A lawsuit begins with the filing of the Complaint and the service of a copy of the Complaint with a summons, on the defendant. If the defendant has insurance, there will usually be a delay of approximately 30 days while the insurance company assigns defense counsel. Once the lawyers for all parties are known and the defendant answers the Complaint, the lawsuit begins moving.
Massachusetts has a “tracking” system, that sets rough time limits for the various stages of a lawsuit. The tracking system has helped shorten the time from filing of a lawsuit until trial, although to clients, the movement of their case often seems glacially slow. Before the tracking system went into effect, a wait of 5 years and more, before a case went to trial, was not unusual. Now, general personal injury cases are on the “F,” Fast track, meaning that a trial should be held within approximately 14 months of filing the case. Medical malpractice, products liability, and wrongful death cases are placed on the “A,” Average track. Trial on “A” track cases may not be scheduled for 3 years after filing.
Much pretrial preparation consists of paper exchanges by the lawyers. Each side may ask written interrogatories of the other side, seeking relevant information. While clients must review and sign answers to interrogatories, the answers will typically be drafted by the attorney based upon his preparation of the answers with the client. Both sides may also request documents that may be in possession of the other side and that are relevant to the case. Your lawyer may routinely send you copies of important documents that he sends or receives, so that you remain aware of the status of your case.
A client’s most important involvement in his own case before trial, will be when his deposition is taken by the defense lawyer. You will go to the defense lawyer’s office and answer questions that he poses to you. Your lawyer will have prepared you thoroughly for your deposition so that you are comfortable and answer only the questions asked. When all the paper discovery has been completed and all the depositions, taken, the case is ready for settlement or trial. Plaintiff’s lawyer will often send a written settlement demand to defense counsel and the insurance adjuster. The demand will marshal the evidence favorable to the plaintiff, explain theory of the case, and demand a specific sum of money. Cases often settle in a matter of weeks or months after the settlement demand is sent, through a process of back and forth discussion between the lawyers, or between plaintiff’s counsel and the insurance adjuster. Sometimes the parties agree to submit the case to a professional mediator, whose job it is to help the parties reach a settlement.
If the case cannot be settled, then it must go to trial. In almost all serious personal injury cases, one or both side’s lawyers will have demanded a trial by jury. After hearing the evidence and the judge’s instructions on the law, the jury renders its verdict, including, if the jury finds for the plaintiff, the amount to be awarded to the plaintiff. Although a losing party can appeal, there are no legitimate appellate issues in most personal injury cases and full appeals are relatively few. If the jury verdict is especially large, the trial judge can reduce the award, a procedure known as “remittitur,” and give the plaintiff the choice between accepting the remittitur or trying the case again. Fortunately, most jury verdicts stand, and the money is paid.
Anyone who brings a personal injury lawsuit should know in advance what to expect and needs to be patient with a system that is short on resources and slower than it should be. The good news for injured plaintiffs is that approximately 90% of personal injury cases settle before trial, meaning that the majority of plaintiffs represented by competent counsel will be fairly compensated for their injuries.