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Navigating a New York Injury Lawsuit from Start to Finish

by | Jul 2, 2024 | Auto Accident Injuries, Personal Injury, Premises Liability, Slip, Trip And Falls

What to Expect in a New York Injury Lawsuit

Injuries can be life-changing events, and navigating the legal landscape afterward can be daunting. For personal injury victims, understanding each step of a lawsuit can help alleviate some of the stress and uncertainty. This comprehensive guide aims to walk you through the entire process of a New York injury lawsuit—from start to finish. Whether you’ve been involved in a car accident, a trip-and-fall incident, or any other personal injury scenario, this guide is for you.

PRE-SUIT INVESTIGATION 

The initial phase of any injury lawsuit involves a thorough pre-suit investigation. This is where your legal team gathers crucial information to build a strong case. This is where we develop the theory of the case on which we will hold the at fault parties liable. 

Available Liability Insurance: Businesses, landlords, and people purchase liability insurance to protect and cover them in case they injure someone due to their own fault. This type of insurance is called general liability insurance. Businesses that are doing well and need financial protection will have general liability insurance and often in large amounts. Whether or not there is liability insurance and how much insurance is key in determining how much your case can be worth. A company or person with no liability insurance is not a good thing because that means there is no immediate liquid asset that can pay you money for your damages. In the case where there is no insurance available, your money recovery would have to come from the person or company’s personal assets or bank accounts. A company or person that does not have general liability insurance typically does not have any or much money to compensate you, which is a likely reason why they did not have general liability insurance (they had no need for it because they had nothing to protect from a lawsuit). We will investigate and obtain insurance policies to know exactly if there is insurance available and also how much. 

Medical Records: Our office will request copies of your medical records relevant to the case and perform a review of the records creating a medical chronology. We will continue to request and obtain updated medical records throughout your case to keep our medical chronology up to date. This is why it is important to keep your attorney in the know about medical treatment as it is received in real time as well as any new medical doctors you receive treatment with. Collecting the medical records is an important first step before filing your lawsuit, as the type of medical treatment, amount of medical treatment, and severity of injuries is one of the most important factors in determining the value of your case. 

Landowner Records: In cases where a person is injured because of dangerous conditions on another’s property, research will be done to determine the legal owner of the property and the legal entities or persons in control of the property. This is done so that when it’s time to file the lawsuit, the correct legal persons or companies are named in the lawsuit. Typically this type of research involves researching property records to determine the ownership structure of the particular property. Our office has developed a key strategic relationship with one of New York’s premier land and title agencies whose team quickly and accurately obtains and analyzes years of property data to determine the ownership structure and the legal entities that own and or control the property. 

Liability Experts: In certain types of cases, our office will retain liability experts to prove your case. Liability experts are typically used in product liability cases, medical malpractice cases, or cases where a person is injured by a dangerous structure at a property that may not be in compliance with applicable building code. 

Car Accident Cases: In car accident cases our office will obtain police reports, explore potential witnesses to the accident, run DMV plate searches to determine driver history reports and insurance coverage, and determine the amount of liability insurance coverage that is available to you to compensate for your injuries. 

STARTING THE LAWSUIT

The parties to the lawsuit: the person bringing the claim is known as the plaintiff. The people or companies that are sued are called the defendants. 

Draft and file Summons and Complaint: Once the pre-suit investigation is complete, your lawsuit will be started. An injury lawsuit is started by filing a summons and complaint. The summons and complaint contains allegations that if true entitle you to receive money damages from the defendant. Once the summons and complaint are drafted, an index number will be purchased from the Court and the document filed. Once filed, your action has been started.

Serve the defendant with the summons and complaint: Once the summons and complaint is filed, it must be properly served on the defendant. Our process servers will properly serve the defendant and then provide our office with an affidavit attesting that proper service is complete. Our office will then file the affidavit of service with the Court. 

Defendants’ Response: After being served with the complaint, the defendant has a certain amount of time to respond to the complaint. Depending on how the complaint was served, the response is due within twenty (20) to forty (45) days. A defendant responds by either filing a motion to dismiss (rarely done in a personal injury action) or filing an answer denying the allegations in the complaint. 

