The Personal Injury Litigation Process in New York
If you've been involved in an accident in New York, your head is likely spinning. The idea of dealing with legal issues, lawsuits, and in fact, lawyers can seem very overwhelming. The laws are written in a way that make it difficult for individuals to navigate the system without a lawyer, and because of that, people are often intimidated into thinking that there's nothing they can do if something bad has happened to them. We're here to show you that this is not always the case, that there is a pattern that most cases follow, and if you're in the hands of the right attorney, you can find yourself in a position where you can succeed and recover for significant injuries.
Personal injury cases are complicated and you can feel overwhelmed very quickly. Your job as the victim of a personal injury is to get better and deal with the personal implications of a serious accident. Eventually, you'll decide that you want to contact a lawyer. Most people don't interact with lawyers on a day-to-day basis and for many people who contact our office this is the first time they've ever had to deal with a lawyer. Maybe they've dealt with a lawyer to draft a will, to handle a traffic ticket, or to help them with closing on their house, but that doesn't really translate to the world of serious personal injury lawsuits. So we'll show you what it looks like when somebody who's been injured in a car accident or another personal injury case calls our office.
The Hypothetical Plaintiff
Let's look at a hypothetical example. John is a car accident victim. He was driving down the street one day, passing through an intersection when his car was T-boned by a driver who ran a red light because he was texting while driving. Immediately on the impact John feels significant pain in his shoulder. He needs to be removed from the car by the arriving EMS. He's pulled from the car and again, his shoulder is really bothering him. He doesn't know what's wrong, but he knows he can't lift his arm. He's taken to the emergency room where he's treated and he's told to come back in a couple of days. The condition almost immediately gets worse and John finds himself in a position where he can't move his arm at all after a couple of days. It turns out that John had suffered serious injuries to his left shoulder which will ultimately require not one, not two, but three surgeries over the course of about a year. If John is lucky, he'll recover fully from the third surgery and be able to play sports, lift things overhead, go about his day‑to‑day life, play with his kids. If things don't work out so well, he'll be limited in all of those things, sometimes permanently. So John does what, hopefully, most people in his situation would do and he calls a lawyer. Now, John's initial contact with Darazio Peterson would look something like this.
John would either contact us through our web site or through our phones. He calls our office at 518‑308‑8339. He would get on the line with our paralegal who would talk with him and ask him some questions about what happened. Because we see a lot of these type of claims and a lot of people in John's position, our office staff is trained to know the types of questions to ask and the types of things to look for in terms of seeing if John's situation is one that we can help. John will be asked about relevant witnesses, medical treatment, economic loss, those sorts of things, and then he'll be sent an online questionnaire to fill out, so that we can be sure we have everything, we haven't missed anything.
Now, our firm only accepts cases for which we believe we are the right fit for the client and that we believe we can actually help, but that doesn't mean we don't look at every case. We personally review every single case that comes into our office, no matter how big or how small. In fact, there's no such thing as a case that's too big or too small. Our evaluation criteria are based on a number of factors, which include whether or not we think the client is a good fit for the firm, whether we're a good fit for the client, and whether we can help. So we really encourage you to go ahead and contact us if you have questions. Don't think that your case is too small for our office, because help anyone that we can under the right circumstances. Now, if we think after gathering all of the relevant information from John that we can help, we'll send John a retainer, he'll sign it, and he'll become a client of the firm.
Pre-Suit process and settlement demand letter
The next step in the process is what's known as the pre-suit process. Now, this is a period of time during which John will continue to recover, will continue to try to get better, get medical treatment, and during that time we'll be doing some work behind the scenes. We'll go about gathering all of the relevant medical records, we'll contact any necessary witnesses, and we'll make an assessment of liability and damages. Once it looks like John is either reached a point of a full recovery or is at a point where long-term treatment seems like it will be necessary, we'll sit down and put together our internal evaluation of John's potential claim. We'll look at the liability, in other words, who was at fault for the accident, as well as the damages, as far as we know them at that point. We'll then prepare an assessment for John, talking about our evaluation of the case, our evaluation of similar cases, and what we think a reasonable demand would be to make to the insurance carrier at this point. This is known as the demand letter, and once we've had an opportunity to talk with John about our thoughts, we'll put together a letter to the insurance company that outlines why we think their insured was wrong, what John's damages are as a result of the failures or the negligence on the part of their insured, and we'll make a demand for money to settle the case.
In response to our demand for money, the insurance company will do one of two things. They'll either negotiate, in other words, they'll come back with an offer in response to our demand or they'll take a position that they do not believe there's any liability or fault on the part of their insured. If they make an initial offer, then there's a chance that the case can get resolved before a lawsuit. Generally speaking, this takes some back and forth negotiations and can take anywhere from a few days to a few months, but often cases get resolved at this point. The insurance company also may take the position, though, that there's no fault, in which case we don't belabor the issue. We simply go ahead and prepare the case for filing of a lawsuit.
Filing the Lawsuit
In New York a personal injury lawsuit is generally filed in the county where one of the parties resides. We'll talk with John and make an assessment as to what the appropriate county is based upon the relevant factors and circumstances. The case is filed in the Supreme Court, which in New York State is not the highest court, but is actually the mid‑level trial court that is responsible for considering cases involving, among other things, personal injury lawsuits. We'll prepare what's known as the complaint or the initial document that commences a lawsuit and review the allegations with John. Once we are all on board and have approved of the allegations in the complaint, we'll go ahead and file the complaint at the clerk's office, and once we've done that, we'll get it served on the defendants. Now, in response to the complaint, the defendants will generally do one of two things. They can make a motion to dismiss the case, which is an application with the court to have the case dismissed based upon the law, or they can do what they more commonly do, which is file an answer to the complaint. The answer is simply a denial of the allegations and allows the case to move forward into what's known as the discovery process.
