It is sometimes necessary to litigate your case (filing a lawsuit to use the court procedures to resolve a dispute) if the insurance company will not make an acceptable settlement offer. We have a fully staffed litigation department and regularly argue cases before a judge on behalf of our clients.

Below is a brief description of the litigation process. Please remember, the litigation process requires that you invest a significant amount of time. In deciding if you wish to litigate the case please keep in mind that the entire process will take a minimum of six months and can take up to two years or more before final resolution. Your involvement with your case becomes significantly greater while in litigation as you will be called upon to complete discovery papers, attend client/attorney meetings in our office, attend deposition(s), attend the arbitration hearing and sometimes even a lengthy trial. This proviso is presented, not to dissuade you from considering litigation, but to inform you of the time involved with the process.

A lawsuit starts with a paper called a Complaint. In the Complaint, you will be the “Plaintiff” because you are bringing the lawsuit. The lawsuit will be against the “Defendant” which is the individual or company who caused your injury. The lawsuit is not against the insurance company, although the insurance company is obligated to hire an attorney to represent the defendant and to pay any award.

SERVING THE LAWSUIT

After the Complaint is filed with the court, we must deliver it to the defendant. This is called “service of process” or “serving the lawsuit.” Service is accomplished by special agents of the court called process servers. If the defendant has moved and cannot be located, we will hire a private investigator to find him/her. If our private investigator is unsuccessful, we may serve the lawsuit by publishing it in the local newspaper for four consecutive weeks.

DISCOVERY

Discovery is a legal term which means the investigation lawyers do to get ready for trial. The defense attorneys will investigate you and we will investigate the defendants and their defenses. By bringing a lawsuit for personal injuries, the courts have ruled that you waive certain privacy rights because the defendant is entitled to investigate your background. There are four discovery methods used most often, including:

1) Disclosure Statements

2) Interrogatories

3) Depositions

4) Independent Medical Examinations

1. Disclosure Statements

Forty days after the defendant files an Answer to our Complaint, we are required to file a Disclosure Statement. The Disclosure Statement summarizes our case. Specifically, we must state the factual and legal basis for our claim, identify our potential witnesses, as well as any other individuals who may have relevant knowledge, identify any statements that have been taken, identify experts we intend to use at trial, detail the damages that we are claiming and identify all exhibits and other relevant documents that may be used at trial. Based on the information in your file, we will prepare a draft Disclosure Statement, but you will need to carefully review the Disclosure Statement and verify under oath that it is true and accurate.

2. Interrogatories

Interrogatories are written questions that you will be required to answer under oath. These written questions will cover how the accident occurred, your medical treatment, wage loss, and other damages. The interrogatories will also cover your background, such as residential history, marital status, employment history, your income tax returns and your medical history.At a pre-litigation meeting, you may receive a draft set of interrogatories to begin answering. It is important that you answer these questions as completely as possible. We will use your draft answers, as well as other information from your file to prepare the final typewritten answers to interrogatories. You will have to review these final answers and verify under oath that they are correct. We then send your answers to the defendant’s attorney. We may also send the defendant interrogatories to answer.

3. Depositions

The defendants have a right to interview you under oath in a procedure called a deposition. If the defendant wishes to take your deposition, we will have several weeks notice of the time and date of the deposition. Before the deposition, you will have another meeting with your attorney to go over the procedures and ground rules of depositions and to review your testimony. Your attorney will attend your deposition with you. At the deposition, the defense lawyer will interview you to hear what your testimony would be like if the matter goes to trial. Additionally, because the deposition can be read to the jury or arbitrator, the defense attorney will attempt to see if you testify to something that is untrue so that he can argue that you are lying. The defense attorney will also be making an assessment of your ability as a witness.  In addition to the parties to a lawsuit, other witnesses who may testify at trial can be deposed, including witnesses to the accident, your doctors, the investigating police officer, and accident reconstructionist, your spouse or your employer.

4. Independent Medical Examination

The defendants have a right to have you examined by a doctor of their choice to confirm the nature and existence of your injuries. Like the deposition, if such an examination is scheduled, we will give you several weeks notice. Unlike the deposition, however, the attorneys cannot attend the independent medical exam. Rather, you must attend on your own. However, we will get a copy of their report and forward it to you for review.

TRIAL

In Maricopa County, Arizona, there are two ways of resolving lawsuits. One is a traditional jury trial. At trial, each side presents witnesses and exhibits to prove their case. The jury determines who is at fault for the accident and your total money damages after consideration of your medical bills, wage loss and pain and suffering. The trial itself can last from two or three days to several weeks. It usually takes about 12 months from the date of filing a lawsuit until the time of trial.

ARBITRATION

In Maricopa County, an alternative to a jury trial is arbitration. In an arbitration, a lawyer, called an arbitrator, is selected to act as judge and jury. He conducts an informal hearing, which is a mini-trial. The arbitration rules allow the hearing be conducted in a day or sometimes a few hours.  Additionally, we can get an arbitration date quicker than we can get a trial date. The only disadvantage of an arbitration is that the maximum the arbitrator can award in Maricopa County is $50,000. However, in small cases, we strongly recommend arbitration as a more efficient and cost-effective method of resolving your case. Your attorney will discuss with you in greater detail the advantages and disadvantages of arbitration.

FEES AND COSTS

Under your fee agreement, attorneys’ fees increase to one-third of the final recovery once a lawsuit is filed. However, in addition to attorneys’ fees, you are ultimately responsible for costs incurred by the firm in pursuing the claim, regardless of the result. Once a lawsuit is filed, costs can increase. For example, lawsuit filing fee - $245.00; serving the lawsuit - average around $100.00; court reporter costs per deposition - average $150.00 to $300.00; and expert witness fees $100 to $500 per hour, depending upon the specialty of the witness. If the matter is resolved, these amounts will come directly from your settlement before you receive your final check.

SETTLEMENT

Just because we may be filing a lawsuit does not mean your case will not settle. In fact, many cases settle before trial. Because the litigation process is slow and costly, it is usually in the best interest of our client, as well as the insurance company, to settle the case as early as possible in the litigation process.