When you are involved in a legal dispute, and you’ve been unable to resolve matters without filing legal action, you want matters to be addressed as quickly as possible. Unfortunately, the legal process in the United States is just that…it’s a process. There are a number of steps you must complete before opening arguments can be made at trial. This series discusses the road map of a typical personal injury lawsuit, so that you know what to expect.
Initiating the Process
To commence legal action, you must file a complaint in a civil court with jurisdiction over the matter. There are specific rules regarding which courts have jurisdiction, typically tied to where the parties reside and where the injury occurred. Once a complaint is filed (by the plaintiff), a copy must delivered to (served upon) the defendant. Once the defendant has received a copy of the complaint, he or she must file an answer to the complaint within a specified period of time, usually 30 days. If the defendant fails to file a timely answer, the plaintiff can seek a default judgment.
The Discovery Phase
If an answer is filed in a timely manner, the court will customarily set up a first conference with attorneys for the parties. This is an opportunity for the judge to learn some of the basic assertions in the lawsuit, as well as an opportunity to determine the likelihood of a settlement. The court may also inquire whether the parties are willing to consider an alternative form of dispute resolution, such as mediation or arbitration.
The other purpose of the initial conference is typically to establish the rules and timetable for discovery. Discovery is a legal term that refers to the gathering of evidence. In the American civil justice system, the rule of open discovery prevails. This means that both sides are entitled to equal access to all evidence—a party cannot hide or refuse to produce relevant evidence.
Discovery is typically accomplished in three ways—through depositions, through the production of documents, and through interrogatories. Depositions are oral examinations of witnesses and parties that are transcribed by a court reporter. Interrogatories are written questions that must be answered in writing. In most instances, the court will set limits on the number of interrogatories each side can submit.
Typically, the court will identify a date by which all discovery must be completed. That date may be a few months or more than a year, depending on the complexity of the case.