Personal injury cases can arise in a variety of circumstances, whether you have been involved in a car accident, a slip and fall, an assault, etc. While many law firms categorize themselves as “PI firms,” the reality is that each PI case has different procedural and substantive issues that require experience and foresight. For example, in a motor vehicle case where the injured plaintiff is subject to the limitation of lawsuit option on their insurance policy, one must obtain a Certification of Permanency from a treating doctor in order to pursue the case. In a case against a public entity in New Jersey, the entity must be provided with notice of the claim within 90 days otherwise the claim can be time-barred.
You must hire an experienced personal injury attorney as soon as possible after an incident. Your attorney will gather information about the incident, your injuries, any economic losses, your medical providers, witnesses, and potentially culpable parties. Using this information, your attorney will obtain incident/police reports and medical records, contact witnesses, obtain information about medical liens, and notify the potential parties/witnesses of the claim in order to preserve your right to sue and assure preservation of the evidence.
Once the attorney has gathered sufficient information to evaluate your claim, he or she will usually contact the insurance company, if any, to discuss the matter. It is during this time that the attorney will get a first impression as to how the culpable parties value the case. Once the attorney understands that, you should have an informed discussion with your attorney to determine the pros and cons of pursuing litigation, the potential time and expenses that will be incurred in litigation, and the anticipated value of the case. Litigation can be an arduous, stressful and costly experience, so clients need to know all of these things before deciding to pursue a personal injury case.
Personal injury litigation in New Jersey begins with the filing and service of a civil complaint. The defendants then have 35 days after service to file an answer. Upon the filing of the answer, the discovery period officially begins and can last anywhere from 300 to 450 days depending on the type of case. The first step in the discovery process is the written discovery phase in which the parties serve written demands upon each other requesting certain documents and responses to questions known as interrogatories. Once written discovery is exchanged, the parties proceed with witness depositions which are question and answer sessions given under penalty of perjury. Depending on the case, the parties will then serve one or more expert reports and conduct expert depositions, if necessary. The discovery phase often includes motion practice to compel discovery, extend the discovery end date and obtain more sufficient discovery responses. Once discovery is complete, parties frequently file dispositive motions seeking dismissal of some or all the claims. It is imperative that your attorney has the foresight to anticipate these motions and obtains sufficient information in discovery to defeat them.
At any given time, the parties can try to settle the case or they can submit it to alternate dispute resolution, such as mediation or arbitration. Automobile cases in New Jersey are submitted to mandatory arbitration which can become binding if neither party vacates the award within 30 days. In other PI cases, the courts will appoint a mediator and require the parties to attempt mediation before trial. Judges may also assist with scheduling settlement conferences, especially as a trial date approaches.
Your personal injury attorney must be experienced and capable at trial. Telling your story and introducing the evidence to a jury is as much an art form as it is a science. Ideally, your attorney establishes him or herself as trustworthy and can command the attention of the jurors. However, the one thing you can be sure of at trial is that trial is always unpredictable. While you may focus on what you believe are the major strengths of the case, jurors can get fixated on issues that you did not anticipate. Evidence can be adduced at trial that you did not expect. So you should be wary of any attorney who overpromises.
This unpredictability and the significant economic cost of going to trial must always be explained to a client so they can make the informed decision as to whether they wish to settle or proceed to trial. After all, this decision always belongs to the client and it is the attorney’s job to provide sufficient information for the client to make an informed choice.
Craig Rothenberg, Esq. is an experienced litigator in New Jersey and has developed a reputation for high-quality legal and trial work.