When it comes time to make a decision about whether or not my clients want to accept the top, pre-filing offer from the liability insurer or file a lawsuit and litigate the case, often times they want to know: “What is expected of me in the litigation process as the Plaintiff (the person bringing a bodily injury lawsuit)?”
Everyone is busy. Life is crazy. Time is our most precious commodity. That is true of every human being. So, it's understandable, that injured people with valid claims are concerned about how much of their time the litigation process might consume. And, litigation is time consuming for all involved: the attorney for the injured claimant; the attorney for the insurance company; the staff at each respective attorney's office; the court in which the lawsuit is filed; the adjuster and the insurance company; the medical providers for the injured person; and, for the injured person themselves. No doubt.
More than just time, the litigation process can be an energy drain, mostly for the injured claimant. This is because the injured claimant ultimately bears the burden of proving: the third party was at fault in causing their injuries; in proving what their injuries were, specifically; in proving that those injuries were in fact caused by the incident at issue; in proving what it took for them to get past those symptoms working with their medical providers; and, in proving the affects that those symptoms and injuries had on their everyday life during the time it took them to get better. The litigation process can seem like the injured claimant is being grilled and “put on the trial”, because the injured claimant bears the burden of proof. Often times injured claimants are sensitive to possible implications that they are trying to commit some sort of fraud or are lying or otherwise.
But, lawsuits are necessary. The insurance industry business model is to pool as much money as possible and retain that money as long as possible so that pooled money can draw interest and make additional money simply by sitting in the insurance companies reserves. So, any money that the insurance company doesn't retain is losing them even more money than they actually give up (because they're also losing out on the interest it would have generated). This creates a situation where insurance companies are loathe to give up anything to injured claimants, even where appropriate compensation is due. There are many reasons beyond simply putting the insurance companies' collective feet to the fire that lawsuits are necessary, too: public safety, exposing bad conduct to the public, settling legitimate disputes, etc.
So, even if it might take some time and even if it might drain some energy, litigating personal injury cases is a more than worthwhile pursuit and you can work with your attorney to decide whether or not it is the right move for you under all of the circumstances that exist at the time this decision is made. Further, your attorney's office will endeavor to limit the amount of time you have to spend on the litigation process and the factors that might drain your energy—we certainly make those efforts in our office.
Speaking very generally, the most time consuming phases of litigation and the likely time commitments they might require of you as a personal injury claimant or as follows:
- Discovery - In Washington, there are written questions exchanged between parties to litigation called interrogatories. These questions require your assistance to answer. There are often many questions about your background, medical history, the incident you are bringing suit regarding, etc., that you know the answers to far better than us. Your attorney and his or her staff will assist you in drafting and finalizing the answers as appropriate, but initially it will take a time investment on your part to provide the information necessary to answer these questions as completely as possible.
Typically, a blank copy of the questions will be sent to you so you can start penciling in your answers prior to meeting with a paralegal on the case and ultimately meeting with the attorney on the case to complete and finalize your answers. The work you do at home in tracking down the information to respond to those questions and write in your answers could be anywhere from three to 10 hours. There would also be one or two hour-long meetings with the paralegal and/or attorney.
In both Washington and Oregon there are written requests for production of documents allowed. In Washington, these requests typically accompany the interrogatories. These may require you to track down responsive documents, if there are any, or at least make a reasonable effort to do so. That could add a little time to the projections above on Washington cases.
In Oregon, there are not interrogatories and so all that would be required of the injured claimant would be to make a reasonable investigation of any responsive documents to the other parties requests. Oregon's limited discovery means this aspect is not as time-intensive on the injured claimant and the attorney.
- Deposition – More often than not your deposition as an injured claimant will be one day or less. Possibly just a matter of a few hours. Often times, though, you will be asked to have an in-person or telephonic meeting with your attorney in advance of your deposition to talk about the proceeding, among other considerations. The meeting with your attorney would probably be somewhere between one to three hours, depending on the complexity of the case or the issues involved.
- Defense medical exam – Often times, the other side may be able to secure an opportunity to have you examined by a doctor they hire to form opinions about what affect, if any, the injury-producing incident had on your physical or mental well-being. In these instances, you may have to take time out of your schedule to attend one of these examinations, or more, but not likely more. There's often an interview associated with the exam, but on the whole this typically doesn't take much time. You could anticipate the exam itself wouldn't take more than an hour or two out of your day. Your attorney would likely want to have an in-person or telephonic chat with you in advance of the examination, though, to discuss the process, among other considerations.
- Arbitration – Depending on the type of case and where the case was filed, there is a chance that it will be necessary to submit to arbitration prior to any sort of actual trial occurring. As we've mentioned elsewhere, an arbitration is essentially an informal proceeding, similar to a trial, but rather than a judge or jury, the case is argued to an independent attorney and decided by that person. An arbitration proceeding is usually 4 to 6 hours and typically doesn't last more than one day, but it is possible that it might. Again, there will be a meeting in advance of the arbitration proceeding with your attorney, in person or on the phone, to discuss the proceeding itself and other considerations. Additionally, you may be asked to assist your attorney in contacting friends and family, among other things, in order to ensure all of the best evidence is presented.
- Mediation – Mediations don't happen in every case. In some cases, the parties involved may decide to submit to a mediation. This is an attempt to use a neutral mediator who will endeavor to assist the parties in potentially getting the case resolved short of further litigation. The mediator is an independent person, often a retired judge or attorney, who tries to assist each side in better understanding their opponent's positions. A mediation can take anywhere from a couple hours to an entire day or possibly more time thereafter for an actual resolution to take place. Your attorney would likely want to have an hour or so meeting with you in advance of the mediation simply to talk with you about the proceeding and other considerations.
- Trial – Not every case goes to trial. Most, in fact, do not. But it's always good to assume that there's a good chance your case will ultimately go to trial, if you're filing a lawsuit.
Trials can vary in length depending on the complexity of the case and the issues involved in a given case. Trials can be one day or they can be months. Most typically, personal injury trials are somewhere between one day and one week long (at least in the realm of car crash bodily injury claims). Much like with arbitration, there would be a meeting with your attorney prior to trial and some assistance expected on your part with ensuring that witnesses are willing and able to participate, among other things.
Well—all of this might seem like a massive time and effort investment just from reading through this entry. If you really take the time to add all of the time estimates from above up, though, most typically an injured claimant's time commitment throughout the litigation process doesn't amount to more than a couple of weeks of time. The litigation process itself, however, takes much longer (years, likely) to unfold and that can weigh on an injured claimant's mind and it can feel like the actual time invested is greater than it is in fact.
Again, though, the litigation process can be and often is absolutely necessary to achieve anything close to true justice in a situation where someone was injured by another person's negligence and left damaged yet insufficiently compensated.