I. PLEADINGS
Pleadings are the legal papers filed in court. The plaintiff lawyer (your lawyer) starts the lawsuit by filing a complaint. A complaint is a pleading that briefly describes the accident and the damages suffered. The complaint will also describe the legal reasons for the lawsuit.
The defendant (the person or company being sued) files an answer. The answer is a pleading that lists the defendant’s defenses to the charges stated in the plaintiff’s complaint.
Sometimes the defendant will file a counterclaim. A counterclaim is a pleading that claims the defendant was injured by the plaintiff and that the defendant is entitled to collect money from the plaintiff.
The defendant may file a cross claim stating that a co-defendant is responsible and should pay for his or her damages. Also, the defendant can file a third party claim which states that a person not yet in the lawsuit is responsible and should pay for injuries claimed by the plaintiff or defendant.
II. DISCOVERY
Discovery is the formal investigatory part of a lawsuit. It allows you (the plaintiff) and the opposition (the defendant) to obtain information that may lead to evidence that could be used at trial.
The discovery process normally starts off with interrogatories (written questions) and requests to provide documents (medical records, photographs, reports, employment records, tax records, etc.).
The next phase in most cases is taking formal depositions of the plaintiff, defendant and important witnesses. Depositions are usually taken at a law office. A court reporter will be present.
At the start of your deposition, the court reporter will ask you to take an oath or affirm that you are telling the truth. The opposing lawyer will then have the opportunity to thoroughly question you about your background, facts surrounding the accident, and any information that may lead to relevant information, including your past medical history.
Your lawyer will not ask you questions during your deposition. However, he or she will prepare you for the type of questions to expect and, be present for you to confer with, object to improper questions and provide moral support.
Your lawyer will take depositions of the opposing party and important witnesses. Depositions involve considerable expense. The type of case you have will govern how many formal depositions are taken.
III. PRETRIAL MOTIONS
Before your case gets to trial, lawyers will sometimes file various motions with the court. For instance, a lawyer may ask that certain evidence be excluded or that certain evidence be included at the time of trial. These types of requests are called motions in limine.
The most important and, for the plaintiff the most troublesome, is a motion for summary judgment. That is a request by the opposing lawyer that your case be dismissed without the need for a trial. The basis for summary judgment dismissal is that there is insufficient evidence to prove the necessary requirements of your lawsuit. The judge will base his or her decision on the deposition testimony, the written discovery, sworn statements from witnesses, reports and physical evidence. Motions for summary judgment are commonly filed by property owners and are often granted in slip and fall cases.
In some cases, your lawyer may ask for summary judgment on issues favorable to your case. For instance, in an auto accident case in which the defendant and all the witnesses agree that the defendant caused the accident, the plaintiff lawyer (your lawyer) may file a motion for summary judgment. If the motion is granted, the only issue to be decided at trial would be the extent of any injuries caused by the accident, and then how much money the plaintiff should be awarded.
IV. MEDIATION
Mediation is a form of ADR (alternative dispute resolution) in which opposing parties meet with a mediator who will try to facilitate a settlement of the lawsuit. Usually the mediator will be a magistrate employed and paid by the court. Other times, the parties hire and pay a private mediator.
In most mediation proceedings, the parties and lawyers will meet with the mediator in a courtroom or conference room. The mediator will explain the proceeding to the parties and then ask the attorneys on each side to briefly summarize their clients’ positions. If the defendant is insured for the accident, an insurance representative will be present. In that case, the responsible party will usually not attend the mediation, because, in most cases, the decision to settle the case is made solely by the insurance company.
Once the positions of the parties are stated, the mediators will separate the sides. The mediator will often shuttle back and forth between the plaintiff and the defendant with various settlement offers in an attempt to reach a compromise.
Statements you make to the mediator are confidential and will not be disclosed to the other side unless you give him or her permission to do so. Mediators often are experienced lawyers that have participated in hundreds of cases, with issues similar to yours. He or she can provide an unbiased perspective as to multiple ways your case could be decided if it proceeds to trial.
