How the Personal Injury Lawsuit Process Works: 8 Steps of a Civil Suit

Filing a lawsuit is a powerful way to get the at-fault party to pay for your injuries. Here’s every step in the process of a civil lawsuit.

The personal injury lawsuit process is often the only way to get fair compensation for an injured victim. Insurance companies are notorious for refusing to pay high-dollar or complicated injury claims unless litigation is involved.

What is civil litigation?

Here’s what you need to know about different types of litigation, the personal injury lawsuit timeline, and what to expect in a civil lawsuit.

The 8 Key Steps of a Civil Lawsuit:

  1. When to File a Personal Injury Lawsuit
  2. Deciding Where to File a Lawsuit
  3. Filing a Summons and Complaint
  4. Preliminary Hearing and Scheduling Order
  5. The Discovery Phase of Litigation
  6. Settlement Conference or Mediation
  7. Motions and Jury Trial
  8. Winning or Losing at Trial

What Is Civil Litigation?

“Litigation” is just another way of saying “lawsuit.” The parties involved in a lawsuit are called litigants.

Personal injury lawsuits are always filed against the at-fault party, not their insurance company. The at-fault party can be an individual person, a business, or an “entity” like a homeowners’ association or government agency.

There’s a difference between civil litigation and criminal litigation.

  • Criminal litigation is when the federal, state or local government accuses a person of committing a crime. A murder trial is an example of criminal litigation.
  • Civil litigation seeks compensation for losses or failure to deliver a promised service or product. In the context of a personal injury, a civil action is filed when a negligent party causes damages to another and refuses to compensate the injured party.

Damages in personal injury cases include medical expenses, lost wages, and pain and suffering.

Civil litigation is a powerful tool for resolving disputes.

Lawsuits must be filed against the at-fault party, like the at-fault driver in a car accident, not their insurance company.

Keep in mind that even though you are filing suit against the at-fault party, their insurance company has a “duty to defend” their insured and will send experienced attorneys to fight you in court.

Most litigants are represented by attorneys. If you choose to go it alone, you will be a “pro se” litigant. Pro se is a Latin term that means “on one’s own behalf.” If you appear in court “pro se” you will be held to the same legal standards as an attorney, including the obligation to follow applicable rules of civil procedure.

Although most courts don’t strictly require an attorney for individuals, legal expertise is very important in complicated and technical cases.

Deciding whether 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.

1. When  to File a Personal Injury Lawsuit

A personal injury lawsuit is appropriate when the at-fault party or their insurance company is unwilling to fairly compensate you for your damages. If your personal injury claim has dragged on and the statute of limitations is looming, you must file a lawsuit or forfeit the right to seek compensation.

Complicated claims including medical malpractice, asbestos poisoning, and catastrophic injuries are high-dollar cases rarely handled outside of court.

More common injury cases like car accidents, slip and falls, dog bites, and premises liability claims can often be settled out of court with the at-fault party’s insurance company.

You can try to settle your claim with the insurance company or hire an attorney to negotiate on your behalf. Depending on the value of your claim, you may decide to handle your own case.

If you’re unable to negotiate a fair personal injury settlement, or your claim is denied, 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. Depending on the value of your claim, you can file in small claims court or a higher court.

A winning case requires strong facts, not strong emotions.

Take the time to 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 the other party was negligent, and their negligence caused your injuries.

If there is a dispute over fault, your proof must be stronger than the defendant’s. Ideally, you’ll also have witnesses to testify on your behalf.

If you’ve already had initial consultations with several attorneys who did not take your case, that’s a good indication there’s not enough evidence to win. Or if there is enough evidence, the potential monetary award won’t be enough to cover attorney fees on top of your damages.

In a civil trial, if you file a frivolous or weak case and lose, you may be ordered to pay the attorney fees and court costs for the winning party.

When you have a strong case, filing a lawsuit may prompt the insurance company to make a fair settlement offer. Or they may proceed to trial, which will hopefully result in a court verdict in your favor. A successful outcome is never guaranteed, so be prepared for the possibility of losing your case.

2. Deciding Where to File a Lawsuit

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.

Knowing where to file your lawsuit, known as venue and jurisdiction, 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.

Pros and Cons of Small Claims Court

A small claims lawsuit can usually be filed in the court most convenient for you so long as it’s in the state where your injury occurred.

