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Robert S. Duxstad
Daniel P. Bestul
Lance A. McNaughton

ANATOMY OF A PERSONAL INJURY CASE, PART TWO: A brief guide for someone who is injured by another party

Posted: 8.14.2018  |  Author: 


People are injured every day in accidents, frequently through no fault of their own. What should those persons expect if they decide to pursue a personal injury claim.This article will address what you might expect after a lawsuit is filed through the date the trial begins.




Once a lawsuit is filed, the parties begin what is commonly referred to as “Discovery”.Discovery can take various forms, but in most cases, the parties will initially serve the other party with a “Interrogatories and Request for Production of Documents”.Interrogatories are a series of questions which must be answered within 30 days under oath.The questions most frequently asked of the injured parties relate to how the accident happened and the nature of their injuries.Other questions will request information about the parties’ education, work history, prior medical history, prior accidents, prior claims or lawsuits.Most recently, defense attorneys will ask questions about the plaintiff’s use of social media.Request for Production of Documents also must be responded to within 30 days.A plaintiff is frequently requested to provide copies of any photographs of the accident or their injury, their medical records and bills, and wage information and taxes.In addition, the plaintiff is usually asked to sign medical releases and employment releases.


As a plaintiff’s attorney, I will frequently send out interrogatories and requests for production of documents to obtain a copy of all insurance policies, photographs and evidence that may be in the defendant’s possession, and other information that will be helpful in proving the case at trial.


Another form of discovery is a Request for Admission (RFA).In a RFA, a party asks the other party to admit certain facts to be true.If the RFA is not denied within 30 days, the fact is then admitted as evidence.An RFA is frequently used to have medical bills admitted into evidence with testimony from medical personnel to establish the reasonableness and necessity of the medical expense.The danger to a party in denying an RFA is that if the fact is later proven at trial, the party that denied the allegation is not required to pay for the expense incurred in proving the fact that was denied.


The deposition is another form of Discovery that permits an attorney to question a party or witness under oath.A deposition is held usually held in the attorney’s office before a court reporter.The purpose of a deposition is not only to discover what a witness may say later at trial, but also to have a witness commit to certain facts under oath.If at trial, the witness varies from their deposition testimony, they can be impeached by having the jury hear the prior inconsistent statements given by the witness at the deposition.Depositions allow the attorneys to size up how well a jury may view a witness, and are often critical to the future outcome of the case.


In Wisconsin, broad latitude is given at the discovery stage, such that questions can be asked that may not be admissible at trial.The standard is whether or not the information being sought is reasonably calculated to lead to the discovery of admissible evidence.Objections can be made if the information that is sought is privileged, though a plaintiff gives up some of their doctor/patient privileges to the extent their health is at issue in the case.Objections can also be made if the discovery may be too burdensome to answer.




Once the parties feel they have sufficient information to assess the merits of the case, it is not unusual for both sides to attempt further negotiation of a settlement.However, after a case is filed, negotiations usual take place in the form of mediation.Mediation is a non-binding process where the parties meet with a mediator, who is usually a lawyer or retired judge, to see if they can reach a settlement.The mediator’s fees are usually split between the parties.Statements made in mediation to the mediator are confidential and cannot be used later at trial.The major benefit of mediation is that a party has the final say as to whether or not the settlement amount is satisfactory.It is an informal process where offers are exchanged with the other side through the mediator.Mediation can save the litigants the extra costs of having experts testify at trial, as well as other expenses associated with a trial.A party may receive more in a mediated settlement than if they were to actually try the case.A successful mediation avoids the stress of going to trial and gives the party a sure result.On the other hand, one also should expect to make some compromises in mediation.A truly successful mediation is usually one where both parties feel that they didn’t get everything they wanted.


Another way of settling a case without going to trial is to agree to have the case decided by an arbitrator.Some types of disputes require arbitration rather than permit the parties to have a trial.While a person who is injured in the typical car accident has the right to a jury trial, if they have a dispute with their own insurance company relating to the accident, they may be forced to resolve that part of the dispute with arbitration.In arbitration, the parties either select one or three arbitrators to hear the case.The process is usually more formal than mediation, and testimony and other evidence is usually submitted in one form or another.After the evidence is presented, the arbitrator(s) decide the matter.The arbitrator(s) decision is binding on the parties and cannot be appealed to the court unless the arbitrator exceeded their authority.The parties also pay for the costs of the arbitration.




At some point before trial, the parties will frequently file pretrial motions for a variety of reasons.A motion to dismiss is filed when a party believes that the complaint has not properly stated a legal claim upon which the other party can prevail.Similarly, a motion for summary judgment may be filed on the basis that the undisputed facts require a certain legal finding.Motions for summary judgment are decided on the basis of affidavits submitted by the parties, frequently citing answers given in deposition.One example of a motion for summary judgment is the situation where a claim was filed beyond the applicable statute of limitation.In such an instance an affidavit would be filed indicating the facts that give rise to the claim.If it can be shown that the lawsuit was filed outside the statute of limitations, the court is likely to grant the motion for summary judgement and no trial would ever be held on the merits of the claim.


There can be other pretrial motions that are filed.If a party has not timely or properly responded to discovery requests, a party can file a motion to compel answers or compliance with the discovery.In egregious situations, non-compliance with discovery can lead to dismissal of the case.A party may also file a motion in limine, which is a request of the court to keep out certain evidence at a trial.By filing a motion in limine, a party can avoid having damaging irrelevant or non-material evidence being heard by a jury.It can keep the court and the jurors focused on the real issues to be decided at trial.




Approximately 120 days after a lawsuit is filed, the court will hold a scheduling conference.The purpose of the scheduling conference is to set deadlines in which pleadings are to be amended, motions are to be filed, cut-off dates for completion of discovery, the dates when the parties have to name their lay and expert witnesses by the parties, and the setting of further status conferences or the trial.The scheduling conference is used by the court to manage its calendar and also to make sure that cases move forward to a conclusion.


The court will hold additional status conferences and motion hearings dependent on the case.Almost all courts will hold a final pretrial conference within a month of the trial date to make additional decisions relating to the conduct of the trial.Frequently by the time of the final pretrial conference, the motions in limine are decided, jury instructions and special verdicts are filed and trial exhibits are marked so the case is ready to proceed to trial.




It’s a long process, but eventually the case that is not settled is tried to the judge or jury. The time between the filing of a lawsuit and the actual trial date can range from one year to three years in the typical case, and in complicated lawsuits even longer. Roughly 95% of all cases that are filed do not go to trial.Instead they settle sometime between the initial filing of the case and before testimony is taken.Most personal injury cases that go to trial are decided by a jury, The process of the jury trial will be addressed in the Third Part of this series on the ANATOMY OF A PERSONAL INJURY CASE.




Robert S. Duxstad's practice includes representation for personal injury and civil litigation, as well as criminal and traffic law, in both Green and Lafayette Counties in Wisconsin. He can be reached by e-mail at duxstad@duxstadlaw.com.






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