Going to Trial: What Happens?
Most injury cases settle at some point prior to going to trial, some before a lawyer becomes involved, some after all medical treatments are finished, some just prior to the filing of a suit, some shortly after suit is filed, some during a mediation session, some after arbitration, some at a pretrial meeting with the judge, and some on the courthouse steps. In my experience, substantially more than half of the cases my firm files are settled prior to trial. If you can’t settle your case, you will have to go through trial and have a judge or a jury decide whether you win and how much money you can collect.
How long does it take?
Some cases can proceed quickly through small claims court or a court with similarly limited damage amounts, like the District Courts of Maryland. Larger cases will require much more time, several legal proceedings, written and oral questioning of the parties, witnesses and experts, and, obviously, greater expense. Additionally, the parties and witnesses will have the inconvenience of attending court dates and the trial. Once a case is begun in the court, through the filing and serving of a Complaint on the defendant(s), the case can take anywhere from several months to more than a year before it goes to trial.
What happens before trial?
Prior to trial, the attorney for the defendant files an Answer to the plaintiff’s Complaint and usually sends a set of several dozen written questions – called “Interrogatories”– to the plaintiff. The plaintiff’s attorney will then send Interrogatories to the defendant and, after these are answered, the attorneys usually schedule “Depositions” – oral questions under oath – of the parties and witnesses, which are transcribed by a court reporter and sometimes videotaped. After this period of discovery of each side’s information, there often is a chance to talk about settlement under the court’s supervision, through mediation and/or a pretrial meeting with the judge. Most cases have pretrial bickering in the form of motions filed by either side. These are written challenges to the other side’s legal or factual framework, and often require extensive legal research and writing and often culminate in arguments in court to the judge. At the pretrial meeting, the judge, after trying to get the parties to settle, will move to preparing the case for trial by discussing the guidelines for the trial.
Trial begins with jury selection through a process called “voir dire,” when the judge or the lawyers ask questions to the potential jurors in an effort to obtain the best jury for their case. Most states now allow civil cases to be heard by a jury of six adults.
The lawyers then present opening statements that summarize what each side believes the evidence will show. The plaintiff’s attorney goes first at this stage and throughout the trial because the plaintiff has the burden of persuading the jury. Evidence is presented with each side cross-examining the witnesses called by the other side. At the end of the plaintiff’s evidence, the defendant usually makes a motion – which is normally denied – asking the judge to end the case right then on the theory that the plaintiff has not sufficiently proven his or her case.
At the end of the presentation of the evidence from both sides, the lawyers get to make closing arguments stating what each attorney believes the evidence was and how it should be interpreted. The plaintiff goes both first and last, again because of the burden of proof. Either just before the closing arguments or right after, the judge will instruct the jury about the law to be applied in the case. Often a discussion of the statements to be read is held outside the presence of the jury and often the battle over what instructions are given is a key to victory.
The jury will then go to the jury room to discuss the evidence and determine what verdict should be rendered. Because the jury – by design – did not know the parties or the case prior to being selected, and because the parties were unable to settle for a sum agreeable to both, at least one party to the lawsuit is always disappointed. Such is our trial system.
Sometimes when the losing party isn't happy with the verdict, there is an appeal. The appeal is heard by a different court, usually composed of at least three judges. Many people think that they can appeal because the verdict didn't go their way, but in fact appeals can only be successfully made if there was a ruling by the judge which was in error, and that the error caused the wrong verdict. Sometimes this error may be clear, but oftentimes that is not the case. Appeals can take up to a year or more before the appellate court even hears arguments on the case, and sometimes it can be months before a decision is rendered.
ADVICE FOR YOUR DEPOSITION
Depositions are like trial testimony, but usually with questions only from the opposing lawyer. Your attorney will accompany you to the deposition and may raise objections to certain questions. You will be sworn to tell the truth and then you will be asked questions while a court reporter transcribes the questions and your answers to prepare a document called a deposition transcript. Here is some advice to help you understand what to do at your deposition.
Prepare for your deposition
Think about the facts leading up to, during, and after the accident. Review in your mind what parts of your body were injured; think about the medical treatment you received and how it helped you.
Appearance is important. Dress as you would if you were going to court. Do not wear a t-shirt that you last used for mowing the yard.
Be yourself and be polite
Relax and be yourself. This can be hard, because you will be nervous. But try your best to be your best self. If you can present to the other side an accurate picture of who you are, you will be more effective than if you put on a “game face.”
A court reporter is transcribing everything that is said during the deposition so that it may be used later in court. It is a tough job. You can make it easier by talking loud enough and clearly so the court reporter can properly record your responses.
Always tell the truth
Never try to out-think the other attorney and give the answer that you think best helps the case. The best answer is always the truthful answer.
Think before you answer
Take your time and make certain that you understand the question. If you do not understand the question, ask the attorney to repeat the question until you understand it.
Keep your answers short
Answer the questions that are asked, and no more. You are not there to help the other side. No speeches or rambling responses, please. If a question can be answered with “yes” or “no” do so. It is the attorney's job to ask the right questions, or to follow-up on your answers.
Do not guess or exaggerate
If you do not know the answer, say you do not know. Do not guess, but an honest estimate is fine. Do not try to improve on the facts of your case or exaggerate your injuries.
Do not get angry
One of the reasons for taking your deposition is to see what type of witness you will be. If you lose your cool at your deposition, you will only hurt your case. Be as pleasant as possible.
Do not volunteer information
Answer all questions, but if there is no question pending there is no need to talk.
Treat all Persons in the Deposition Room with respect
Do not be afraid of the attorney asking you questions. It is helpful to look directly at the attorney asking you questions, and make eye contact. If you feel that the other attorney is taking advantage of you, avoid retaliating or showing this feeling. The people in the deposition are all doing their jobs.
Stop talking when there is an objection
If your attorney objects during the deposition, stop talking and wait for instructions. Your attorney may instruct you to go ahead and answer the question, but you should wait for instruction before responding.
You may ask to confer with your attorney at any time
If you would like to consult with your attorney or take a short break, let your attorney know or advise the opposing attorney of this fact. Generally, you don't want to do this too often during your deposition.
Some likely questions
The deposition is the time for the other side to learn about you and the facts of the case. It is unlikely that your attorney will ask you any questions. You should think about the following topics which are frequently asked at depositions involving automobile accidents:
Your address for the past ten years.
Your employers (including addresses) for the past ten years.
Your marital and family status.
The date, day of the week, time and place of the accident.
Where you were coming from and where you were going at the time of the accident.
The accident scene
A description of the site of the accident (for example: streets, directions, traffic signals, buildings, stairs, composition of the floor, lighting conditions). It may be helpful to visit the scene or sketch a diagram of the scene.
The timing, speed and distances involved in the accident. In an automobile case, a car travelling at 25 miles per hour would travel about 37 feet in one second; a car at 40mph would travel about 60 feet in one second.
The weather on the day of the accident.
The areas of damage to your car and the costs of repair.
The area of impact of your car and the other car.
The names of people who came to the scene, including police or emergency medical personnel.
Anything that was said at the scene by you or anyone else, especially the other driver.
your Injuries and treatment
The specific parts of your body which you hurt.
The dates you saw each doctor.
The names of each doctor who treated you.
Whether the doctor told you to stay off from work and if so until when
The amount of your medical bills
The date and reason for your discharge from each doctor.
Whether any part of your body had been injured prior to the accident or since the accident.
Your lost wages
Your lost wages, including your rate of pay and reason for missing time.