Bagen Law Firm | February 17, 2023 | Personal Injury
Some personal injury cases resolve directly with the insurance company, while others require a lawyer to file a personal injury lawsuit in civil court. Once this happens, the litigation follows a strict procedural path, and one of the most critical stages of litigation is discovery.
In the discovery process, each side gathers facts from the other. You can ask written questions and obtain documents from the other side. Another valuable form of fact discovery is a deposition. Instead of asking for information in the form of letters and written inquiries, each side gets the opportunity to question the other’s witnesses under oath.
A deposition is one of the milestones of a personal injury case. Many people approach the deposition with fear because it will be the first time they are face-to-face with the defense attorney. You have never seen this part of the litigation process, and the legal setting can intimidate people without personal injury lawyers.
The Deposition Itself Is a Large Part of Your Personal Injury Lawsuit
Depositions can be grueling exercises. You may be answering questions under oath for up to seven hours. Although you may get breaks, depositions can be very tiring. In the meantime, everything you say is important because it sets the stage for your potential testimony at trial.
The opposing counsel will question you, and they may want to lock your testimony down for trial because you cannot say anything inconsistent with your deposition testimony at trial. You will have an attorney present to defend you in case the other lawyer asks improper questions. Your attorney will ask you questions once the opposing counsel has completed their questioning.
Depositions usually occur at the tail end of the discovery process. Witnesses have been deposed based on the information that attorneys gathered in discovery.
Previously, each of the attorneys may have:
- Requested documents that are in possession of the other party
- Sent requests for admissions to the other side
- Sent interrogatories or written questions about potential facts that get answered in writing
In a deposition, you may be presented with documents and asked questions based on what the attorneys have already learned. Just like you may have undergone a deposition, your attorney can also depose potential witnesses for the defense, seeking to gain more evidence and knowledge for your case.
Your Attorney and the Insurance Company Now Know the Strength of Your Case
You and your attorney may review the transcript of the depositions to make any corrections that you feel are necessary. Then, your attorney will review all the deposition transcripts to review your overall case and where to go next.
Depositions can make or break your case. If you come out of discovery in a strong position, you have many more options in litigation. You will not be as pressed to reach a settlement agreement, knowing that you may be well-positioned for trial.
Both Parties May File Motions That Can End Your Case Without a Trial
Two significant things can happen in a case after discovery. The first is that each party can file a motion for summary judgment in the case. When a case goes to trial, the jury gets asked to learn and decide the facts in the case. Each attorney puts on their evidence and witnesses to persuade the jury of specific facts. Depending on what happened during discovery, this trial process may not even be necessary.
If there are no facts in dispute, there is no need for the jury to hear evidence or decide anything. That whole part of the case will be unnecessary. Therefore, both parties will often file a motion that asks the judge to rule in their favor at the close of discovery.
They will take the evidence they have gathered in discovery and use it to frame the issues. The motion will find what each side believes is an undisputed fact and lay it out for the judge. Then, each party will state the law and argue why it supports a ruling in their favor.
The Judge Can Rule on the Case if Nobody Disputes the Facts
At that point, the judge will consider each side’s version of the facts and the evidence obtained in discovery. The judge will decide whether a reasonable fact-finder can believe that there are material facts in dispute. The word “material” shows that not every dispute will be enough for the judge to deny the motion for summary judgment. For example, if one party said that another car in the area was red, while the other said it was blue, that will not be enough to bear on the facts of the accident that are relevant to the dispute.
If the judge decides that there are no material facts in dispute, they may proceed directly to consider whether the law requires a particular verdict. The judge can grant a partial or complete motion for summary judgment to either side. In some cases, the judge may grant the motion on some counts but leave others for trial. While motions for summary judgment are rare, they do get granted occasionally.
If your case is strong enough that the judge rules in your favor, chances are that the defense will have settled the case already. The insurance company is a rational business and knows its risks. Still, the insurance company may sometimes completely misread the strength or weaknesses of its own case.
The Defense’s Settlement Posture Depends on How They View Their Case
The motion for summary judgment attempts to remove the need for some or all of the trial. The defense may not try to settle the case if they think there is a chance that the judge will grant the motion based on what happened at discovery. The motion for summary judgment is often an essential weapon for the defense if they think you have failed to obtain the evidence necessary to prove your case.
