Many personal injury claims go to court, but almost none of them go to trial. Statistically, less than 3 percent of civil cases go to trial. If there is no dispute as to liability, injury claims usually settle before the claim sees the inside of a courtroom. However, there is almost always at least some dispute as to liability. Insurance companies usually dig in their heels in these situations, even if the victim/plaintiff’s case is very strong.
Generally, the statute of limitations in a negligence claim is two years. That sounds like a long time, but as most of us know, time passes quickly. In a complex case, medical treatment might take up to a year. Settlement negotiations cannot begin in earnest until that happens. In these situations, there is not much time left.
Therefore, a Marietta personal injury attorney often must file legal paperwork to preserve the victim/plaintiff’s rights. A failure to do so usually means that the victim/plaintiff is ineligible for any form of compensation. This situation is normally impossible to correct, because no one can turn back the clock.
Procedure varies in different jurisdictions in the metro Atlanta area. Furthermore, procedure often varies among individual judges in the same county. And, many of these rules are unwritten. Nevertheless, it’s possible to give a general outline of a civil case. Knowing roughly what to expect helps our clients make better choices about their futures.
Filing a Claim
In some respects, filing a legal claim is a rather simple matter. Georgia is a notice pleading state. So, a petition need only state the parties and the basic nature of a claim (X and Y were in a crash on Z date).
However, in some other ways, there are a number of decisions to make. Jurisdiction is one such issue. Certain courts have legal authority to hear certain cases. In Georgia, jurisdiction over personal injury cases is divided between:
- State courts and
- Superior Courts.
There are pros and cons for each court. A judge’s temperament and track record is a good example. Some judges are no-nonsense judges who just want to end matters as quickly as possible. Others are more willing to look at intangible factors before making decisions.
On a similar note, some judges have a track record of siding with insurance companies, and some side mostly with victims. Since appeals courts rarely second-guess judicial decisions unless they are off the rails, it’s important to select a judge that is favorable or at least neutral.
Venue could be an issue as well. That’s the term for a place where a Marietta personal injury attorney files a legal claim. Typically, venue is proper where:
- The plaintiff resides or
- The injury occurred.
Once again, there are pros and cons on each side. Assume the plaintiff, who lives in Cobb County, was seriously injured in a Fulton County crash. Filing suit in Cobb County would probably be more convenient for the plaintiff. However, most of the physical evidence is probably in Fulton County.
After the victim/plaintiff files an initial pleading, the insurance company always files responsive pleadings.
A quick side note. In most vehicle collision and other personal injury claims, the tortfeasor’s (negligent actor’s) insurance company has a legal duty to provide a defense. So, the defendant is not the tortfeasor individually, but the tortfeasor’s insurance company.
Responsive pleadings usually include pretrial motions. These motions seek to throw the victim/plaintiff’s claim out of court. Common motions include:
- Motion to Dismiss: Insurance company usually file motions to dismiss for procedural reasons. Perhaps the attorney filed paperwork in the wrong county or the aforementioned statute of limitations has already expired. Before Cobb County judges dismiss claims, they often give attorneys a chance to amend their pleadings and make them procedurally acceptable.
- Motion for Summary Judgement: These motions come a bit later. Typically, the insurance company argues that there is absolutely no evidence on a certain element of the claim or the evidence is so overwhelming that a jury could only reach one verdict.
These motions rarely succeed. Most judges hesitate to take a case out of a jury’s hands except in extreme circumstances. However, it is time-consuming, and nerve-racking, to defend them.
A civil action is not like a poker game. In personal injury cases, both sides must put all their cards on the table. That’s what discovery is all about. Generally, this phase of a trial involves both oral and written discovery.
Oral discovery typically means depositions. For example, the insurance company’s lawyer might interview the victim/plaintiff under oath. There is no judge and no jury. Depositions provide the other side with information about a case and are also admissible in future court proceedings.
Written discovery usually means things like document requests and answers to written questions. For example, a victim/plaintiff might want information about an insurance policy’s coverage limits. Written discovery often includes medical examinations as well. Most insurance companies demand that victim/plaintiffs get a second opinion about their injuries.
Insurance companies often file motions to dismiss shortly after the victim/plaintiff files a claim and motions for summary judgement after discovery is complete.
As mentioned, only a handful of cases go to trial. Instead, mediation resolves the vast majority of these disputes. Most judges automatically refer all claims to mediation.
During mediation, a neutral third party meets with the victim and insurance company, conveying settlement proposals and counterproposals. Over the course of a few hours, the mediator tries to bring the two sides together. If both sides negotiate in good faith, mediation is usually successful.
Mediation has a number of benefits, mostly with regard to time and money. A successful mediation conserves both these things, which is why a mediated settlement is usually in everyone’s best interests.
Connect with a Tenacious Lawyer
Most civil cases settle out of court, but they might not settle right away. For a free consultation with an experienced personal injury attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.