Litigation Process (Poor Thing vs. Careless)
Legal Disclaimer: This book and chapter is not to be used as legal advice. This is just a basic guideline, and each case may go through different or specific steps. In fact, certain steps and details in this chapter are also specifically written in a way that anyone without any legal background can understand.
What is Litigation?
Litigation is a legal process that involves the court system to enforce or defend someone’s legal rights and supervise the process known as Legal Proceedings. As a Plaintiff, you have the right to sue someone. As a Defendant, you have the right to defend yourself in court.
When is the right time to file a lawsuit?
There are multiple factors that may force your attorney to file a lawsuit. These factors are:
•Insurance companies are lowballing on Settlement Offers and refusing to do an ADR (Alternative Dispute Resolutions) such as Arbitration or Mediation.
•In most cases, if a Plaintiff undergoes some kind of surgical procedure and the policy limits are at least $50, 000, this puts more pressure on insurance companies to offer the full policy limits to avoid any court fees.
•There is a dispute in liability
•You’re threatening the attorney that you will leave to another attorney so the attorney may file a lawsuit without even asking you to preserve some right to any attorney fees. Only shady attorneys do this.
Costs associated with Litigation (New York State):
Note: All attorneys in New York State charge the same for personal injury matters. The attorney fee is 33.33% plus expenses.
Litigation expenses:
Filing a lawsuit in New York has various state fees, but that doesn’t stop there. There are various other fees that will be associated with the entire litigation process. These fees are:
Filing the Summons and Verified Complaint: $210.00
Filing the Summons and Verified Complaint or (S&C) is what initiates the lawsuit, and this is when the court assigns a dedicated index number.
Sending out for Processing: (Depends but can be hundreds of dollars)
After a lawsuit is filed, the defendant(s) have to be served by licensed Process Servers. Depending on where the defendant is and how many defendants there are, it could cost hundreds and even thousands of dollars.
RJI, Motions, and other filing fees:
Throughout litigation, there will be various fees associated with various legal proceedings, such as motions, depositions, and other filing fees. The most common Fees are:
RJI (Request for Judicial Intervention): $95.00
Motion or Cross-Motion: $45.00
Demand for Jury Trial: $65.00
Stipulation of Settlement: $35.00
Deposition + Court Reporter: Typically, $350 but could be more or less.
Miscellaneous Fees: Various smaller fees may include such as mailing, subpoenas, medical record requests, which are usually $0.75 per page.
Steps in Litigation:
This is a rudimentary explanation of how litigation works. There could be other steps in between, but for the most part, these are the basic steps. Keep in mind that it takes years for a case to be litigated until the actual trial date. Mainly because the courts are backed up.
Step 1.) File Summons and Verified Complaint (S&C)
Summons and Verified Complaint or Summons and Complaint for short is drafted and then usually filed electronically. Once filed, an index number is assigned to your case.
Step 2.) Serve the Complaint by Licensed Process Server
Once the complaint is drafted, the S&C must be served to all defendants by a licensed process server. Once the complaint is served, the Process Server will file something called Affidavit of Service. An attorney will need that paper and the exact date of service because the defendant will have 30 days to file an answer or be at risk of being in Default. If a Default is granted, the defendant will be forced to fork out the full and complete demand that the Plaintiff has initially demanded.
Step 3.) Discovery Stage
Once the defendant is served with the complaint, the defendant’s insurance company’s attorneys file an answer and make initial demands for discovery.
To be more specific, the defendant’s attorneys demand something, which is called Bill of Particulars or (BPs / BOPs) as well as Combined Demands.
In the BPs and Combined Demands, the defendant will request:
•Police Report
•Any video and photographs, if available
•Ambulance Report
•Hospital Records
•Other Medical Records and Authorization
•Various other things
Pro Tip: If the defendant is running out of time or ran out of time to file an answer (30 days in New York State), the defense can request a stipulation to extend time to file an answer. It is good or standard practice to not annoy the defense this early in the stage of litigation, and I generally grant them an extension without any arguments. However, I do require that they must “Waive Jurisdictional Defense.”
Waiving Jurisdictional Defense has many repercussions. I will let you Google experts do your own research on this matter, but this puts a huge wrench in the defendant’s defense, and many defendants refuse to Waive their Jurisdictional Defense. If the defendants refuse to Waive the Jurisdictional Defense, we’re not extending their Stipulation to Extend time to answer. That means they have to scramble in hiring an attorney and filing an answer ASAP, or we will eventually file a Default Motion if they don’t file an answer in time.
Note: For the most part, the defendants can vacate the default motion very easily, but it creates mini chaos in the firm and with the carrier. I always enjoyed stirring the pot.
Step 4.) Drafting and serving the BPs as well as Combined Demands and filing the RJI (Request for Judicial Intervention).