The advantages of mediation are that it allows you to avoid the delays, uncertainty and costs of a jury trial. In a personal injury case, the cost of presenting medical testimony live or by video could range between two and ten thousand dollars or more for each doctor testifying for you.
V. JURY TRIAL
If your case makes it past summary judgment and has not settled at mediation or in private conversation between your lawyer and the defendant, the case will proceed to trial. Most civil personal injury trials last two days to a week. Complex cases can last much longer. The jury trial process can be broken down into the following seven parts:
1. Jury Selection
In Ohio, civil juries are made up of eight jurors and usually one or two alternate jurors. Jurors are selected from a list of registered voters and licensed drivers living in the county where the court is located.
Jury selection will start with a courtroom full of prospective jurors. The judge will call eight into the jury box. If there is a legal reason a juror cannot serve, that juror will be excused by the judge. The lawyers for each party will question the jurors. Each side may remove up to three jurors. These removals are called preemptory challenges. Usually, no reason needs to be given when using these challenges. When a juror is excused, the next one listed is called into the jury box and questioning resumes.
This process continues until each side is satisfied or has used up its three preemptory challenges. Usually one or two alternate jurors are also selected.
2. Opening Statements
Opening statements are made by the lawyers for each side. The opening statements provide a preview and summary of what each party intends to prove by way of evidence.
3. Presentation of Evidence
This is the part of the trial in which each party may call witnesses and present documentary and physical evidence to prove their case.
The plaintiff’s lawyer (your lawyer) will call his or her witnesses first. The defense lawyer is permitted to cross examine each witness. Expert witnesses such as doctors may testify by way of a video deposition recorded by the attorneys and the witness, prior to the start of the trial.
When your presentation is completed, the defense may move (ask) that your lawsuit be dismissed for lack of proper evidence. If the court grants the defense motion, the trial will be over and judgment will be granted against you in favor of the defendant.
If the court refuses to dismiss your case, the defendant may call witnesses and present documentary and physical evidence to support the defendant’s case.
When the defendant completes its case, the plaintiff is permitted to present evidence to rebut the defense evidence.
At the close of the witness testimony, the judge will rule on what exhibits (pictures, medical records, physical evidence, etc.) will be given to the jury to consider.
4. Closing Arguments
This is the part of trial often seen depicted on TV and in movies. During closing arguments lawyers for each side summarize their cases, review the evidence, and argue why the jurors should rule in their favor.
The plaintiff lawyer (your lawyer) will make his or her argument first. That will be followed by the defense lawyer’s argument, after which your lawyer will argue your case to the jury one more time.
5. Jury Instructions
After the closing arguments are completed, the judge will instruct the jury as to the laws that apply to your case, and depending on their decision, how to complete the verdict forms.
Before trial, the attorneys submit instructions that they want the judge to include in his or her instructions. If the lawyers do not agree on a particular instruction, the judge will decide which to include. The final instructions are read to the jury. A copy of the judge’s instructions is provided to the jury to refer to when they deliberate your case.
6. Jury Deliberation
After the judge instructs the jury as to the law they are to apply, the jury is directed to a jury room to begin their deliberation.
The first job the jury has is to elect a foreperson. The foreperson leads the discussions, keeps track of votes, and is responsible for properly filling out the verdict forms.
In Ohio, a unanimous jury is not necessary to decide a civil case. If six out of the eight jurors agree, a verdict will be rendered. In personal injury cases, the jurors must decide if the defendant is responsible for the plaintiff’s injuries and then decide the amount of any money the plaintiff should receive.
Juries sometimes decide a case in less than an hour; other times they take days to decide a case. The time period during which the jury deliberates is the most nerve wracking part of the trial for the parties and the lawyers.
7. Verdict
When at least six of the eight jurors agree on the outcome of the case, the foreperson will notify the court. The parties and the lawyers will be called into the courtroom. The jury will be brought into the court room.
The foreperson will hand the verdict forms to the judge. Seconds will pass very slowly and then the judge will announce the verdict. The judge will allow the attorneys to review the verdict forms. If satisfied that the jurors complied with the law, the jury will be excused and the trial will be concluded.
