Procedural Steps In a Texas Personal Injury Claim
Investigation and recovery
In the initial stages of the case, the client’s main concern should be recovering from the injuries. While the client is undergoing treatment, we may contact witnesses, take photos, and gather documents and other physical evidence.
Once it appears the client is almost recovered or is reaching maximum recovery, we begin collecting the client’s medical records and preparing a settlement package. The amount of time it takes to prepare the settlement package is often dictated by how long it takes medical providers to forward records to us.
After the settlement package is sent, we give the defendant or insurance company a couple of weeks to go over it. When the negotiations begin, our client must approve any offers or counter-offers. Ordinarily we should know whether we will settle or whether we will have to file suit within 30-60 days from the time we send the settlement package.
If the other side fails to make a fair offer, we will file suit, with your permission, of course.
During the lawsuit, the parties exchange information through the discovery process. Written discovery consists of Requests for Disclosure, Interrogatories, and Requests for Production. Requests for Disclosure and Interrogatories are questions one side sends to the other trying to find out the facts of the case, background information, and the other party’s legal theories. A Request for Production asks each side to provide documents that are relevant to the case. In some cases, parties will send Requests for Admissions, which ask parties to admit whether certain assertions are true.
In addition to written discovery, the parties usually take depositions of the parties, treating physicians, experts and other people who have knowledge relating to the case. During depositions, the attorneys ask the witness questions about the lawsuit. The witness is sworn under oath and the testimony is admissible at trial just as if the witness had appeared live at trial. Some depositions are videotaped so the videotape may be shown to the judge or jury.
In most cases, the parties will also be required to attend a mediation if the case has not already settled. Mediation is essentially a structured settlement conference. The parties usually begin the mediation in one room, with each side telling its version of the case. The mediator then separates the parties and practices shuttle diplomacy by going back and forth between rooms with arguments and settlement offers. Mediators often act as “devil’s advocates,” asking the parties to consider the weaknesses of their case. Mediators do not decide who’s right and who’s wrong; they facilitate the settlement.
If the case does not settle in mediation or otherwise, then the parties will proceed to trial to have a judge or jury determine the outcome of the case.
Once the trial has been completed, the losing party has the right to appeal the judgment to the Court of Appeals and possibly the Supreme Court. Appeals can potentially last several years.
Once the plaintiff obtains a final judgment, the plaintiff may begin attempting to collect the judgment from the defendant. If the defendant is insured, the insurance company will usually tender the amount owed. If the defendant is not insured, the plaintiff must take actions to begin discovering and collecting the defendant’s assets. A plaintiff can continue collection activities until the judgment is satisfied, unless the defendant files bankruptcy.