Step 2 - Filing the Lawsuit (State Court)
As stated above, if reasonable compensation is not offered, we will usually proceed with filing a lawsuit. In some circumstances, we will file the lawsuit immediately and without negotiating with the adjuster. This decision is determined on a case by case basis.
The Complaint - the complaint is the document we draft which sets forth our clients' claims against the defendant(s). It is usually filed at the clerk's office in the courthouse of the county were the injury occurred. The cost of the complaint is usually around $200.00-$250.00, and this is where the expenses of litigation begin to mount. Once the complaint is filed, it must be personally served upon the defendant(s) by the sheriff, special process server, or certified mail. The defendant(s) must actually receive a copy of the complaint in their hands. Once the defendant(s) is served, he has thirty (30) days in most circumstances to file an answer at the same courthouse.
Discovery - in addition to the complaint, we usually serve the defendant(s) with discovery papers entitled Interrogatories, Request for Production, and sometimes, Request for Admissions. These documents are questions about the case and requests for the defendant(s) to produce documents related to the case. The defendant(s) have forty-five (45) days from the date of service in which to answer said discovery (thirty (30) days if they are served after they have filed their answer). If the defendant(s) do not answer, we must try to work out a reasonable time frame for them to answer, and if they still do not answer, we must file a motion to compel them to answer with the court, obtain a hearing date in front of the judge, and wait for a specific time for the judge to order them to answer.
Once both sides have answered the other party's written discovery (interrogatories and request for production), the defendant(s) usually take our client's deposition. A deposition involves the other attorney asking our client questions before a court reporter and with one of our attorneys present. We usually meet with our client to answer the written discovery and to prepare our client for the deposition. While we cannot tell our clients what to say, we can tell them what to expect.
Depositions may also be taken of the defendant(s), corporate representatives, witnesses, doctors, and any experts designated in the case. Depositions are expensive due to the costs of the experts and doctors as well as the court reporters. A doctor usually charges between $500.00 and $1,000.00 per hour for a deposition, and the court reporter may add another $300.00 to $500.00 for the transcript. You can see how a few depositions can increase the cost of the case.
At some point in time, most, but not all, of the judges will set a scheduling order which will set forth the time for each side to complete the discovery process. The average time between filing the lawsuit and the actual trial is approximately one to one and one-half years.
Once the discovery has been completed, and sometimes sooner, mediation may be attempted between the parties. In fact, some judges now order the parties to mediate the case. Mediation is the process by which all parties come together before a neutral third party in order to try and settle the case. This process can be very productive if all parties come together with a good faith intention to settle the case. However, if the case cannot be settled at this juncture, the trial is the next step.