Each state has its own rules and monetary limits for small claims courts. The amount you’re suing for must be under the limit. For example, if the monetary limit of your state’s small claims court is $5,000, and your damages are $10,000, the maximum award you can receive is $5,000.

Most small claims courts don’t allow compensation for pain and suffering. You can only recover money for measurable damages, like the total of your medical bills.

Small claims courts are designed to help individuals settle relatively small financial disputes on their own. The rules are more relaxed than in higher courts, and your case will be heard much sooner.

However, 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.

Do you need an attorney in small claims court?

There are some states that won’t allow attorneys in small claims court, although most do. There’s a good chance the person being sued will be represented by a lawyer, even if you aren’t.

Don’t worry. The judge won’t allow the attorney to bully you or use courtroom strategy. The only time a layperson 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.

An attorney from the insurance company will probably represent the defendant. In most small claims cases, if the insurance company loses less than $5,000, they won’t fight the award.  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.

Litigating in Higher Courts

If your injury case is complex and involves substantial damages, you will need the help of an experienced personal injury lawyer to get anywhere near the amount of compensation you deserve.

High-dollar cases are filed in courts with much higher monetary limits than small claims court, and knowledge of complex legal procedures is critical to success. Starting with the filing fees, it’s much more expensive to file a lawsuit in higher courts.

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

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.

3. Filing a Summons and Complaint

A civil lawsuit begins when the Plaintiff (the injured party) files a Complaint (or Petition in some states) and a Summons in the appropriate court.

Filing fees are less expensive in small claims courts than higher courts. For example, the complaint filing fees in California range from $181 in small claims court up to $435 for cases seeking more than $25,000.

From here out, we’ll be discussing the civil litigation process in higher courts. The Summons and Complaint, along with the filing fees, are submitted to the Clerk of the Court. In most court cases these days, subsequent filings are made electronically.

The Complaint sets forth the facts of your case and the legal reasons you are suing the Defendant (at-fault party). The Summons is used to notify the other party that you are suing them. It’s up to you or your attorney to properly serve the defendant with the summons and complaint.

Each higher court has its own “rules of civil procedure” for preparing and filing court documents, timelines for service and responses, and much more.

Generally, your attorney must have the defendant served within 60 days of filing the complaint. The defendant then has 30 days to respond to the summons and complaint. The plaintiff (you) then has another 15 to 20 days to reply, if warranted.

Beware of Insurance Company Attorneys

When a driver purchases an auto insurance policy or a store owner purchases a business liability policy, there’s a “duty to defend” clause stating that if the policyholder 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 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 legal maneuvers. The judge won’t be sympathetic if you can’t keep up.

In higher courts, judges strictly apply the rules of evidence and procedure. If you decide to represent yourself, you’ll be held to the same standard as an attorney. 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.

4. Preliminary Hearing and Scheduling Order

A preliminary hearing will be set within a few weeks after the summons and complaint have been served, and the defendant has had the opportunity to respond.

At a preliminary hearing, the judge meets with the parties and their attorneys to discuss dates for trial and other important milestones in the lawsuit process. After the preliminary hearing, the judge will enter a Scheduling Order that sets forth the dates and deadlines that both sides must follow.

Important events in a Scheduling Order include:

  • Discovery cut off
  • Settlement conference
  • Pretrial motions deadline
  • Trial date

5. The Discovery Phase of Litigation

As part of pre-trial discovery, opponents in a lawsuit are allowed to seek specific information from each other. The discovery phase of litigation can last from several months to over a year for complex cases.

Both sides will use the following legal tools:

  • Interrogatories – Interrogatories are a list of questions seeking detailed information about specific facts of the case. For example, they will ask questions about the plaintiff’s injuries, medical treatment, and anticipated recovery. Interrogatories frequently include questions about potential witnesses and other relevant evidence.
  • Request for Admissions – Requests for admissions are statements that the responding party must admit to being true or deny as false. For example, the defendant may ask you to admit that you weren’t injured in the car accident.
  • Subpoenas – Attorneys use subpoenas to obtain private documents, medical records, and financial records from the other side. For example, if you’re injured in a car accident and suspect the at-fault driver was texting, your attorney will use a subpoena to get a copy of the driver’s cell phone records.
  • Depositions – At a deposition, the parties are interviewed by opposing counsel. Depositions are taken under oath, usually in the presence of a court reporter or a videographer. If you undergo a deposition, you and your attorney will be provided with a transcript that you can review for errors or needed corrections.

