In most cases of a personal injury claim, the case does not make it to the courtroom – a settlement is reached before trial. Sometimes a settlement cannot be reached, and your personal injury case may have to reach the courtroom.
The thought of a court case can be daunting for some people. To avoid being overwhelmed by this process, it is important to know what the steps are, and how your personal injury lawyer fits in.
Filing Papers
One of the most important role of your personal injury lawyer is to file the lawsuit before the limitation period expires..
The statement of claim is the document that starts the formal legal process and will be a summary of the allegations you hope to prove at trial. The at fault party's lawyer will file a defence to the claim.
Discovery
The next major step in the process is what is commonly referred to as discovery. There are two components of discovery. The first is the oral examination under oath and the other is documentary discovery.
At your examination for discovery, you will be questioned by the opposing lawyer about how you sustained your injury and the effect having the injury has had on all aspects of your life. Your evidence is recorded by a court reporter and a transcript is made. The opposing lawyer is assessing not only the substantive evidence you provide but the manner in which you convey it.
Before your discovery, your lawyer will prepare an Affidavit of Documents which shall contain all documents relating to the personal injury claim. This will be shared with opposing counsel. Your lawyer will also request documents from the opposing lawyer including the particulars of all background investigation and surveillance.
Pre-trial Conference Hearing/Private Mediations
After the discoveries are over and the lawyers have had an opportunity to fulfil any requests for additional documentary evidence, there is often the possibility of going to a mediation with a private mediator to attempt to settle the claim. By this stage, your lawyer should have a good idea of the quantification of your damages.
Prior to trial, the court will schedule a pre-trial hearing with a judge where you and your lawyer will have the benefit of obtaining a judge's opinion on the merits of your claim and quite often the assessment of damages.
Trial
The trial will be the forum where both sides put forward their arguments, examine and cross-examine witnesses, and your damages will be assessed most often by a jury of six individuals. You will testify in detail about your claim.
Appeal
If you or the defendant is not satisfied with the result at trial, there may be an appeal of the court's decision. Appeals take place based on an error in law – that the law was incorrectly applied by the court – or an error in fact – that the facts of the case do not support the court's decision – or a combination thereof. Errors in law are far easier to prove than errors in fact, particularly since an appeal does not constitute a new trial, but a presentation based on the findings and evidence of the original case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
