In the companion blog, “Personal Injury: How Can I Succeed in a Personal Injury case?” we’ve already discussed the elements that a plaintiff, whether pre-suit or after filing a lawsuit, will have to establish in order to be successful in a personal injury claim under Indiana law. In that blog post, specifically, we discussed the legal elements that need to be shown: a duty, a breach of that duty, a causal relationship between the breach and the damages suffered, and damages. However, from a practical standpoint, one may wonder what happens, or what the process is, when they wish to seek recovery for an injury that he or she has incurred. This blog generally discusses that process.
Pre-Suit: Before a lawsuit is filed, an individual who sustains a personal injury may have a couple of avenues through which to seek recovery. If the injury was the result of an automobile accident, most individuals who have insurance typically have what is called medical payments coverage. Typically, this is coverage that provides payment for reasonable and necessary medical treatment arising from an automobile accident. The typical pattern is for the injured party to submit bills to their automobile insurer or put the health care provider on notice of their automobile insurance when treatment is sought. During this time, the injured party may be contacted by the insurer of the driver who caused the accident, or in a premises liability case, the insurer of the property where the accident occurred. The insurer may ask for information such as medical bills or an authorization that allows them to obtain your medical records so that it can evaluate the injury. That insurer then may make an offer of a monetary settlement to try to resolve the matter. If you accept, they ask that a release be signed. This release typically provides that you accept that you have been compensated fully and that you cannot bring a subsequent lawsuit against their insured for the accident/incident.1
Filing of a Lawsuit: If a claim is not resolved, then the injured party may choose to file a lawsuit. To initiate the process, the injured party files what’s called a complaint and pays a filing fee. Typically, this must be done within two years after the incident which gave rise to the injury; otherwise, the claim will be barred because it was filed outside of the limitations period for personal injury matters in Indiana.2 The complaint involves outlining the basic facts and legal basis for your claim. In addition to filing the complaint, the defendant or defendants in the case must be served with process (e.g. a summons). Sometimes, this is difficult to do. Despite how much information is gathered with the technology of today, some people are hard to find, and effectuating service can be difficult. After service is effectuated, the defendant(s) has/have around twenty (20) days to file their answer, which is a pleading that admits or denies the allegations in the complaint and may state certain defenses that the defendant(s) may raise in the lawsuit.
Post-Filing: After the complaint and answer are filed, it’s helpful to think of what happens next in three (3) separate phases.3 These phases are the discovery, pre-trial, and trial.
Discovery: The discovery phase is vital to success in litigation, and it can be thought of as the information gathering phase. It is during this phase that a plaintiff and their attorney accumulate the information that they will need to prove the elements identified in our Personal Injury: How Can I Succeed in a Personal Injury Case? blog post and to present the best possible position whether in settlement negotiations or before a jury at trial.
Information during this phase can be gathered in many ways. The most common are:
(1) Interrogatories – written questions that a party answers under oath.
(2) Requests for Production – written requests for a party (or a non-party) to produce records and information. Specifically, in a personal injury case, defendants will likely request records and bills from your medial providers who treated you both before and after the incident giving rise to your injury.
(3) Depositions – in-person questions that are posed by attorneys to a party, witness, treating physician, or expert in a case. Depositions are conducted under oath just like if the deponent was testifying in court. Conducting effective depositions is essential in preparing for trial to ensure that all necessary information is obtained and to prevent unwanted surprise testimony at trial.
(4) Experts – either a plaintiff or a defendant may retain an expert in a personal injury case. Sometimes the expert may be an engineer or accident reconstructionist to offer an opinion about how an accident happened. Common experts are physicians who may offer testimony about whether an injury was caused by a specific incident or whether a plaintiff will need further treatment or will be impaired for life. Defendants may also ask a plaintiff to undergo an independent medical examination which is generally allowed under Indiana Rule of Trial Procedure 35.
Pre-Trial: In this phase, the parties are anticipating trial but exploring other ways to resolve the case. A defendant may file a motion to try to obtain summary judgment.4 This entails the plaintiff filing a written response and possibly an oral argument. During this phase, informal settlement negotiations may be conducted by the parties, and mediation may take place. Mediation is a process where the parties come together with a registered mediator to try to resolve the case. In some jurisdictions in Indiana, mediation is required before proceeding to trial unless good cause is shown, and most jurisdictions regardless of whether it is required or not usually prefer that the parties attempt to resolve issues outside of court.
Trial: If the parties cannot resolve the lawsuit fully outside of court or via a dispositive motion like a motion for summary judgment, then a trial will be held. The trial may be conducted in front of a jury, or a party may waive their right to a jury trial and have a bench trial (i.e. where a judge acts as the fact-finder). Trials require extensive preparation to ensure that all appropriate evidence is admitted, to prevent the introduction of inadmissible evidence by the opposing party, to present to the facts in a reasonable and easy-to-follow manner, and to make convincing arguments connecting the applicable law with the facts of the case. Depending on the specific facts of the case, the trial may last many days.
We hope you find this blog post useful in providing information about Indiana personal injury cases. Ciyou & Dixon, P.C. advocates handle both simple and complex personal injury cases throughout Indiana. This blog post is written as general information and is not legal advice or a solicitation for services. It is an advertisement.
- This encompasses only a small range of possibilities of what might happen. For example, the wrongful party may not have insurance or may not have adequate liability limits to compensate you fully for the injury. In the case of an automobile accident, this may invoke the process of an uninsured/underinsured motorist coverage claim, which is outside the scope of this blog which describes the personal injury process more generally.
- Sometimes there are other deadlines that are important. For example, if you are making a claim against a municipal government or a state government, you usually have to submit what is called a tort claim notice to that entity at a time period earlier than that two-year window described in this blog.
- This is a general outline, and things actually may proceed quite differently depending on your specific case and the facts surrounding it.
- These motions usually come about if there are no genuine issues of fact. For example, if a defendant argues that a plaintiff was just not injured as he or she alleges in the accident or if the plaintiff and defendant disagree about the color of a stoplight, that is not usually appropriate for a summary judgment motion but instead an issue for trial. An issue that might be appropriate for summary judgment is whether a defendant owed a duty to a plaintiff at all – for example, if the defendant landowner argues that he or she owed no duty to an injured person because the injured person was trespassing on the property. Typically, it is only defendant’s who may file motions like this in a personal injury type of case.