Three Stages of a Trial
Stage 1: Before a Lawsuit is Filed.
At the time you hire a CHAIN | COHN | STILES attorney, the attorney obtains authorization to represent the client and obtain the client’s records. The attorney contacts the defendant and the defendant’s insurance carrier by sending a letter of representation to the defendant and defendant’s insurance carrier. While the client is recovering from his or her injuries, there is a lot of work to be done such as gathering all of the client’s medical records and bills, verifying loss of earnings and future loss of earnings, obtaining the police report, taking witness statements, taking scene and other photographs, confirming insurance coverage and other investigation to prove liability.
Once the client has completed medical treatment and has reached a permanent or stationary condition, or your attorney has verified all future medical treatment necessary, you will meet with your attorney for an evaluation of your claim. Your attorney will submit a demand for settlement to the defendant’s insurance carrier. The defendant’s insurance carrier reviews the demand, and settlement negotiations begin. Every effort is made to solicit an offer from the insurance carrier involved. If your claim is not settled within a reasonable period of time, or the defendant’s insurance carrier denies the claim, the litigation process begins.
Stage 2: A Lawsuit is Filed.
There are basically two reasons you may need to file a lawsuit.
First, an injured person is subject to a time limit (statute of limitation) in which to settle a claim. If the case cannot be settled before the statute of limitation expires, there is no alternative but to file a lawsuit to protect your claim.
Second, if a fair settlement is not obtained through negotiations with the insurance company, suit is filed and/or arbitration is demanded.
There are two participants in a lawsuit. The Plaintiff is the person(s) making the claim. The Defendant is the person(s) being sued.
A Complaint is a pleading that is filed with the proper court and states the plaintiff’s claim for damages. The Clerk of the Court issues a Summons. A Summons is a notice calling the defendant to appear and Answer the Complaint. The defendant sued has a limited time to file their first paper, an Answer. In a personal injury lawsuit, the defendant has 30 days from the date the Complaint is served (delivered) officially. It takes an average of 30 days to “serve” the defendant with the Complaint. An Answer in a civil case is the defendant’s written response to the plaintiff’s Complaint. It either admits to or, more typically, denies the factual or legal basis for liability.
Most California State courts will schedule a Case Management Conference to be held approximately 5 to 6 months from the date the Complaint is filed with the court. A Case Management Conference is a court hearing that all attorneys involved in the case are required to attend. At the conference, the court reviews the progress of a case. No appearance is necessary by the client at a Case Management Conference. The Court will then give further direction on the handling of the lawsuit.
After all defendants have filed their respective Answers, the Discovery process begins.
Discovery is a very important part of the legal process. This is where the client’s participation is critical. It is very important that the client respond promptly to your attorney’s request for discovery so that court intervention is not required.
Discovery is the formal procedure used by parties to a lawsuit to obtain information before trial. Discovery helps each party find out the other side’s version of the facts, what witnesses know, and other important evidence. The most common discovery devices include, but are not limited to:
1. Interrogatories: Interrogatories are questions sent by one party to the other party in a lawsuit in which a party provides written answers to written questions under oath. The answers often can be used as evidence in the trial. The written answers are answered under oath. The client’s participation in answering Interrogatories is mandatory.
2. Request for Production of Documents: Request for Production of Documents is a request to a party to produce certain defined documents. The Response and production of the documents can be used as evidence at trial. The written response is under oath. The client’s participation in gathering documents and responding to the Request is mandatory.
3. Deposition: A deposition is a question-and-answer session conducted by the lawyers who interview witnesses and parties. A deposition is the sworn testimony of a party or witness, and is usually taken at an attorney’s office. The party or witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded by a court reporter. If a witness is not available to testify at trial, the deposition may be used in their absence. If the deposition is of a client, the attorney will meet with the client prior to the deposition to properly prepare the client for his or her testimony. If the deposition is of the client, the client’s appearance is mandatory. If the deposition is of opposing parties or witnesses, the client’s appearance is not necessary.
4. Request for Admission: Request for Admissions are requests to a party to admit or deny certain facts. One party sends the other a request for admission so that certain issues can be agreed upon before trial. If a party admits to certain facts, they need not be proven at trial. The client’s participation in responding to Request for Admissions is mandatory.
5. Defense Medical Examination: A defendant is entitled to chose a physician to examine the plaintiff and render a defense medical opinion on the injury at issue. Before the examination is held, your attorney will meet with the client and prepare him or her for the examination. Your attorney may also attend the examination with the client. The client’s attendance at the medical examination is mandatory.
The scope of information obtainable through discovery is quite broad and not limited to what can be used in a trial. Most State courts allow a party to discover any information “reasonably calculated to lead to the discovery of admissible evidence”. Because of this broad standard, parties often disagree about what information must be exchanged and what may be kept confidential. These disputes are resolved through court rulings on discovery motions.
After Discovery is completed, an Alternative Dispute Resolution procedure such as Arbitration or Mediation may be utilized, if appropriate, to resolve a client’s case.
An Arbitration is a method in which the disputing parties agree to abide by the decision of an arbitrator who is an impartial third person. When parties submit to arbitration, they may agree to be bound by and comply with the arbitrator’s decision, unless the court orders the case to arbitration in which case the arbitrator’s award is non-binding. The arbitrator’s decision is given after an informal proceeding where each side presents evidence and witnesses. Each party has 30 days to accept or reject the arbitrator’s decision. If a party rejects the arbitrator’s decision within the time allowed, the case will be scheduled for Trial by the court.
A Mediation is a method in which a neutral third party helps resolve a dispute. The mediator does not have the power to impose a decision on the parties. If a satisfactory resolution cannot be reached, the parties can continue with their lawsuit. The mediator does not have the power to impose a solution on the parties.
Stage 3: Trial
At the Case Management Conference, the judge may set your case for Trial. The assignment of the trial date is beyond the control of any party to the lawsuit since it depends solely upon the court’s schedule.
A civil jury Trial is where a jury decides any disputed issues of fact. A Trial is held in front of the judge assigned to your case. The number of jurors is usually 12. In a jury trial, the jury is selected by the parties through a process called voir dire, where the judge or parties ask jurors questions in order to determine their biases and opinions. Each side is allowed to reject a certain number of potential jurors. After the jury is chosen and sworn in, the parties give opening arguments, present their evidence and give closing arguments. The jury then deliberates. When it reaches a decision, it returns to the courtroom and announces the verdict.