Your attorney will help you get ready for a deposition requested by the opposing party. You’ll have plenty of time to practice answering potential questions and just as important, learning mistakes to avoid when giving sworn testimony.

It’s not uncommon for a personal injury case to settle after depositions. It’s possible the at-fault party will make some admission of fault during their deposition, tilting the evidence in your favor. Or, when the other side sees you as a very credible witness for your own case, they may settle rather than have you testify in front of a sympathetic jury.

6. Settlement Conference or Mediation

After the discovery process is complete both sides should have a better idea of the strength and weaknesses of their case. At this point, most courts require the parties to either participate in mediation or attend a settlement conference.

At a settlement conference, both sides will summarize their position to the judge. Then, the judge will typically meet separately with each side to discuss a potential settlement. The judge will sometimes act as a go-between in hopes of facilitating a settlement.

If the parties are unable to reach an agreed settlement, the case will continue as originally scheduled.

It’s important to note that settlement negotiations can continue throughout the litigation process. Many a personal injury case has settled “on the courthouse steps” the day before trial.

7. Motions and Jury Trial

Several weeks or months usually elapse between the settlement conference and the trial date. This allows time for pre-trial motions and selecting a jury.

Motions are a request to the judge to make a ruling on a legal issue.

Common pre-trial motions include:

  • Motion for Summary Judgment – asking the judge to decide who wins before trial
  • Motion to Dismiss – the defendant asks to have the case dismissed because the plaintiff doesn’t have a case
  • Motions in Limine – a request to exclude certain evidence from being presented to the jury

When one side files a motion, the other side has an opportunity to argue why the motion should not be granted.

Jury Selection and Trial

Jury selection usually takes a day or two. The number of days scheduled for a trial can vary. Most personal injury trials can be wrapped up in two or three days.

Both sides have an opportunity to interview each prospective juror. Questions to the potential juror are intended to verify the person’s suitability to help decide your case. For example, your attorney might ask if the person knows or is related to the plaintiff or the defense team, or how they feel about claims like yours.

What to Expect at Trial

The trial begins with attorneys for both sides making their opening statements. As the plaintiff, your side must prove to the jury that the defendant was negligent in causing your injuries and is therefore responsible for your damages.

Your attorney will prove your case using expert witness testimony, police reports, cell phone records, or any other type of evidence that supports your claims. Likewise, the defense will offer their own evidence and testimony in rebuttal.

You may be called upon to testify at trial. If so, your attorney will prepare you in advance so you know what to expect while on the stand.

When both sides finish presenting their cases, the judge will give instructions to the jury. The instructions help explain relevant law to the jurors. The jury may also be given a form list of questions to ask themselves to help guide them to a verdict.

The jurors are taken to a separate room for deliberations. The judge may let the jury deliberate until late in the day, or may ask the jury to come back the next day to finish deliberating. When the jury reaches a verdict, they’re brought back into the courtroom and the decision is read aloud.

8. Winning or Losing At Trial

If you win your civil court case, there’s always a chance the other side will file an 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 keep you from seeing a dime in compensation.

Sometimes, the defense attorney will offer a settlement somewhat lower than the jury award in return for the plaintiff agreeing not to appeal the case.

You and your attorney will discuss the pros and cons of accepting a final settlement.

Can You Afford an Attorney?

Before hiring an attorney, be sure your claim’s value is high enough 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.

Appellate court cases are intense, expensive, and time-consuming. Not every personal injury attorney is willing to represent you through the appeals process. If your attorney is willing and qualified to argue an appeal, the contingency fee agreement might need to be amended.

Some injury cases could potentially result in multi-million dollar verdicts. However, to win you’ll need to hire a specialized law firm with the financial stability to cover the expense of expert witnesses, electronic evidence managers, and other high legal costs.

When in Doubt, Hire a Lawyer

Many personal injury claims are complex, and become even more so when the claim turns into a lawsuit. It’s in your best interests to review your legal options with a professional. An attorney can walk you through the personal injury lawsuit process from start to finish.

Most experienced personal injury attorneys offer a free consultation, so you have nothing to lose by finding out what an attorney can do for you.

Gather the paperwork related to your injury, including medical bills, police reports, witness statements, and photographs, then make an appointment with a local attorney. You’ll be glad you did.

Regardless of the extent of your injuries, you owe it to yourself to get a professional case evaluation.

Personal Injury Lawsuit Process

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>