The Lawsuit Process
Table of Contents
Although no two lawsuits are exactly the same, each lawsuit filed in Supreme Court in New York follows essentially the same steps as it moves from commencement to resolution. Here are the steps our attorneys can take with you in the course of your lawsuit. You can use these steps to follow the progress of your case or simply to educate yourself.
Summons and Complaint
The “Summons and Complaint” is the start of your lawsuit. The Complaint – a legal document that our New York City personal injury lawyers at Mirman, Markovits & Landau, P.C. can prepare – sets out the general nature of your claim, including the date and place of your accident.
In New York State, a Complaint in a personal injury action may not state an amount of money you are suing for. The jury is allowed to award as much or as little as they find you are entitled to. After preparing the Summons and Complaint, Mirman, Markovits & Landau, P.C. will file them in court and have a process server serve them on the defendant, the person, or the company you are suing.
The Jury Process in New York: Answer
The defendant has approximately 30 days to serve its response to the summons and complaint, once they are served and the affidavit of service is filed. This response is called an “Answer.”
The “Answer” is the defendant’s position on your claims. The typical stance of a defendant is to deny all claims. Once we receive the “Answer,” we will prepare your Bill of Particulars, which is the next step in the process.
Bill of Particulars
A Bill of Particulars is another legal document prepared by our New York City personal injury attorneys at Mirman, Markovits & Landau, P.C. This document explains your injuries, medical bills and lost earnings, and also sets out more fully the details of the accident and how the defendant is responsible for your injuries.
At this time, the defendant will usually ask you to produce the following items (or authorizations to obtain these items):
- Employment authorizations for W2’s
- If you were self-employed, copies of tax returns, or authorizations for the defendant to obtain your tax returns
- Your insurance information for private medical insurance, disability, Workers’ Compensation, or unions, and sometimes for Medicare and Medicaid
- The full names and addresses of any witnesses, including eye-witnesses, people who came to your aid after the accident, or people who knew about the condition that caused your accident
- Bills for medical care, medical supplies, transportation, home health care, child care, and property damage, if applicable
- Photographs of injuries, the site of the accident, the condition that caused the accident, the vehicles involved or vehicle damage, if applicable.
- Names and addresses of your medical care providers, including doctors, physical therapists, and hospitals and authorizations for the defendant to obtain their records
The Lawsuit Process: Preliminary Conference
What is a Preliminary Conference?
A preliminary conference is the court conference that schedules the document production and mandatory oral and physical examinations that will take place. It is usually the first court appearance in a personal injury lawsuit.
The conference is required by the Court before a personal injury case can be placed on the trial calendar. It results in a Court order setting out the information, documents, and authorizations you, as the plaintiff, and the defendant must exchange. It also sets dates for mandatory physical and oral examinations.
The plaintiff does not attend this conference; only his or her attorney.
Our New York City personal injury attorneys at Mirman, Markovits & Landau, P.C. will attend this conference on your behalf and relay all instructions from the Court to you for your compliance.
After this conference, we will notify you of the date of your Court-ordered Examination Before Trial (EBT) and physical examination and help you prepare in advance.
Every judge works differently. Some judges have a preliminary conference where they set a date by which the exchange should take place and then set a date so the case can be placed on the trial calendar.
Other judges give the parties specific dates for exams and exchanges and require the parties to return to Court to attest that they have complied. On the compliance date, the Court determines whether all exchanges have been made. If so, the judge will permit us to place your case on the calendar for trial.
Preparing for Examination Before Trial (EBT)
Examination Before Trial Definition
An Examination Before Trial, also called a deposition, is an oral examination by the attorney for the party you are suing. It is usually conducted informally outside of Court, but is still under oath is conducted in the presence of a court reporter who will take down your answers.
The purpose of this examination is to learn as much as possible about your claim and to make any issues known so that there are no surprises at trial.
When an Examination Before Trial (EBT) is ordered by the Court, you must attend – it is not optional. Failing to do so can result in delays or even dismissal of your case.
However, you should not be intimidated if an EBT is ordered. All you need to do is ensure that you are prepared and trust in the guidance of your attorney.
