WHAT IS INVOLVED IN A PERSONAL INJURY LAWSUIT?
First of all, it is important to know that 95% of the personal injury and wrongful death claims handled by the Schmidt Law Firm, Minneapolis Accident Attorney, are settled without going to trial.
Further, even over 90% those cases in which it is necessary to file suit settle before trial.
However, this informational sheet is intended to explain what the clients of the Schmidt Law Firm, Minneapolis Accident Lawyer, can expect if it is necessary to file suit.
1. DOES THE FACT THAT SUIT HAS BEEN COMMENCED MEAN THAT WE HAVE GIVEN UP ON SETTLING AND WILL HAVE TO GO THROUGH TRIAL?
Absolutely not. Our ultimate goal is to settle your case for a fair amount as quickly and efficiently as possible. We settle some of our cases without filing suit. Others simply can’t be settled for a fair amount because the insurance company is unwilling.
The fact that we have filed suit does not mean that we have given up on our efforts to settle. In fact, over 90% of our cases that are placed in suit actually settle without going through trial. Often, filing suit is the best way to get the case settled.
Under Minnesota law, mediation is mandatory in most personal injury cases. Mediation is a process by which the mediator attempts to bring the parties to a settlement. In those cases in which the insurance company is unwilling to offer a fair settlement before suit, the filing of the lawsuit will force the insurance company attend a mediation session. At mediation, the mediator requires both parties to sit down at the bargaining table and hopefully negotiate in good faith. For that reason, filing suit is the next step in attempting to settle your case. In fact, the large majority of our cases that are placed in suit settle at mediation. See more on mediation below.
2. WHAT IS INVOLVED IN PLACING A CASE “IN SUIT”?
The first step in the process is to draw up the legal papers, called a Summons and Complaint. Then, they are “served” on the opposing party (parties), either by a Deputy Sheriff or a Process Server.
The summons notifies the defendant (the individual who caused your accident) that he/she is being sued. It notifies the defendant of the fact that he or she must respond within a time limit. The Complaint details the grounds on which we base the suit and our claim for damages.
The defendant then turns the suit papers over to his/her insurance company of the suit. The insurance company then typically retains an attorney to represent the defendant.
The defendant, through his/her attorney, will respond to the complaint we have served with an Answer.
In most cases, the Answer must be served within 20 days.
3. HOW MUCH ARE WE SUING FOR?
Remarkably, under Minnesota law, it is illegal to name a specific amount that is being claimed where that amount is more than $50,000. For example, we cannot sue for $60,000 or $100,000, or any specific amount over $50,000. Instead, if we are asking for more than $50,000, we can only ask for “an amount in excess of $50,000.” This allows us to ask for any amount we wish for at trial.
4. WHAT HAPPENS NEXT?
The next step is called “Discovery”, in which both sides exchange information to learn more information about the opposing party’s case and to prepare the strongest possible case. Discovery consists of the following:
1. Interrogatories and Demands for Production:
Interrogatories are written questions which must be answered under oath within a certain time limit. We will forward these questions to you and ask that you answer them to the best of your ability. Certain information which will be requested will be in our files. We will assist you in answering the Interrogatories.
We will need your help to answer these interrogatory questions. We will send a copy of the questions to you and ask that you prepare the answers as best you can. Once you have done that, please send them to us and we will review and edit your answers into the final copy. We will again review them with you. Once we have a set of answers that is acceptable to both of us, we will then type your answers in final form and send them to you for your review and signature.
At the same time, we will serve (send) our own Interrogatories to the defendant to obtain his/her answers under oath.
There are additional documents that will most likely be served upon you. These documents would include a Demand for Production of Documents, by which a party can request that the opposing party provide copies of significant document, such as witness statements, photos, medical bills, etc.
After the Interrogatories have been answered, the defendant’s attorney will request that your deposition be taken. A deposition is an opportunity for the
defendant’s attorney to ask you very probing questions regarding the facts of the accident, your injuries, your wages, your employment and any other relevant information. This is done in the presence of a court reporter and
the questions and answers are recorded word-for-word and placed in written form.
Your attorney will be present throughout the process.
Prior to the deposition, we will send you instruction and training materials to help prepare you for your deposition. We will then meet with you to make certain that you are fully prepared for your deposition. We will also ask that you review the Answers to Interrogatories, your settlement brochure, and other important documents in your case so that your responses will be consistent.
