What Does it Mean to Have a Personal Injury Lawsuit?
First, a vast majority of personal injury cases result in settlement prior to a lawsuit ever being filed. Even in situations where lawsuits are filed, commonly those personal injury lawsuits settle sometime after the lawsuit commences. There are several factors that impact whether or not a personal injury lawsuit needs to be filed. We will discuss some important aspects below.
Valid Personal Injury Claim
The first thing that a person needs is a valid personal injury claim. This means that a potential plaintiff will need to be able to establish all elements of a valid legal injury claim. An example of a valid legal injury claim would be a claim for negligence in an automobile accident case.
Statute of Limitations
The statute of limitations refers to the amount of time that a claimant has to file a lawsuit in Georgia. The statute of limitations may vary in some situations but typically the statute of limitations on most personal injury matters is 2 years, accruing from the date of the accident or negligent act. A loss of consortium claim may be brought within 4 years of accrual of the action.
Any victim of childhood sexual abuse bringing a personal injury lawsuit that bases a defendant's conduct on: rape, sodomy or aggravated sodomy, statutory rape, child molestation or aggravated child molestation, enticing a child for indecent purpose, pandering, solicitation of sodomy, incest, sexual battery, or aggravated sexual battery has until the childhood victim's 23rd birthday to file a lawsuit.
Once it has been determined that an injured victim has a valid injury claim and that person is still within the statute of limitations to file, the next big step is to file a Complaint or lawsuit. The important components of any personal injury lawsuit necessarily contain all claims for liability and damages that relate to the defendant(s)' conduct.
A personal injury lawsuit should contain all claims for specific conduct that caused a plaintiff's injuries. Each liability claim has specific elements by law. To survive a legal challenge, a good claim needs to have each and every element of a liability claim in the lawsuit itself. For instance, a claim for negligence in an automobile case may resemble the following:
1. John Doe was a passenger in a black Pinto on I-75 northbound.
2. Jack Doe was a driving a red Hummer on I-75 northbound behind John Doe.
3. Jack Doe was driving at an excessive speed and lost control of his vehicle while driving I-75 northbound behind plaintiff.
4. As a result of Jack Doe's action, his car collided with plaintiff's car.
5. Jack Doe owed plaintiff a duty to exercise reasonable care in the operation of his motor vehicle.
6. Jack Doe breached his duty of care to plaintiff.
7. Jack Doe was negligent per se for violating Georgia law.
The above example gives a succinct description of the factual basis of plaintiff, John Doe's claim, and provides the legal basis for his claim.
A lawsuit needs to allege damages as well. In the above example of John Doe, we provide a description of the accident itself, but there are no allegations that John Doe suffered any injuries, medical bills, or pain and suffering that would entitled him to relief. To complete his claim, John Doe's lawsuit may state the following:
8. Plaintiff herein restates the allegations in paragraphs 1-7
9. As a result of the collision caused by Jack Doe's actions, plaintiff suffered personal injury and medical expenses.
10. Also as a result of the collision caused by Jack Doe's actions, plaintiff suffered pain and suffering, emotional distress, and lost wages.
Ultimately, the complaint will conclude to ask for a specific request for relief by a jury trial, if one is requested. Nonetheless, John Doe, has provided two of the most essential components of his lawsuit in the above example: liability and damages. It is important to know that a skilled and seasoned attorney understands that a lawsuit also must contain allegations supporting venue and jurisdiction as well.
Summons/Service of Process
Once a lawsuit has been drafted, the lawsuit needs to be filed. In nearly every county in Georgia now lawsuits are filed electronically. Once the lawsuit has been received and stamped in the respective clerk's office, a filed stamped summons will follow.
In some counties in Georgia, civil process servers must be appointed by motion to the court in order to serve a lawsuit and summons. In other courts, civil process servers can apply and get approved under what is referred to commonly as a standing order that would allow them to serve process in that county without having to motion the court each they time they have a defendant to serve a lawsuit and summons.
Keep in mind, for defendants that are being served in the same county that a suit is being filed, entry of the sheriff to serve the summons and lawsuit is still the preferred method to serve a lawsuit and summons. Either way, Georgia law requires that a lawsuit and summons is served on a civil defendant by a certified civil process server or by the local sheriff.
After the lawsuit is served on the defendant, he/she has 30 days from the day that service is received to respond to the allegations. A defendant who has not responded within to a Complaint within 30 days of receipt of service of process is considered to be in default.
After a civil defendant has been served with a lawsuit, the lawsuit has officially begun. The discovery phase automatically begins essentially. Discovery is a phase where the parties are entitled to request written and oral information and testimony regarding the case. During the discovery phase, a plaintiff can seek depositions of the defendant, other eyewitnesses, medical witnesses, and witnesses supporting her claim. The plaintiff will also usually be deposed. The rules of discovery are very complex.
Discovery is a very, very important phase of a lawsuit. Discovery is where a plaintiff can find more evidence to support his/her case. It can also be a time where a defendant can find evidence to weaken the plaintiff's case. Discovery should be approached be seriously and professionally. One of the most important rules of discovery to remember is to avoid engaging in any violations of discovery. A judge can impose harsh sanctions, including dismissing a plaintiff's lawsuit for violating discovery rules. Similarly, it is important to hold the opposing side accountable to provide every piece of information that may be useful to a client's case.
Lawsuits that do not result in settlement naturally go to trial. In bigger counties in Georgia, most personal injury lawsuits are filed in State Court because there are no felony criminal cases and custody cases that take precedence over them. Most counties in Georgia do not have a State Court and their personal injury cases are all filed in Superior Court. Superior Court personal injury jury trials are always heard by 12 jurors. Many State Court personal injury jury trials are heard by 12 jurors although there can be an election for 6.
The role of the judge is to be neutral and to serve as a referee at the trial. The judge also has the primary role of being the caretaker of the jury.
The conduct of the trial is such that the plaintiff has to prove his/her case to the jury on liability and damages by preponderance of evidence. There is an opening statement of both parties, followed by plaintiff presenting all of his/her witnesses, subject to cross examination, then the defense presenting each of their witnesses, subject to cross examination, with the trial culminating in closing statements and deliberations before a jury verdict.
We Are Personal Injury Trial Lawyers
Lawson Law Firm is a personal injury law firm in Lawrenceville Georgia. We are trial lawyers. We believe in the litigation process and we believe that the jury process is the ultimate means to seek justice for our justice. We are excited about the opportunity to speak to you about your personal injury law needs, today.