Drafting BPs and complying to combined demands can be a routine, but there is a lot of information that the Plaintiff’s attorney may try to object to. The list can be extensive and varied case by case, but as an example, we don’t provide Social Security Numbers in BPs or even Depositions because most case pleadings such as motions and BPs in New York that are in litigation can be accessed via eCourts, which is an online system that everyone has access to.
Step 4.5.) Making our own demands
With the BPs as well as complying to combined demands, we also make our own demands. We generally request similar information such as available policies, photographs, witness information, and so forth. Anything that is important to the case.
Step 4.75.) Filing for RJI (Request for Judicial Intervention)
When the BPs are drafted and served, an RJI is filed as well. RJI basically puts the case on the court calendar and gets the judge assigned.
Step 5.) Preliminary Conference
On the preliminary, few things happen:
1. Confirm on Discovery (Evidence) Demands
2. Schedule Deadlines for Discovery, Depositions, IMEs and Motions. Essentially create Standards and Goals. This is when you will have SOME KIND of an idea or a rough estimate (give or take a few years) on how long it will take to litigate the case before the case is finally certified for trial.
Step 6.) Depositions and Liability IMEs
Depositions are self-explanatory. But based on what you testify to on what you injured, the adverse carrier will demand you go for Liability IMEs. Similar to NF IMEs, but could be thorough.
Pro Tip: If the defendant does not appear for depositions, it is best practice to file a motion to preclude the defendant from testifying, and in that motion, it should also preclude from any future filings of any kind of affidavits. If there are any liability issues and the defendant can’t say his side of the story, then they’re screwed.
Pro Tip: If the liability is clear and there are no disputes on liability and there is compelling evidence that will not raise any Question of Fact, it is good practice to file a Plaintiff’s Motion for Summary Judgment (MSJ) on Liability. A motion for Summary Judgment on Liability is a motion that asks the court to decide and issue a Summary Judgment on Liability. What that does:
1. From the date that motion is granted, an interest starts accruing. In New York State, that’s 9% every year. This interest applies to verdicts. If the verdict is $100, 000, the plaintiff will receive $109, 000.
2. The plaintiff will be precluded from testifying on liability during deposition and trial. From the issuance of the Summary Judgment for Liability, all future discovery and testimonies can only be on Damages only.
This puts immense pressure on the defense to settle early as well.
Step 7.) Threshold Motion Time!
If you have a shit car accident case that is in litigation, chances are that the adverse carrier will file a Threshold Motion in an attempt to dismiss the entire case. After all discovery is exchanged, depositions complete, and IMEs done, this is their opportunity to do so. If you have at least one of these factors that are mentioned here, you are at high risk of getting the entire case dismissed:
•You have pre-existing condition(s) due to prior accidents or chronic condition
•You have degenerative findings. Example: Multi-level bulges and Herniations, Scoliosis, and/or you’re old.
•Didn’t treat more than 90 days. More Specifically, no significant limitations that lasted longer than 90 days.
•Your MRIs show minor injuries. Example: One bulge or herniation.
•Minimal Impact Cases. If your vehicle only has a few scratches or a slight dent, the adverse carrier will claim that the injuries are not causally related to the accident because the impact was too minimal to create any kind of injuries.
Note: This argument is a hit or miss because there are ways of arguing around this issue.
Step 8.) Compliance Conference
The compliance conference is a quick conference with the adverse party in front of the judge to confirm that all discovery has been exchanged, and this is when the judge gives a deadline to file something called Note of Issue. Note of Issue certifies the case for trial.
Step 9.) Filing Note of Issue
After you file the Note of Issue, two major things will happen. The case goes on the actual trial calendar, and the judge may try to convince the defendant to settle the case during mediation or arbitration. For the most part, a lot of these proceedings are handled by per-diem attorneys. Per-diem attorneys do not handle the case at any level. The per-diem attorneys are hired just to show up and generally have no authority to settle or make any serious decisions. It’s usually not until JCP (Jury Coordinating Part) or jury selection when an actual handling attorney who has any kind of authority may offer some sort of settlement. On the flip side, I try to use this opportunity to put more pressure on the examiner to settle before we go to trial because once we get to trial, we are fully committed to getting a verdict.
Step 10.) Trial
It’s everyone’s guess on what will happen during a trial. Since I generally do not get involved in trials, I will not get into details. If you have any specific questions regarding trial process, I strongly suggest you see an actual attorney.
General Disclaimer:
This is a basic outline of how the settlement negotiations are performed. There are thousands of different variables as well as possible steps and factors that go into different types of cases. Many details will be missing or vague. If you have a specific question regarding a particular case, it is highly advisable to discuss that matter with an actual attorney. This is not a rule book or meant as legal advice or instruction manual—just a basic outline.