What to Expect at an Examination Before Trial
The impression you make is important, so neat and professional dress is essential. Men should wear a tie and jacket and women should wear a skirt or dress.
The attorney for the defense will ask you about your accident and your injuries. When you work with Mirman, Markovits & Landau, P.C., one of our personal injury lawyers can prepare you and guide you through the examination.
We will work with you prior to this examination to get a better understanding of what happened before, during, and after your accident. Not only can this help our client refresh their memory, but it also helps them to be more prepared, confident, and at ease during the examination.
It is important to appear natural and to answer questions honestly. However, it should be noted that you do not need to provide more information than what is asked of you and what it necessary. Stick to the facts and follow your attorney’s guidance to ensure that your rights remain protected.
If you need an interpreter present at your examination, you must let us know as soon as possible so we can arrange one for you. You will need to confirm the arrangements of this examination one day in advance with our office so we can be sure to advise you of any changes in scheduling.
Unfortunately, many times defendants and their lawyers are unprepared to go ahead and their examinations before trial must be rescheduled. To ensure this does not happen to you, call Mirman, Markovits & Landau, P.C.
During the lawsuit process, the defendant is entitled to request that you, as the plaintiff, submit to a physical examination by a doctor of his or her choosing. This examination will be in regard to the injuries you’re claiming.
The defendant will appoint a doctor, and you must attend. If you do not attend, the Court can order you to pay for the missed appointment. The Court can even dismiss your case, which means you will never recover any money. Don’t let this happen – contact our New York City personal injury firm to properly prepare for this stage of the lawsuit process.
The doctor is not examining you to help your medical condition. Rather, he or she will be looking for reasons that can be used to testify AGAINST you. So tell the truth and be cooperative, but do not discuss the details of the accident. Leave all accident-related discussions to our team at Mirman, Markovits & Landau, P.C.
It is sufficient for you to say, for example, “I fell,” or “I was a driver or passenger in a car accident.” Most times, the doctor has already been provided with a copy of your examination before trial testimony, your bill of particulars, or a synopsis of your accident by the defendant’s attorneys, so the doctor knows all about the happening of your accident.
At this time, it is imperative that you reveal ALL your physical and mental problems relating to the injuries you suffered in the accident. If you omit one of the injuries from the accident, the doctor will not include it in his report to the insurance company and this may lessen the value of your case.
If you have a problem at the doctor’s office or with the doctor, call us immediately from the doctor’s office. Medical appointments of this nature are always on weekdays during working hours, and if there is a problem, we are here to help you.
Discovery and Inspection
Discovery and Inspection is the exchange of information and documents between the plaintiff and the defense. It can include requests for items specified in your Bill of Particulars, such as medical, school, employment and property damage records, photographs, as well as items disclosed at your examination before trial or physical examination.
The defendant may also demand that you allow them access to your private social media, like Facebook or Twitter, hoping you’ve posted photographs or written something that contradicts your court statements.
Information you post on social media is not necessarily considered private by the courts, and even if you consider it private, your friends can disclose information and photos about you. The safest bet is to stop using social media and stop posting personal information on social platforms.
During the Discovery and Inspection phase, defendants will also be required to produce their insurance information, names of their witnesses, photographs, statements they may have from you, videotapes, and other pertinent information.
It is also at this time that defendants must disclose that they have videotape of your accident, or the scene of your accident, or of you being followed by one of their investigators.
The more serious your case and the more disabling your injuries, the more likely it will be that the defendant’s insurance company has had you followed by surveillance cameras for the specific purpose of undermining your claims and catching you on film walking a couple of steps from a wheelchair to a car, for example.
It can be almost guaranteed that, at trial, defendants will not show the hours and days of videotape they have of you confined to your wheelchair. Instead, the defendant and their legal counsel will show the 10 seconds you stood to get into the car.
Defense tactics like this are to be expected, which is why our team of New York City personal injury lawyers prepares appropriately during the Discovery and Inspection phase.
Settlement, Arbitration & Mediation
An insurance company or the lawyers for the defendant can make a settlement offer at any time during a lawsuit, even before the Summons and Complaint is filed.