What if the defendant does not respond? If the defendant does not respond then a motion (a request) is made in court asking to hold the defendant at fault for your accident by default. The Court will then provide an order holding the defendant at fault for your accident by default. Once the default order is obtained, an inquest (a hearing in court) will be held where the judge will award money damages the defendant owes you. Once you obtain the money award, you will now be a creditor of the defendant and the defendant a debtor to you. Outside counsel can be retained to enforce the money judgment similar to how a collection agency would seek to collect money on a credit debt. A default is typically not an ideal situation for a personal injury plaintiff, as it typically means the person or company sued does not have sufficient assets or liability insurance available for you to actually receive money for your injuries.  

DISCOVERY

After the lawsuit is filed and the defendant files its answer, the case moves into the discovery phase. The discovery phase is the pre-trial phase of the case where the Plaintiff and the defendant exchange records and information, serve discovery demands, conduct independent medical examinations of the plaintiff, and conduct depositions of each other. All discovery must be complete before the case can be certified ready for trial.  The purpose of discovery is to obtain information that will be needed to prove your case. It also serves the function of allowing the parties to learn the strengths and weaknesses of their position so that the plaintiff and defendant can each evaluate their case prior to trial and perhaps reach a settlement of the claim. 

Discovery Demands: A discovery demand is a written request served on the opposing party asking for the other party to provide something. For example, a defendant will serve a discovery demand asking for (1) authorizations to obtain plaintiff’s medical records; (2) copies of medical records; (3) photographs; (4) accident reports; and (5) other information or documents relevant to the personal injury claim. 

Discovery Responses: When you are served with a discovery demand, the party responding can either object to the demand or provide a response detailing whether or not the responding party has the information or documents requested and or providing the documents or information requested. A party typically has thirty (30) days to respond to a discovery demand. 

Combined Demands: At the very beginning of each case, the defendant will serve what is known as “combined demands.” Combined Demands are discovery demands asking for the typical information that is relevant to personal injury cases. The typical combined demands will include requests for the following: (1) authorizations to obtain plaintiff’s medical records; (2) copies of medical records; (3) photographs; (4) accident reports; (5) any pre-suit statements made by a party; (6) police reports; (7) surveillance video; (8) names of witnesses; (9) witness statements; and (10) a bill of particulars. The Plaintiff will also serve the defendant with combined demands asking for this information from the defendant (except for medical records, which the defendant would not have access to).  Both the defendant’s attorney and the plaintiff’s attorney would then provide a discovery response to each other’s combined demands. 

The Bill of Particulars: In a personal injury case, the Plaintiff will prepare a document that is known as the bill of particulars. This document is like an outline of the case, which include the alleged negligence of the defendant, the date of accident, time of accident, and the injuries the plaintiff is seeking money compensation for. 

The Preliminary Conference: This will be the first conference before the court. Either the plaintiff or the defendant will request the preliminary conference. Once requested, the court will notify the parties of a date for the lawyers to appear in court. At the preliminary conference, the court will issue a discovery order scheduling dates by which different discovery items must be completed. Four important dates the court will set are the deposition dates, the independent medical exam dates; the compliance conference date, and the note of issue date. 

Depositions: A deposition is a pre-trial legal procedure where a witness or party involved in a lawsuit provides sworn testimony outside of the courtroom setting. This testimony is given under oath and is recorded by a court reporter. The plaintiff will appear for a deposition first at which the plaintiff will answer questions by the defendant’s attorney about how the accident happened, the medical treatment received, and the injuries. Once the plaintiff’s deposition is done, the defendant will appear for a deposition at which the plaintiff’s attorney will ask questions to the defendant relevant to the accident. 

Independent Medical Exams: Once the plaintiff’s deposition is finished, the defendant will typically hire a doctor to be an expert for the defendant. The defendant’s doctor will review the plaintiff’s medical records and perform a physical medical examination of the plaintiff. The independent medical examination will typically be completed within sixty (60) days after the plaintiff appears for his or her deposition.  After the independent medical examination is finished, the defendant will serve the plaintiff’s attorney with a written report of the doctor’s findings. The purpose of the independent medical exam is so the defendant can analyze the injuries and prepare a possible argument that the accident was not the cause of the injuries plaintiff is claiming and or the plaintiff no longer needs further medical treatment and has fully healed. The plaintiff will retain their own medical expert as a rebuttal to the defendant’s medical expert. Both the plaintiff and defendant will then have medical experts available to testify at trial in support of the claims being made and the defense being asserted. 