Therefore, you should have a skilled and tough attorney during the discovery phase. The more information you can gather, the more leverage you may have in the case. Remember that a personal injury case is not as much about what happened as what you can prove happened.
After depositions, discovery may close completely unless one or both parties can persuade the judge that they learned more information in depositions that require more discovery.
Discovery may give each side a good indication of the strengths and weaknesses of its case. As the plaintiff, you will know what facts you have to prove your version of events at trial. The defense will also know what you have in your hands that may win the case.
The Parties Get More Serious About Settling After Discovery Closes
With that in mind, settlement negotiations may start in earnest after discovery. You will usually have several months, at least, between the close of discovery and the beginning of the trial to prepare. During this time, the two parties may begin to make more progress in their negotiations.
Even if some personal injury cases make it through the discovery phase, it is still rare that they will go to a jury trial. Each party has too much at risk, and a settlement often meets the needs of both parties. The plaintiff can be assured of receiving money, and they remove the risk of getting nothing from a jury. The defendant removes their own risk of facing a jury that can strongly react to their actions.
Any Prior Settlement Negotiations May Gain More Steam
The plaintiff and defendant may have already had some settlement discussions before and during discovery. However, they may have been less motivated to settle the case. The defendant can often afford to take a wait-and-see attitude to see how discovery goes for them. Things take on greater urgency after discovery. For example, the defendant or some witnesses may have had a rough deposition where their credibility came into question. Once the defendant testifies under oath at a deposition, they must give consistent testimony at trial.
You can expect to begin to get more competitive and reasonable settlement offers after depositions that come closer to what you legally deserve in damages. At the same time, your attorney may advise you to lower your offer as negotiations pick up steam. Eventually, you may get to the point where you reach a settlement agreement without the need for a trial. In many cases, the two parties will reach an agreement on the eve of the trial.
You Should Still Prepare for Trial Even During Settlement Negotiations
Your attorney will still prepare for trial right up to the minute when you learn that it will no longer be necessary. They will take the information they learned at discovery and formulate how they will handle the trial. Your lawyer may also learn of potential weaknesses in your case and will consider how to address them in front of the jury.
You cannot count on a settlement, so you must continue to persuade a jury of the merits of your case.
What Happens in a Personal Injury Trial
If there is no settlement agreement, your case will go to a full hearing in court. Roughly 4 to 6 percent of personal injury cases will result in a trial – they are that rare. If your case goes to trial, each side will receive a certain amount of time to present its case to the jury.
Your attorney will call witnesses to get your own evidence in front of the jury. You will have the burden of proof to show that your facts are true by a preponderance of the evidence. Usually, your attorney will call both factual and expert witnesses to help make your case. The defense will get the chance to cross-examine your witnesses.
Then, the defense will have its own (usually equal) amount of time to present its case, calling its own factual and expert witnesses. Similarly, your attorney will have the opportunity to cross-examine the witnesses.
The Jury Will Finally Issue a Verdict in Your Case
Once each side has presented its case, the jury will deliberate and reach a verdict. If they rule in your favor, it may still not be the end of the case. The judge might consider the damages verdict on their own and potentially reduce it if they believed it was too high. The defense may also appeal the verdict to a higher court.
It is not unheard of for the two parties to settle either right before the jury reaches a verdict or even afterward. You may not want to take the risk that an appeal might sharply reduce or throw out the verdict. This is something your personal injury lawyer will consider and weigh the possibilities with you.
Hiring an Attorney Put You in the Most Favorable Legal Position
Once you have reached the end of your deposition, it is close to the end of the long slog known as discovery. You are probably nearly ready for trial, but there is still an insignificant chance that you will need to head into the courtroom.
When you hire a personal injury lawyer, they will know what tactics to use to put you in the best legal position. How your attorney performs in discovery and depositions can dictate the tone of the proceedings afterward, especially when they can obtain valuable information from the defense.
This time is precisely when you will need an experienced personal injury attorney who knows the right tactics to use. While aggressiveness may serve you well in some circumstances, your attorney must also have enough pragmatism to know when to settle the case if the right opportunity presents itself. There are times when you may need to go to trial, but most cases should result in a settlement agreement.
The key is to have the right legal help from the start. Seek a free consultation with a personal injury lawyer today.