If you've decided to file a personal injury case, you're probably wondering what to expect in terms of the process. Will you just need to make an insurance claim, or will you need to file a personal injury lawsuit in court? While it's true that most personal injury cases settle out of court, in rare instances a case may make it all the way to trial in civil court. Let's take a closer look at when (and how) this happens.
The main reason a personal injury lawsuit makes it all the way to the trial phase is that the parties are too far apart when it comes to a key issue, and one or both sides are unwilling to budge. The most common points of contention revolve around two questions:
This kind of impasse also needs to be accompanied by a fair amount of confidence (or stubbornness) on the part of one or both parties. The risks of trial are high: the plaintiff could walk away with nothing, or the defendant could be ordered to pay millions of dollars in damages.
Some courts stick to what is known as a "rocket docket," where lawsuits are processed quickly. Personal injury lawyers really have to hit the ground running in these courts, because the lawsuit will generally get to trial about nine months after the lawsuit is filed (lightspeed by lawsuit standards). Judges in these states don’t want to hear excuses about why a lawyer is missing discovery deadlines or isn’t ready for trial. The trial dates in those courts are as set in stone as any trial date can be.
But even in a rocket docket court problems in the discovery process can delay trial. If, for example, the defendant consistently refuses to produce requested documents, that can slow discovery down to a crawl. Your lawyer might have to file a motion to extend the discovery deadline to get the necessary documents (although in a rocket docket court, any extension of the discovery process will be a very short extension). Of course, this might be exactly what the defense attorney wants: to slow down the process and drag things out.
Certain courts are known for processing cases slowly. This can be due to court culture, i.e., because cases have always moved slowly, they still move slowly today. Or the court might be insufficiently staffed. There simply aren’t enough judges and clerks to move cases quickly. But whatever the reason, in some states it can take two or even three years for a personal injury lawsuit to get to trial.
You will almost certainly have to testify. It’s your case, and the jury will be looking to hear from you right off the bat.
There's no such thing as being "too prepared" for trial. Any good lawyer will start preparing you at least a couple of weeks before trial. One key to a good trial outcome is consistency. You don’t want the defense attorney ripping you apart on cross-examination because your trial testimony conflicts with what you said at your personal injury deposition. Example: “You just testified that the light was green at the time of the collision, but, at your deposition, you testified that the light was yellow, isn’t that true?” No one wants to be confronted with that type of cross-examination.
Stick to the "Script"
The secret to trial testimony is that neither you nor your lawyer want any surprises in the courtroom. Direct examination of the plaintiff in any lawsuit should essentially be scripted. When you take the stand, you should know exactly what questions your lawyer is going to be asking you, and in what order. And, just as importantly, your lawyer should know what all of your answers are going to be.
It's fairly common for a civil trial to get postponed, even at the last minute, and trial can be postponed for months. And postponement can happen a number of times, depending on the practices and characteristics of the court and the specifics of your case.
The first thing to know is that criminal defendants get priority over parties in a civil lawsuit, since criminal defendants have a constitutional right to a speedy trial. So, in states where the same judges hear both civil and criminal trials, a civil trial might get postponed to ensure that a criminal trial is not unconstitutionally delayed.
Sometimes civil trials get postponed simply because a previous trial took too long, or an inordinate number of lawsuits scheduled for trial failed to reach settlement. Judges and clerks often schedule several cases for trial at the same time, knowing that most of the lawsuits are going to settle before a trial can take place.
