the attorney to bully you or use courtroom strategy. In fact, the only time a layman might be on equal footing with a skilled attorney is in small claims court. If you're honest, well prepared, and the facts are on your side, you'll probably win your case.

In most small claims cases, if the insurance company loses less than $10,000, they won't file an appeal. Although the company has the right to appeal the decision, it's simply not worth it for them when it's such a small amount.

Higher Courts

If your personal injury case is complex and involves substantial damages, you must have an experienced personal injury attorney represent you. These cases are filed in courts with much higher jurisdictional limits than small claims court, and knowledge of complex legal procedures is critical to success.

Proceeding without an attorney in any court higher than small claims is a disaster waiting to happen. These higher courts follow strict rules of evidence, permit extensive pre-trial discovery, and otherwise allow attorneys to vigorously represent their clients.

Attorneys are experts who enter court prepared for a legal battle they expect to win. Representing yourself in a higher court puts you at a severe disadvantage - you just can't compete at the same level. If your case is serious, get an attorney.

Case Study:

Lawsuit Where Both Parties Agree to Settle After Hung Jury
In this whiplash settlement case the plaintiff is seeking damages for injuries sustained in a car accident, but the lawsuit stalls when the jury becomes deadlocked and the judge declares a mistrial.

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