If you or a loved one has been seriously injured through another’s negligence, you may seek compensation through a lawsuit. There is a statute of limitations for filing many types of lawsuits. Usually, the statute of limitations is two years from the event causing the accident or death, but there are exceptions. Your lawyer will let you know the statute of limitations for your particular situation, and guide you through the lawsuit process.
Consult with an Attorney in Dallas, TX
If you or a loved one has been injured, you need to consult with an experienced personal injury attorney. The Bonneau Law Firm, located in Dallas, Texas, provides personal injury law services to the Dallas-Fort Worth Metroplex. At Bonneau Law Firm, we will review the circumstances of your situation and determine whether you have a case.
Establish Terms of Attorney Representation
An attorney does not represent you until both the client and lawyer sign an engagement agreement. If the attorney has any conflicts of interest – whether with former or current clients or personal issues – he will not be able to represent you. The agreement for the terms of attorney representation clearly explains the relationship between the attorney and client.
The terms of the representation include any fees, retainers and when payment is due. In cases involving contingency fees, the percentage of any award going to the attorney in is stated in the agreement. The agreement states that litigation and other expenses are deducted from the recovery, as well as whether these expenses are deducted prior to after calculation of the contingency fee. The agreement will state whether the fee differs depending on whether the case is settled, goes to trial or appealed.
Negotiations with Defendant and Insurance Company
Never sign any insurance forms following an accident before consulting an attorney. An insurance company wants to pay as little as possible for a claim, and if you do not have a lawyer, the odds of your receiving fair compensation are low. Your attorney will protect your legal rights and help you negotiate the claims process.
If the person or entity believed responsible for the injury – the defendant – carries liability insurance, as is the case with the majority of personal injury claims, negotiations begin with defendant’s insurance adjuster. The insurance company may offer a settlement, and your attorney will evaluate the offer. If it is insufficient and the insurance company won’t budge, a lawsuit may be necessary for you to receive just compensation.
Filing the Lawsuit
The person filing the lawsuit, or petition, is the plaintiff. The person or entity against which the suit is filed is the defendant or respondent. The petition is filed with the clerk of the court. After your filing, the defendant must receive legal notice that the suit has been filed against them. The clerk of the court will issue a citation, and a process server will present the citation to the defendant. The defendant will likely file a counter-claim, or answer, with the court. Should the defendant not respond, or later fail to appear at trial, the judge can order a default judgment.
The defendant’s insurance company’s attorney usually sends a “general denial” standard answer. This answer does not indicate the plaintiff’s allegations are false, but it does mean the plaintiff must provide proof of the allegations. The answer may also include specific defenses to claims. The next step in the lawsuit process is discovery.
Discovery is the process by which people get information from the other party in a lawsuit. Each side can ask the other to:
- Respond to written questions, known as interrogatories
- Allow the other party to read documents or other items – including property – controlled by the other side
- Undertake a physical or mental examination
- Proceed with an oral or written deposition.
Anyone sent discovery must answer within the time allotted by civil law or as per a court’s order.
Depositions, whether written or oral, are taken under oath. The witness answers questions, and these answers are recorded by a court reporter. Depositions can be used if the case goes to trial. The questions are often wide-ranging but relevant to the lawsuit. In personal injury cases, the witness is asked about the circumstances leading up to the accident or incident.
Mediation, or Alternative Dispute Resolution (ADR), is one way of resolving a case before going to trial. The goal of mediation is reaching a settlement or an agreement between the parties in the suit. The attorneys representing the plaintiff and the defendant are present during mediation, and the plaintiffs or defendants may choose to appear.
A third-party mediator works impartially and “facilitates communication between parties to promote reconciliation, settlement, or understanding among them,” according to the Texas ADR statute. These mediators are lawyers and some previously served as judges. The session starts with all parties in the same room, with each attorney presenting their case. The parties separate and go into different rooms, and the mediator speaks with each side privately.
Whether you have to stay in the same room with “the other side” depends on your feelings and your attorney’s advice. You do not have to speak unless you want to and your attorney believes it is in your interest. If you decide to speak, whatever you say is privileged information. It remains confidential and cannot be used against you in the lawsuit. The mediator may suggest ways of resolving a dispute but does not have the authority to decide an issue. The goal of mediation is to reach a settlement. The mediation session is not recorded, either by tape or stenographer.
While the goal of mediation is to reach a settlement, it does not always happen. The next step in a case that has not settled is going to trial, although the overwhelming majority of personal injury cases are settled. A settlement is possible at any time, including during a trial or even after a verdict is returned. Once a settlement is reached, the case is over.
If the case is not settled, it goes to trial. Civil cases may be tried with or without a jury. In civil cases, a written request for a jury trial must be filed with the clerk of the court within a specified time period. During jury selection – or voir dire – the lawyers for either side, as well as the judge, can question the potential jurors. Either side can dismiss potential jurors.
While a civil trial is similar to a criminal trial, the defendant is not accused of a crime, and there is no “guilty” or “not guilty” verdict. Each attorney gives an opening statement, focusing on what they intend to prove with the evidence presented. Since the burden of proof rests on the plaintiff, their evidence and witnesses go first. The plaintiff’s attorney can directly examine the witness, while the questions asked by the defendant’s attorney are called cross-examination.
Once the plaintiff’s attorney is finished presenting evidence, it becomes the defendant’s turn to put forward witnesses and evidence, with direct and cross-examination. Once all the evidence is presented, the jury receives questions along with instructions from the judge. The way questions are worded is crucial. A poorly worded question can end up causing a decision to become reversed on appeal.
Questions are answered either in the negative or the affirmative. A sample question in a personal injury case may be: “Do you find by a preponderance of the evidence that John Jones was driving his automobile in excess of the posted speed limit of 45 miles per hour?”
Juries then return a verdict, representing their findings on a case.