What If a party Does not Respond to a Discovery Demand: If a party does not respond to a discovery demand, the party who made the discovery demand will have to make good faith efforts to try and get the other party to respond by, for example, making written requests to the other party asking for a response. If the other party still wont respond, the remedy is to file a motion (a written request) with the court asking for the court to order the party to respond. For example, if the plaintiff serves the defendant with a discovery demand asking for documents and the defendant does not timely respond, the plaintiff will file a discovery motion with the court asking the court for sanctions and or to order the defendant to respond by a certain time. The courts in New York will typically require the defendant to violate several court orders before issuing any type of sanction. The failure of a defendant to timely respond will require several motions and many months of effort to gain a response. If after obtaining several court orders the defendant still does not respond, the court will issue an appropriate sanction against the defendant such as holding the defendant at fault for the accident by default. 

The Note of Issue: Once all discovery is complete (demands responded to, bill of particulars served, depositions done, independent medical exam held), the plaintiff will certify that all discovery is complete and file with the court a document known as the “note of issue.” Once the note of issue is filed, the discovery phase of the case is over and the case goes onto the court’s trial calendar. 

THE TRIAL CALENDAR 

Once the case is on the trial calendar, the case is essentially waiting in line before all other cases waiting for the court to send the case out for a jury trial. New York courts are extremely backlogged with thousands of cases on the trial calendar. Each court has a different backlog, but regardless of what court the case is before,  a case can be on the trial calendar for a year, two years, and in some courts longer before the case will actually go out for a jury trial. Many personal injury cases are resolved through settlement negotiations rather than going to trial. 

Pretrial Conferences: As the case waits in line, the court will call the attorneys every couple of months for a pre-trial conference. The purpose of the pre-trial conference is to keep the parties informed as to when the case will be sent out to trial and for the court to try and have the parties settle the case. Typically, the case will be conferenced with a judge or court mediator who will try and help the parties negotiate between each other in hopes that a settlement of the claim can be reached. 

Out of Court Settlement Negotiation: Now that discovery is complete and each party knows the strengths of their position, the plaintiff’s attorney and defendant’s attorney will often be discussing and negotiating a potential settlement in advance of trial. 

SETTLEMENT NEGOTIATIONS 

Many personal injury cases are resolved through settlement negotiations rather than going to trial. This phase involves discussions between your attorney and the defendant’s representatives to reach a fair compensation agreement.

Evaluating Settlement Offers: Your attorney will help you evaluate any settlement offers received. They will consider factors such as medical expenses, lost wages, pain and suffering, and future medical needs to determine if the offer is fair.

Negotiating for Better Terms: If the initial settlement offer is insufficient, your attorney will negotiate for better terms. This may involve presenting additional evidence or expert testimony to support your claim.

Finalizing the Settlement: Once both parties agree on a settlement amount, the agreement is finalized, and the case is resolved. This avoids the need for a lengthy and costly trial. The amount of time it takes for a case to settle can vary significantly depending on the complexity of the case and the extent of injuries. In general, where the fault of the defendant is clear and the injury and future ramifications of that injury are known, a case may settle relatively quickly, within a few months to a year. However, more complex cases may take a year or more to reach a settlement. This is especially in cases where the injuries are significant, and the case is of high monetary value. Most often, serious settlement discussions and offers are made from the insurance companies once the case gets onto the trial calendar being that all discovery is complete. 

THE TRIAL 

A personal injury case is resolved either by (1) a settlement (an agreement to the defendant to pay plaintiff a specific amount of money) or (2) a jury trial. 

Jury Selection: Juries in New York courts are selected through a process known as “jury selection.” Before the trial starts, potential jurors will gather at the courthouse. The attorneys in the case will ask the jurors questions to determine their suitability for the case. This process is known as “voir dire.” Attorneys for both sides have the opportunity to use peremptory challenges to remove potential jurors without having to provide a specific reason. In addition, they may have a limited number of strikes for cause, which require a valid reason for disqualification. After the voir dire process, a panel of potential jurors is selected who will decide the issues in the case. 

Opening Statement: An opening statement is a component of a trial where attorneys for both sides, the plaintiff and the defendant in a civil case, have the opportunity to present an overview of their case to the judge and jury. The opening statement is not a time for presenting evidence or arguments; instead, it serves as an introduction to the case, outlining what the attorneys expect to prove during the trial.

