If a claim does not settle, the only way to obtain a recovery is to file a lawsuit.  Not every lawsuit results in a trial.  In fact, most cases that are filed settle before trial.  However, the best way to obtain the maximum settlement is an aggressive approach to fully explore and prosecute all available avenues for recovery, and to prepare each case as if it is going to trial.

With this in mind, the following is a brief summary of the various steps in a lawsuit.

The Complaint

A lawsuit begins with the filing of a Complaint by the aggrieved party, known as the plaintiff.  The Complaint is a pleading which sets forth a brief statement of the facts, a listing of the asserted theories of recovery against the claimed wrongdoer (the defendant), and a prayer for relief.

Most personal injury lawsuits assert negligence claims.  The law of negligence covers a wide variety of types of cases and circumstances, from automobile accidents, to medical malpractice, to products liability, and more.

A Complaint in a negligence action usually asserts four elements:  duty, breach, proximate causation, and damages.  The duty owed in a case will depend on the facts of the case and the theories of liability asserted by the plaintiff.  For example, the duty owed by a driver in an automobile accident case is different than the duty owed by a retail store in a premises liability case, which is different than the duty owed by a doctor in a medical malpractice case.  A plaintiff may assert several theories of liability in one case.

A Complaint usually also asserts that the duty was breached, and that the breach of that duty caused the plaintiff to suffer damages.  The law recognizes several types of damages, including pain and suffering; medical expenses; lost wages; loss of future earning capacity; and disfigurement and embarrassment.

Venue

The location of the court where the lawsuit is filed is known as the venue.   In most personal injury actions, venue can be proper where the accident occurred, where the defendant resides, or where the defendant “conducts substantial business activity.”  There are numerous cases which interpret these statutes.

Why is venue important?  Because different venues have different reputations.  Some are viewed as liberal, some conservative, and some are unpredictable.  In order to obtain the maximum verdict or settlement, it is essential that a Complaint is filed in the most favorable venue.

A defendant may object to venue if a case is filed in a improper venue.  If this occurs, the court will hold a hearing to determine if venue is proper.

Answer, Demurrer, and other Responsive Pleadings

A defendant must file a pleading in response to the Complaint.  There are several defensive pleadings, but the most common is the Answer.  An Answer must admit, deny, or state that the defendant is without sufficient information to respond to the various allegations in the Complaint.

Additionally, the Answer must set forth affirmative defenses asserted by the defendant.  While a plaintiff bears the burden of proving the various elements of his or her case, the defendant bears the burden of proving his or her affirmative defenses.

There are several affirmative defenses, such as contributory negligence, assumption of the risk, failure to mitigate, and failure to file the lawsuit within the statute of limitations.

The most common affirmative defense in a negligence action is the defense of contributory negligence.  This defense asserts that the plaintiff failed to act as a reasonable person would have acted for his or her safety under the circumstances of the case.  If a jury finds the plaintiff contributorily negligent, then the plaintiff is barred from recovering.

A Demurrer is another type of responsive pleading which seeks to have the plaintiff’s Complaint dismissed.  A Demurrer tests the legal sufficiency of the Complaint and, in essence, contends that the Complaint fails to statute a legal claim upon which the relief requested can be granted.

Discovery

After the defendant has filed his response, the parties undergo a process called discovery.  As the name suggests, this is a process by which each side “discovers” facts from the other side, or from third parties.  In most Virginia courts, the discovery period lasts between 6 to 12 months.  In state court, a party may seek to discover any relevant fact which is reasonably calculated to lead to the discovery of admissible evidence.  This means that a party may learn information that is not admissible in court, but could lead to the discovery of admissible information.  The standard for discovery in federal court is similar.

It is usually during the discovery process that the strengths and weaknesses of each side are revealed.  Because of this, discovery is often a contentious process.  Parties may seek to block the other side from learning information.  Many times parties have to request court involvement to either protect disclosure of their information, or to order disclosure of the other side’s information.  Further, third parties (such as health care providers) may become involved which can complicate the process.

There are a number of different methods to conduct discovery.  The following is a summary of the most commonly used methods.

Interrogatories

Interrogatories are written questions sent from one party to the other.  The opposing party must answer the questions under oath.  Interrogatories are often used to discover background information on the opposing party, including information about their medical history, employment history, and personal background.  Interrogatories can also be used to learn facts the other party intends to rely on in support of their claims or defenses.  In state court, a party must provide answers within 21 days.  In federal court, a party must provide answers within 30 days.

Requests for Production

Requests for production require an opposing party to produce documents or things, or make them available for inspection.  Requests for production are often used to obtain medical records and accident reports.  However, they can also be used to compel inspection of products.  For example, if a plaintiff is injured by a defective ladder, he can compel inspection of the ladder or similar ladders.

Subpoenas Duces Tecum

Subpoenas duces tecum are requests for production that are directed to third parties.

