Car Accident Civil Court Suits

If you want to recover more than the small claims court limit, you will have to file your case in the “regular” civil court.

Actually, I don’t recommend that you file a case in the regular civil court. There’s too much that you don’t know. There are too many procedural traps for the unwary. In short, the risk is too great.

If you case is worth filing in court, it’s worth winning. Hire a lawyer if you’re going to any court other than small claims court.

Initiating Your Case

After the Clerk creates the Court file, she prepares “process,” the papers that have to be served on the person you are suing, the “defendant.” Process includes a copy of your Complaint and a Summons requiring the defendant to answer your case within a specific period of time, usually about a month.

This process must be delivered to the defendant. This is called “service of process.” Each state has its own rules and procedures for how process must be served. Generally, the safest thing to do is hire the local Sheriff or Constable to serve process on the defendant. There will be a small charge, but, if you win your case, the amount that you pay will also be added to the judgment that you receive.

After your Complaint is served on the defendant, the defendant must file a response, usually called an “Answer.” In this Answer, the defendant raises all legal defenses that he has.

Don’t be surprised if the Answer includes defenses that you think are ridiculous and bear no relationship to your case. Normally, defenses that are not included in the Answer are waived, so defense lawyers typically raise every defense that exists, even if they don’t seem to apply to the case.

Pretrial Procedures

After the Complaint and Answer have been filed, and the case is “at issue,” the two sides exchange information about their cases using procedures designed for this purpose. This is called pretrial discovery.

The pretrial discovery procedures can be used in any sequence, but, normally, discovery starts with each side sending Interrogatories to the other side.

Interrogatories are written questions which the receiving party has to answer under oath. I usually serve interrogatories on the defendant with initial process. That way, the defendant has to answer my questions before my client has to answer the defendant’s questions. Even though it won’t change your honest answers to the defendant’s interrogatories, there is an advantage to knowing what the defendant claims before you answer his interrogatories.

It is also normal for each party to send the other party a request for the production of documents. I usually have these served with initial process, too.

Depositions are a face-to-face question and answer session where the lawyer who scheduled the deposition questions the “deponent” under oath. Depositions are the most effective way to learn what someone knows about the case. Expect the defense lawyer to schedule your deposition. Your lawyer will probably depose the defendant, too, especially if the cause of the accident is disputed. There may also be other depositions, such as of witnesses who saw the accident or medical experts who treated you.

The defense will also probably schedule a Defense Medical Exam , or "DME." Actually, defense lawyers and insurance companies call these “independent medical examinations,” or “IMEs.” This is a misnomer since there is nothing independent about these examinations.

If there are medical issues in your case – including the nature and extent of your injuries and whether your injuries were caused by this accident – the defense can request a DME. You must submit to a medical examination by a medical expert who will almost always reach conclusions that help the side that hired them, the defense. Of course, before the jury, your lawyer will point out that there was nothing “independent” about this examination, that the defense expert was hired and paid by the defense and is contradicted by your health care providers who were responsible for actually treating you and making you better. If this is the case – and it usually is – your lawyer will also point out to the jury that the defense expert frequently testifies on behalf of defendants, but rarely on behalf of plaintiffs such as you.

This exchange of information is usually governed by an order from the court that establishes deadlines for completing various procedures, and there are serious penalties if you miss the deadlines. So be sure to always act promptly when your lawyer asks you to help with these pretrial procedures.

Settlement Possibilities

If you file your case in court, can you still reach a settlement?

Yes, you can.

However, once the case is filed in court, settlement possibilities are usually slim until you get close to the time that you will go to court. There are exceptions, but this is the way it usually works.

Sometimes, before trial, the court will ask you to try once more to settle your case by going to mediation or participating in some other type of Alternative Dispute Resolution, or ADR. Almost all courts have some system for ADR in car accident cases.

In addition to these formal procedures, your lawyer will probably be talking directly to the defense about settlement.

You want your lawyer to talk about settlement with the defense. You want your lawyer to get the best offer that she can, so that you have an alternative to the uncertainty that exists in every trial.

From the lawyer perspective, I don’t like talking about settlement within the last few weeks before a trial. During that time, I am focused on preparing for trial . . . preparing witnesses, planning how to cross-examine defense witnesses, crafting an Opening Statement and a Closing Argument, preparing arguments on legal issues that I expect to come up . . . and what seems like a thousand more things. That last thing I want to do is talk about a settlement that probably won’t happen. After all, if the case could be settled, it probably would have settled before this point. However, it’s my job so I do it. And, you know what? Sometimes it pays off in a good settlement. So, my advice is . . . encourage your lawyer keep the lines of communication with the defense open, even when she has other important things to do.