The discovery process is the real sort of meat of the lawsuit. It's a period of time during which the parties get to learn about the allegations in the complaint and the defenses to the complaint by the defendant. It's broken down into a couple of different parts and the initial part is the exchange of documents relating to the lawsuit itself.
There are a few different categories with documents that are exchanged and those include medical records, discovery document demands and responses where the parties will ask for copies of investigation reports, photographs, driving histories, other things that might relate in any way to the lawsuit and depositions.
Depositions are the opportunity for each side to a lawsuit to sit down and ask questions under oath of the other side about the lawsuit, the claims, the injuries, and the defenses. Depositions play a critical role in the legal process and are really the first opportunity for each side to learn firsthand about the facts of the case from the other side's perspective. We take depositions very seriously at D'Orazio Peterson because we think that a good deposition has the opportunity to make a case and a bad deposition can significantly hurt a case in the long run. So we prepare all of our clients extensively before any deposition.
Expert Witnesses. After depositions the parties will exchange their disclosure of expert witnesses. Now in a personal injury case expert witnesses can be medical doctors, they can be accident reconstruction specialists, they can be vocational rehabilitation specialists, they can be economists. There are a number of different categories of experts that can help prove or support a plaintiff's claim for damages in a personal injury lawsuit. In New York State parties don't ordinarily take depositions of experts instead they just exchange paperwork which identifies the expert and what they expect the expert will say if and when the case goes to trial.
How Long? The discovery process ordinarily can take anywhere from 3 to 9 and sometimes even 12 months to complete. Nowadays the Supreme Courts in New York State adhere to fairly tight timelines for the discovery process and that allows the parties to move cases through the process relatively quickly.
Once discovery is complete and experts have been exchanged you enter into the post-discovery phase of the lawsuit. This is a phase where the defendant will typically do one of two things either they'll file what is known as a motion for summary judgment which is asking the court to dismiss the case based upon all of the proof or there will be an opportunity to enter into settlement discussions.
Settlement discussions at the post-discovery phase often include attendance at mediation but can also include a simple back and forth between the attorneys to the case. If the defendant does not make an offer at this point the case will get scheduled for trial. Now the trial preparation starts long before the actual trial itself and includes extensive preparation by the attorneys including strategy development and identification of witnesses, documents, and other information that's going to be helpful or relevant at the time of trial.
As for the trial itself, it takes place in the Supreme Court of the county where the case has been sued and looks quite a bit like the trials that you see on television. The attorneys appear along with their clients and the judge and the first phase of the trial is jury selection. During this time, ordinarily the attorneys ask questions of perspective jurors to determine whether there are any reasons why certain individuals would not be able to serve on the jury and to make an assessment of those jurors that the attorneys think could be helpful or harmful to the case.
Once the jury has been selected the parties will move on to opening statements. This is an opportunity for the attorneys to tell their side of the story and to lay out what they think the proof will show during the course of the trial. Opening statements are critical in laying out the roadmap for what the case is going to look like in the jury's eyes and it's important to always remember that the jury knowns nothing about this case or the individuals involved so it's critical that the attorneys during their opening statements lay out the story about what happened and why it is that they're going to ask the jury to find for their client at the end.
After opening statements the New York personal injury trial will proceed through presentation of evidence, and this is typically accomplished through witness testimony, introduction of documents and photographs, and occasionally through expert witness testimony about injuries and other types of damages or liability components of the case.
After all of the witnesses have been presented and all of the proof is in the parties will proceed to closing arguments (also known as summation). We believe that the closing argument is one of the most critical components to the plaintiff's New York personal injury lawsuit. The plaintiff's attorney has the opportunity to go last and get the final word with the jury before they go in and deliberate about the case. The closing argument is the opportunity for the plaintiff's attorney to sum up what they have shown the jury about the lawsuit and most importantly to bring home one more time the reality about what has happened to this plaintiff and how the negligence of the defendant has and will continue to impact this plaintiff for a long time to come. It's critical to get across to the jury the fact that even though at the end of the trial they'll go home and go about their lives this incident will live on with the plaintiff in some cases for the rest of his or her life.
Once the closing statements have been completed the jury will deliberate. Jury deliberations can last anywhere from 45 minutes to several days and when they're completed the jury will come back with a verdict. They'll read off the verdict from a verdict sheet and they'll either find in favor of the plaintiff in which case they'll assess an amount of damages or they'll find in favor of the defendant in which case the lawsuit will be dismissed.
How long? Generally, New York personal injury trials last from about a week to sometimes several weeks, depending upon the complexity of the case, number of witnesses, etc.
During the post-trial period, if the plaintiff has received a verdict from the jury often the case will then settle for the amount of the jury verdict. At that point, the insurance company will likely pay the amount of the verdict in order to avoid a judgment against their insured.
Sometimes if the insurance company or the defendant strongly disagrees with the verdict they will preserve their right to appeal, in which case there may not be a settlement immediately after the verdict is handed down. If they do appeal the plaintiff will still go about obtaining a judgment based upon the verdict and will attempt to enforce that judgment or collect on it. The appeals process can take several months but the good news is that there's no additional proof presented during the appeal. Instead the court considers the issues that were presented to the trial judge and makes a determination as to whether the trial judge was right on the law based upon the information that the judge had at the time of the trial.