 Plaintiff’s Case in Chief: The plaintiff’s case in chief refers to the portion of a trial in a civil case where the plaintiff (the party bringing the lawsuit) presents their evidence and witnesses to prove their claims against the defendant (the party being sued). As the plaintiff, your attorney will call you to the witness stand and conduct what is called “direct examination.” Direct examination is a phase of a trial during which an attorney questions their own witness to elicit testimony and evidence that supports their case. Following the direct examination, the defendant’s attorney will perform a cross examination of the plaintiff. Cross-examination is a phase of a trial during which an attorney questions a witness called by the opposing party in order to challenge or impeach their testimony, credibility, or the facts presented during direct examination. This process is an essential part of the adversarial system and is used to test the veracity of the witness’s statements, clarify points, and potentially weaken the opposing party’s case.

The Jury Verdict: In a New York personal injury case, a jury verdict is the final decision rendered by a jury of the defendant’s liability (whether the defendant is responsible for the plaintiff’s injuries) and, if liability is established, the amount of damages to be awarded to the plaintiff. Once the jury has reached a unanimous decision on both liability and damages, they inform the court, and the verdict is read aloud in the courtroom. The court enters a judgment based on the jury’s verdict. The judgment outlines the amount of damages to be awarded to the plaintiff if the defendant was found liable.

Post Trial Motions and Appeals: The post-trial motion and appeal process in a New York personal injury case allows parties to seek a review of the trial’s outcome or address potential errors that occurred during the trial. The post-trial motion and appeal process will also include a request by the defendant to reduce a money award if the defendant thinks it is excessive. 

1.Post-Trial Motions:

  1. Motion to Set Aside Verdict (Judgment N.O.V.): After the jury has rendered a verdict, the losing party may file a motion to set aside the verdict or request judgment notwithstanding the verdict (Judgment N.O.V.). This motion argues that the jury’s decision was not supported by the evidence presented at trial or that it was legally incorrect.
  2. Motion for a New Trial: Either party can file a motion for a new trial. This motion is typically based on errors that occurred during the trial, such as issues related to evidence, jury instructions, or other trial procedures. It may also be based on the belief that the jury’s verdict is against the weight of the evidence.
  3. Motion to Reduce Money Award: New York courts are expressly granted power to review a jury’s decision on how much money to compensate an injured person. The court reviews the jury’s decision by deciding whether the money given by the jury to compensate the plaintiff was “excessive or inadequate.” The court decides whether a jury’s decision was “excessive or inadequate” by reviewing all of the facts and past jury verdicts to determine whether or not the jury’s decision “deviates materially from what would be reasonable compensation.” In other words, if the compensation given by a jury is too great, the courts will reduce the award based on the facts of the case and comparing jury verdicts given in other similar cases.
  4. Appeal Process:
  5. Notice of Appeal: If post-trial motions are unsuccessful or if the parties are dissatisfied with the outcome of the post-trial motions, they can file a notice of appeal to initiate the appeal process. The notice of appeal is filed with the appropriate appellate court, and it must be done within a specified time frame, typically 30 days after the entry of the judgment.
  6. Appellate Briefs: The parties submit appellate briefs that outline their legal arguments and the reasons why they believe the trial court’s decision was incorrect. The party appealing is called the “appellant,” and the opposing party is the “respondent.” Both parties present their arguments in written briefs.
  7. Oral Argument: In some cases, the appellate court may schedule an oral argument, during which the parties present their arguments to a panel of judges. This allows the judges to ask questions and seek clarification on the issues raised in the briefs.
  8. Appellate Decision: The appellate court will issue a decision after reviewing the written briefs, oral arguments (if applicable), and the trial record. The decision may affirm the trial court’s judgment, reverse it, or remand the case for further proceedings.

CONCLUSION

Navigating a New York injury lawsuit can be complex and overwhelming, but understanding each step of the process can help you feel more confident and prepared. From the pre-suit investigation to the trial and beyond, every phase is crucial in building a strong case and securing fair compensation. If you’re facing a personal injury situation, don’t hesitate to seek professional legal assistance. An experienced attorney can guide you through the process, advocate for your rights, and help you achieve the best possible outcome. Whether you’re dealing with a car accident, a slip-and-fall incident, or any other injury, taking the right steps can make all the difference.

For more information or to discuss your case, feel free to reach out to our team. We’re here to help you every step of the way.

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