Trial

If ADR and direct discussions with the defense fail to produce a settlement, your case goes to trial.

Here’s what happens at a typical car accident trial. . .

When the case begins, the judge will deal with "preliminary matters" if there are any. These would include such things as last minute motions raising technical legal issues.

After preliminary matters are resolved, jury selection begins, if yours is a jury trial.

The potential jurors are brought into the courtroom and sworn in. The judge makes introductory comments, explaining what the case is about and the jury selection procedures that will be followed. You will probably be identified to the prospective jurors as will the defendant and the lawyers.

Then, the potential jurors are asked questions in what is called voir dire. In some states, the judge asks the questions, usually based on questions requested by the lawyers for each side. In other states, the lawyers get to question potential jurors directly.

If any jurors reveal that they cannot be fair, they are excused "for cause."

Using information learned through voir dire and the little bit of information provided about each potential juror, your lawyer can strike (excuse) a limited number of potential jurors for no reason or for any reason, and your lawyer does not have to say what the reasons are. He simply exercises a "peremptory challenge" and eliminates a juror.

In some states, there are 12 civil jurors, but others have fewer, such as 6. In addition, if your case will last more than 1 day, the judge will probably also seat 1 or more alternate jurors. The alternates will hear all of the evidence and will replace any jurors who cannot complete the case for any reason, such as illness. When jury deliberation begins at the end of the case, the unneeded alternates are excused. They do not participate in deciding the case.

Of course, if your trial is being heard by a judge instead of a jury -- this is sometimes called a "bench trial" -- you skip the jury selection process and go straight to the next step.

After the jury is selected, opening statements are made.

The lawyer for the plaintiff – your lawyer – speaks first, followed by the lawyer for the defendant. Or, the defense lawyer can elect to wait until after the plaintiff's case is over to make an opening statement. Most defense lawyers make an opening statement at the beginning of the trial.

Opening statements (not opening "arguments") are designed to tell the jurors what the lawyers think the evidence will be. They are often compared to road maps or tables of contents.

Next, the evidence is presented, beginning with your evidence.

Evidence consists of testimony given from the witness stand and exhibits introduced into evidence. This is the heart of the trial.

When a witness is called to testify, the lawyer who called the witness questions first. This is called direct examination. Then, the other lawyer can ask questions in what is called cross examination. After the second lawyer questions the witness, the first lawyer can ask questions about issues raised on cross examination in redirect examination. Then the second lawyer can ask more questions in a re-cross examination, and so on. Basically, the questioning continues in alternating fashion until the lawyers run out of questions. The judge is also allowed to ask questions. Some do and some don't.

Most exhibits are introduced through witnesses. The lawyer who wants the exhibit to go into evidence offers it into evidence. If the other lawyer opposes the exhibit being considered by the jury, that lawyer objects and the judge rules on the objection.

When your lawyer finishes calling all of the witnesses and introducing all of the exhibits that she wants, the plaintiff "rests."

Unless the judge rules that the plaintiff has not proven a case -- in which case the trial is over and you lose -- the defendant then can call witnesses and introduce exhibits. The same procedures are followed for the examination of witnesses and introduction of evidence as are followed when the plaintiff is presenting evidence.

After the defense finishes its case, the plaintiff can present "rebuttal evidence" to rebut (or contradict) the defense case.

After all of the evidence has been presented, the judge instructs the jurors on the law that applies to the case. The jurors are told to accept this law as it is given to them by the judge, decide the facts and reach conclusions about the case.

In most states, the closing arguments of the lawyers precede the judge's instructions on the law, but in some states, the instructions come before the closing arguments.

The first closing argument is made by the lawyer for the plaintiff. Then the defense lawyer makes a closing argument. Finally, the lawyer for the plaintiff gets the last word. The plaintiff's lawyer speaks first and last because it is the plaintiff that has to prove the case. If the plaintiff does not prove his case, the plaintiff loses. Therefore, the plaintiff's lawyer gets the advantage of arguing first and last.

After arguments are completed, if she has not already done so, the judge explains how deliberations are to be conducted and then the jurors retire to the jury deliberation room to make their decision which, in most states, must be unanimous.

Click here to go from this discussion of car accident civil court suits to a more general discussion of car accident lawsuits.