Lawsuit: Why File It

A lawsuit in a personal injury case is a series of formal procedures which include most notably discovery, alternate dispute resolution, and trial.

There are several reasons why lawsuits may be necessary in a particular case. The first is that the parties disagree and cannot resolve the dispute through compromise. For example, if the dog owners insist that the victim provoked the dog to attack, and the victim insists that he did not, the issue of provocation might be so important to the case that it prevents compromise. In that event, the case will proceed through discovery and alternate dispute resolution, and will end up in trial, where a judge or jury will decide whether the victim provoked the dog.

There are several strategic reasons for filing a lawsuit:

  • To get information that we can’t get informally. For example, animal control officers and veterinarians sometimes do not permit us to look at their records without subpoenaing them. To subpoena them, we have to file a lawsuit first.
  • To take the deposition of an important witness. A deposition is a formal written statement that is taken under oath, in the presence of the parties and their attorneys. A deposition can be used in court as evidence. No other written statement can be used in court as evidence. Therefore, if the witness is very important, we sometimes file a lawsuit simply to take the deposition of that witness, to ensure that his testimony can be used later on.
  • To make an insurance company take notice. Sometimes the local insurance adjuster does a bad job of investigating the case, or places a dollar value on it that simply is unfair. We will file the lawsuit to force the insurance company to retain an attorney for the dog owner. Once an attorney is involved, the insurance company pays a greater degree of attention to the case.

Sometimes we file a lawsuit because the law requires it. Every state has a law that limits the amount of time in which an injured person can make a claim in court. If the victim fails to file in time, the insurance company for the dog owner is not required to pay any money to the victim. Therefore, even though we may not want to take a case to court, we sometimes have to file it because of this period of limitations. This is discussed in greater detail on the web site, in the article entitled Beware of the Statute of Limitations.

A lawsuit establishes a time frame for settlement. Almost all American states have Rules of Civil Procedure, court rules or customs that keep a lawsuit moving forward in a certain order. These differ, but California’s is typical and therefore will be used as an example, below.

In California, trial courts are obliged to set personal injury cases for trial in approximately 1 year from the time that they are filed. As a practical matter, cases are set for trial in about 18 months from the date of filing.

The trial date is significant because it establishes a timetable for processing the case, including settling it if it is possible to do so. The case has to be served on the defendants within 60 days of filing. Then they have 30 days to respond in court. After the filing of their response, both sides exchange written information over a period of about three months. Approximately 4 months after filing, there is an initial meeting with the judge and the attorneys, which usually is by telephone, in which the case often is set for mediation or some other method that facilitates settlement. If there is a true dispute in the case, the parties take depositions in the period which is about four to eight months after filing. At that point the case can be mediated, which frequently results in a settlement.

In the unusual case which is not resolved by mediation, there are additional procedures that are required. Specifically, each side retains and then takes depositions of expert witnesses, such as the plastic surgeon. These are frequently expensive to do because the experts charge a lot of money, and we often employ a special camera crew to videotape their depositions, so that the trial will be cheaper and a bit less risky. After taking the depositions of experts, there is another opportunity to settle the case. If it is not resolved at that point, then the parties must prepare for trial.