Not all claims are filed in court. The initial process is to assemble material, information, and evidence to evaluate your claim. Then, often an effort is made to resolve the claim short of litigation by negotiating with the party at fault or its representative, typically an insurance company. You as the client are involved in the process of gathering information and making decisions about assembling evidence to prove the claim as well as making decisions about the negotiation process based upon an effort to match your expectations with attainable goals. A frustrating part of the process can be the fact that we have no control over the evaluation and decision-making processes of “the other side.”
Your claim may be filed in court only with your authority and approval. The process starts with the filing of a Complaint for damages in which you are the plaintiff and the wrongdoer is the defendant. If a formal complaint is filed, the defendant files an Answer and the case is then set for trial, generally six to nine months later. The trial may be as short as three days, or as long as two weeks or more, depending on the complexity of the issues.
Once a Complaint is filed, and sometimes even before, there is a formal exchange of factual information between the parties, usually through written questions and answers. The defense is requested to answer questions and provide documents dealing with fault issues, and for its part, submits written questions to the plaintiff seeking information regarding both liability and damage issues.
Typically, the questions can feel intrusive, but you must provide as much information as possible to enable your attorney to answer fully and completely in formal responses. I will file the formal answers for you based upon the information you provide. While the process can feel burdensome, it is helpful in filling out the specifics of your case, compiling documents, finding witnesses and identifying other evidence to support it.
Following the written exchange of information, the attorneys may take formal statements – called depositions – from the parties and other witnesses. Discovering facts in this way is more expensive, since a court reporter must be paid for originals and copies of the transcripts. In addition, expert witnesses must be paid for their time.
Throughout this process the job of the attorney is to continue to prepare evidence to present and to re-evaluate the claims as more facts come in. As the trial date nears, you must decide whether to proceed or negotiate a compromise. Settlement discussions are always worthwhile, as they can lead to a known result as opposed to the unpredictable and delayed results of a trial. Resources for alternative dispute resolution are available to help the parties mediate, and may be mandated by the court.
Should you decide to proceed to trial, the process will focus in the weeks beforehand on the scheduling and payment of expert witnesses, preparation of exhibits and subpoenaing of other witnesses. It is during this time period that we work most closely in preparing the presentation, discussing expenses and updating our options. A good working relationship provides the best chance for successful resolution of your claim.
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