Generally, however, defendants’ representatives want all the information about your accident and injuries first. Completion of discovery usually starts settlement discussions, which can take place over the course of days, weeks, months, or even years.
Our lawyers at Mirman, Markovits & Landau, P.C. will vigorously pursue settlement discussions with insurance company representatives in pre-trial Court conferences, over the phone, or at out-of-court mediations or arbitrations agreed to voluntarily by the parties involved. The point is always to get the right settlement number for your particular case.
What is Mediation?
At a mediation or arbitration, both the plaintiff’s and defendant’s attorneys provide their information about a case to an agreed-upon judge.
After a period of
defining problems, and
working towards a solution,
the judge will recommend a settlement, which the parties can accept or reject. In an arbitration, the judge’s decision is binding and cannot be rejected. These methods of dispute resolution is typically quicker and less costly than litigation.
How long does it take to receive money after a settlement?
If a settlement is reached, the defendant’s representatives generally have 21 days to pay once they receive your signed, notarized settlement papers by certified mail.
There are exceptions, however; for example, the City of New York has 90 days to pay a settlement. The New York State Insurance Department, which handles bankrupt insurance companies, is exempt from time constraints.
Recent Federal legislation, which mandates that insurance companies and plaintiffs determine and repay applicable Medicare liens, also delays payment of settlements.
Put a New York Personal Injury Lawyer on Your Side
Whichever path your case takes— to arbitration, mediation, settlement, or on to the trial calendar— Mirman, Markovits & Landau, P.C. can discuss with you the advantages of each settlement offer made and strive to obtain the best settlement offer for your case. Call our New York personal injury lawyers today.
Filing for a Calendar Date
Once Discovery is complete, we will be allowed to file calendar papers in Court stating that your case is ready for trial. Cases are tried in the order they are added to the calendar. When the cases before your case are resolved, you be called for trial.
Each judge works differently and at his or her own pace, so it is impossible to know exactly when your case will come up for trial. However, the Courts do publish their own “standard and goals” dates, which are the Courts’ general expectations based upon their statistics of approximately when your case will be called for trial.
If you are over 70 years of age, you will be entitled to a special preference upon proof of age, and your case will come up faster in court. Please remember to send us a copy of your birth certificate at this time. For additional information regarding this phase of the lawsuit process, call our office at 212-262-0289.
While your case is awaiting a trial date, the Court may call for a pre-trial conference. This means that we, along with the defendant’s attorney and sometimes an insurance company representative, will appear at a conference before a judge to see if a settlement can be worked out.
Keep in mind, you can settle at any time during the lawsuit, even if your trial is already underway. Your case may have one, several, or many pre-trial conferences depending on the judge and the likelihood of reaching a settlement.
Once your case is called for trial, the first thing that happens is jury selection. The attorneys for both sides will go to a jury room to select six jurors and two alternates. The individuals selected are members of the community and will have, we hope, no pre-conceived ideas against you and your case.
In a jury trial, the factual issues are determined by the jury, not the judge. These will be the people who decide whether the defendant is responsible for your accident, the extent of your injuries, and the monetary award you are entitled to.
You, as the plaintiff, go first and produce the witnesses and evidence necessary to prove your case in accordance with the prevailing law.
Verdicts in New York Jury Trials
In New York City, many Courts try their cases in two parts, called a “bifurcated trial.” In the first part of a bifurcated trial, the Court only determines whether the defendant was responsible for your accident – no information about your damages is presented to the jury at this time.
Under New York State law, a defendant does not pay monetary damages unless first found responsible, at least in part, for the accident.
If the defendant is found responsible, we then go on to the second part of the trial. At this time, we present your damages and injuries to the jury, who will determine the compensation for your injuries, pain and suffering (past and future) and, if applicable, medical bills and lost earnings (past and future) based on the evidence you produce.
Evidence is testimony from you and your witnesses, doctors, and family, as well as documents such as medical and employment records. The defendants are allowed to rebut this evidence with testimony of their own doctors and other proof, such as proof of prior or subsequent accidents that you may have had regarding your claimed injuries.