Depositions

Depositions are the most powerful discovery tool.  A deposition is the sworn testimony of a party or witness in response to oral questions from counsel.  The parties usually gather in a conference room of one of the attorney’s offices in the presence of a court reporter.  The court reporter transcribes the testimony of the party or witness as if it were testimony in live court.  Although the setting is usually informal, the testimony given by a party or witness is sworn and is just as binding as if it were in court.  Sometimes depositions are video recorded.

There are many reasons why a party takes a deposition.  First and foremost, it is an opportunity to learn all the facts known by the witness.  Additionally, the lawyer can lock a party or witness into a version of events.  If the party or witness later contradicts their deposition testimony, this can be used against them at trial to impeach their credibility. 

Another key reason to take depositions is to simply get a feel for the party or witness.  Depositions are often the first time counsel has the opportunity to look at the opposing party face to face.  Counsel can gauge how the party or witness will come across to a jury based on how they appear at depositions and how they answer questions.  Will the witness be sympathetic to the jury?  Does the witness come across as an honest person?  Does the witness exaggerate or is he a “straight shooter?”  A significant factor in the value of a personal injury claim is the believability and jury appeal of the plaintiff.

A party may take the deposition of a company, known as a corporate designee deposition.  The party must identify the various areas to be examined prior to the deposition, and the company must appoint one or more people to attend the deposition and provide answers to questions regarding the various areas listed in the deposition notice.

Medical Examinations

In personal injury cases, a defendant may request that the plaintiff undergo a medical examination.  Typically these examinations are coordinated without court involvement.  The plaintiff’s and defendant’s counsel agree on a doctor, usually selected by the defendant’s counsel, to meet with and examine the plaintiff.  The doctor must then issue a report detailing his findings.

Motions

There are a variety of motions that can be filed in a civil lawsuit, and the time for filing them can vary from the beginning, to the middle, to the end of the case.  The most common motions include defense motions that seek to dismiss all or part of the plaintiff’s such as Demurrers, Pleas in Bar, and Motions for Summary Judgment

Another common motion is the Motion to Compel, which asserts that the opposing party or a third party has failed to appropriately respond to discovery requests.  Similarly, a Motion for a Protective Order asks the court to order that a party does not have to respond to a particular discovery request.

Alternative Dispute Resolution

Sometimes parties engage in Alternative Dispute Resolution (“ADR”) prior to trial, especially in significant cases.  ADR can take many forms, but the most common forms of ADR are mediation and arbitration.  In mediation, the parties retain a person (the mediator) to discuss the case together and individually with the parties.  The parties separate and the mediator acts as a “go between” and the parties make offers to settle the case back and forth.  The mediator is usually another lawyer or a retired judge.  The case will only settle if both parties agree on a final settlement figure.

In arbitration, the parties present their case to a third person (the arbitrator).  The arbitrator then makes a decision as to liability and damages.  Unlike mediation, arbitration is binding.  The parties must agree that whatever the arbitrator decides, they will accept.  However, parties often come to a “high-low” agreement prior to arbitration.  This means that regardless of the arbitrator’s decision, the parties have a side agreement as to the minimum and maximum amount that will be paid.  For example, the parties may come to a “high-low” agreement of $100,000 and $25,000 prior to arbitration.  If the arbitrator awards less than $25,000, then the plaintiff receives $25,000.  If the arbitrator awards more than $100,000, then the defendant only has to pay $100,000.  If the arbitrator awards an amount between $25,000 and $100,000, the defendant pays that amount.

Why do parties engage in ADR?  Because trials are risky and unpredictable.  A lawyer can provide his client with an estimate of what he believes will be the likely outcome of a jury.  However, this is just an estimate.  No lawyer can predict with absolute precision what a jury is going to do.  Sometimes juries return extremely low verdicts (or a defense verdict), and sometimes they return extremely high verdicts.  The purpose of ADR is to remove the risk of trial and resolve the case for an amount that each side can live with.

Trial

If the case does not settle, the parties proceed to trial.  A jury makes factual findings as to whether the defendant is liable to the plaintiff, and if so, how much in damages the defendant must pay to the plaintiff.  There are several steps in the trial process.  In general, the parties select a jury, give opening statements, present evidence, and give closing arguments to the jury. 

During the presentation of the evidence, the plaintiff must make a “prima facie” case, that is, prove the basic elements of the claim.  In a negligence action, this means the plaintiff must introduce evidence which establishes the duty of the defendant, shows that that duty was breached, that it was a proximate cause of the plaintiff’s damages and injuries, and the nature and extent of those damages and injuries.

After the plaintiff presents his case, the defendant can move to strike all or part of the plaintiff’s case.  The motion will be granted if the plaintiff has failed to establish the elements of his claims.  If the motion is denied, the defendant may present evidence in his defense.

After the parties have presented their evidence, the judge will read the instructions of law to the jury.  The jury instructions are simply statements of law which govern the case.  It is up to the jury to determine how the facts fit with the law.  The parties then make closing arguments to the jury, and the jury deliberates and returns a verdict.

Appeals

Either party may appeal a verdict.  In state court, however, appeals are rarely granted.  In federal court, an appeal is automatic if a party desires to appeal.