The deposition itself will typically take from 2 to 4 hours.
We will have the opportunity to take the deposition of the defendant as well.
3. Medical Exam –Rule 35:
The defendant is allowed by Rule 35 of the Minnesota Rules of Civil Procedure to have you examined by a physician of their choice. The Rules of Court call this an Independent Medical Examination (IME) even though there is nothing “independent” about it. Instead, it is a process by which the Defense has the Plaintiff examined by a doctor who will testify in favor of the defense, and against your case, at trial. In most cases, this doctor is very conservative and will state that you are not injured, or that your injuries and disabilities were not caused by the accident upon which your case is based.
When the defense requests an IME, you have the right to resist. However, in almost 100% of the cases, the Court will order you to attend.
NOTE: During the discovery phase, you will be asked about your entire medical history-all the way back to childbirth. You will be asked about other totally unrelated medical conditions, about your criminal record, your entire employment history, and you will be required to produce your tax returns for prior years. You will be required to provide authorizations for all of your medical records, even before the accident that is the subject of your case and the defense will use those authorizations to get all of your records. You may be asked about those records at your deposition. If anything in your past causes you to have a problem with any such issue, you should discuss it with us immediately.
5. THE NEXT STEP TYPICALLY IS MEDIATION.
Mediation is a process by which the parties formally attempt to settle the case after suit has been filed. Mediation is required in most personal injury cases by the Rules of Court. The parties are usually able to agree on a person, typically a lawyer or a retired judge, to serve as mediator.
The parties meet with the mediator, after having first provided the mediator with information about the case. The mediator typically then meets with both parties, usually in separate rooms at the same location, and attempts to bring the parties together to a
mutually acceptable settlement. The mediator has no power to decide the case-and only can use his or her best powers of persuasion to get both parties to agree.
6. WHAT HAPPENS IF THE CASE DOESN’T SETTLE AT MEDIATION?
If the case doesn’t settle at mediation, the Court often will call the parties together for a pre-trial conference. At that time, the Judge will make one last effort to bring the parties to a settlement. If that attempt is unsuccessful, the Judge will set the case for trial
7. WHAT HAPPENS AT TRIAL?
When we certify a case for trial we are telling the court that your case is ready to be placed on the active court calendar for trial. Generally it takes anywhere from 4 to 12 months from the date we certify the case for trial before the jury trial is scheduled.
You will be given plenty of advanced notice of trial. Typically, the trial will take anywhere from 3-5 days to complete the trial. We can give you a more accurate estimate which is specific to your case.
It is important that you do not stop seeing your doctor. If you stop treating, the testimony of your physician will be “stale” in that your doctor will not have current information about your case when he or she testifies.
As the trial date approaches, we may utilize experts to help prove your case in addition to your treating doctor. Your treating doctor and any other experts will charge a fee for their time to prepare and testify. This fee will be a cost which will be taken out of your share of the proceeds upon settlement or judgment.
The trial will be held in a courtroom before a Judge and Jury. In Minnesota, juries are usually composed of 6-8 persons. The jury will listen to all evidence and make a determination.
We will have an opportunity to present evidence through your testimony, the testimony of neighbors, co-workers and friends. The expert testimony of your doctor and perhaps an employment expert may also be necessary, to prove your case. Please provide us with a list of the witnesses that you want us to call to testify at trial and do so well before the trial so that they can be placed on the witness list within the required time period.
It is important that you understand that for any claim we assert, such as lost wages or permanent disability, we must be able to support it with evidence and testimony. Simply making a claim without evidence from an expert or neutral witness is not effective documentation.
The defendant’s attorney will try to minimize our claims by utilizing the testimony of their doctor who examined you pursuant to Minnesota Rule 35.
8. WHAT ARE YOUR RESPONSIBILITIES FROM THIS POINT?
It is important for you to keep in touch with us and keep us informed as to any new developments in your situation. It is important that you continue to see and treat with your doctors. It would be wise for you to again read our “Dear Client-This is your case” letter.
We will be doing the large majority of the work related to the litigation, but will need your help with the following:
1. Answers to Interrogatories
2. Attendance at the deposition.
3. Attendance at the IME.
4. Attendance at the mediation session.
5. Attendance at trial (if necessary).
We understand that this is an unfamiliar situation for you. We want to assure you that we will continue to fight for you to obtain appropriate compensation for your injuries.