This question, or phrased differently with the same idea, is one we regularly hear from our clients who have been in a car or motorcycle accident. The thought goes, “I’ve been injured and I’m not at fault, why can’t a judge hear my case?” And we get it. If the negligence of another caused injury to you in a car or bike crash, you just want to get back to your life. You’ve already, or are still dealing with, the injury and pain suffering, injury and pain suffering, missed time from work, and your car or bike were damaged.
Even though roughly 95% of cases end in a pre-trial settlement, there are several different phases of a lawsuit that have to happen first. Unfortunately, these all take time.
How does an injury lawsuit work?
The first step for your car accident attorney will be to meet with you to figure out if you have a claim. This initial meeting is usually free and allows you to figure out if you want to hire this particular lawyer for your accident.
From there, your attorney will evaluate the facts of your car wreck, gather facts and evidence, and try to settle the case for you. In most cases, it will take more than one round of offers sent back and forth. The first offer is almost always the worst. An important step to note here is that before any settlement demand is made, you’ll need to have be at maximum recovery or as much as you can from the accident. This is because your car accident lawyer will need to know the full extent of your injuries to properly calculate your damages.
If no settlement can be reached, a lawsuit will be filed seeking compensation for your medical bills, missed time from your job, pain and suffering, and property damage, among others.
Once a lawsuit is filed, there are several procedural steps that have to happen before a judge or can hear the merits of your case. In attempting to settle your accident claim before a lawsuit, your car accident will be dealing directly with an insurance adjuster from the at-fault party’s insurance. After filing, the insurance company will hire their own defense lawyers to come into the case.
Both parties will begin to conduct what is called discovery. This is basically a more in-depth investigation of your case by both sides. Written discovery consists of written questions (interrogatories), requests for documents, and requests for admissions (admitting or denying facts). Oral discovery is conducted through a deposition. A deposition is an in-person “interview” under oath where the opposing attorney will ask you questions about your case.
Unless the parties are relatively close to settling the case, the defense side will want to go through discovery to see if they can build a defense. This will take time. Just like insurance adjusters use tricks like delay, recorded statements , and a false sense of security, defense attorneys will use their own tricks to try to delay the case.
So why can’t we tell the judge about my case during this time?
Our legal system operates under what is called “due process.” This means that every party has the right to be heard. Discovery is the process of allowing both sides to conduct an investigation so that their voice may be “heard” properly. The time to hear each side is at trial.
This means that the defense (and your car accident attorney) are given the opportunity to collect evidence, interview witnesses, hire doctors and other experts to evaluate your case to ultimately build your argument. The court will allow a reasonable time for this to happen. If the other side delays too long or tries to prevent something from happening, your attorney may file motions to request orders from the judge for certain things.
A motion is a request made to a judge for an order. Typically, during a lawsuit it will be to demand that the other side do something or stop from doing something. Because this is in the middle of the lawsuit, the motion will only relate to what order your attorney is asking for.
For example, let’s say the defense doesn’t want a certain witness to testify because they have damaging information to their side. They may try to prevent this witness from being deposed by making it difficult on your accident attorney to set a date. The court doesn’t like to get involved in battles between attorneys for things like dates, so there has to be a reasonable effort by your attorney to accommodate the other side’s schedule. After a certain point, if nothing is accomplished, your attorney will file a motion to the court requesting an order that compels this witness to show up to a deposition. This alone can take several months and a lot of back and forth between the sides because of how critical it is to the case.
A judge will not hear your “case” at that time because discovery (i.e., the parties’ investigation of the case) is still going on. To sum up my long-winded (!) explanation, both sides need to be given an equal opportunity to gather evidence to present their best case at trial. During the time above in our example, as long as discovery is ongoing the sides are still building their case and a judge will not decide on the final outcome (discovery “closes” 30 days before trial).
There are many different variables that can come into play throughout a lawsuit. The above is a generalization of how a case can go and why a judge won’t immediately hear both sides of a case.
If you have questions about an auto accident claim, we offer a free consultation to help answer questions and determine your options. Our phone number is (916) 619-5452, we have a form on our website, or you can email us at info@hanecaklaw.com.
