This is usually a question I get from every client. Most clients ask this question hoping that my reply will contain a specific and short period of time. The answer always will have to be “it depends.” However, it almost never is a quick process. It almost always is going to depend on a number of factors, including the specific injuries suffered by the client, and his or her treatment, court scheduling and the particular issues in the case. The general process is usually the same:
INVESTIGATION: Any car accident case should be extensively investigated before the case is every filed. This includes obtaining all medical records regarding the client’s injuries and relevant medical history. The medical records will establish the basis of your medical damages. The investigation will also establish the liability of the parties to the car accident. In other words, which driver was at fault? If both drivers were partially at fault, which driver was more than 50% at fault? This includes questioning witnesses, examining the reports and statements, and hiring experts to review the facts of the accident. All of this evidence must be compiled to present at the trial of the case.
DEMAND: After the investigation is complete, and after the client has reached MMI, or maximum medical improvement, a demand is usually submitted to the other driver’s insurance company. This will include all of the relevant medical records and medical bills to establish damages, and should also include any other documents establishing other damages, such as lost wages, future lost wages, pain and suffering and other expenses. Sometimes cases are settled prior to filing a lawsuit. Sometimes however, the parties are unable to agree on liability or amount of damages, and the Complaint must be filed.
FILING: The lawsuit, called the Complaint, is drafted and filed by your attorney in the appropriate West Virginia Circuit Court. Once the case is filed, the other party is summoned to file an Answer. The other party’s insurer will have either a private law firm, or their own employees who are attorneys (in effect many insurance companies, such as Nationwide or State Farm, have their own law firms in West Virginia, but they call them “employees”) file an Answer to the Complaint. The Court will then file a Scheduling Order (the parties do have some say in the general dates used by the court) establishing the discovery deadlines and then the trial dates.
DISCOVERY: Discovery is the fact-finding process by which attorneys for plaintiffs and defendants formally investigate the claims and defenses of the case. This will include written discovery, such as interrogatories (written questions), requests to produce documents and/or things, and requests to admit certain facts. The various parties must answer all these forms of written discovery under oath. Discovery also includes depositions. Depositions are formal proceedings in which parties and/or witnesses are sworn under oath and the attorneys involved in the case are given an opportunity to question the witness. These proceedings are always recorded by a court reporter that will prepare a written transcript of the questions and answers. This transcript can be used at trial in different ways depending upon the particular state rules. In every court, the transcript can be used to “impeach” a witness if he or she gives a different answer at trial than in their deposition.
MEDIATION: Either by court order, or by agreement, the parties may agree to mediate the case at some point before trial. Mediation is an informal process where both sides meet with a mediator, a neutral person, usually an attorney. The mediator works with the parties to try to reach an out-of-court settlement. If successful, the case ends at this stage. Of course, the parties can agree to a settlement without the need for mediation, although in West Virginia car accident cases, mediation is a common means of resolving meritorious cases.
TRIAL: If the parties cannot agree to a settlement prior to the trial date, the case will be tried, almost always to a jury. The number of jurors in West Virginia car accident cases is 6. Other states use either 6, 9 or 12. The jurors must be unanimous in their verdict. The jury’s job is to decide issues of fact. The judge will decide issues of law. The trial will proceed through the steps of jury selection, opening statement, plaintiff’s case, defendant’s case, rebuttal, closing arguments, jury instruction and jury deliberations. Once the jury reaches a verdict, the judge will, in most cases, enter that verdict as a judgment. Either party may file post-trial motions challenging the verdict. Once the judge has ruled on these motions, the judgment is final. Once the judgment is final, either party may appeal the decision for any one of numerous reasons. However, most successful appeals are based upon assertions that the judge has made an error in a legal ruling, not simply that the jury’s decision was wrong.
The entire process, from beginning to end, can take several years and cost thousands of dollars. Because of this, an experienced lawyer will carefully screen cases, proceeding only on cases that he believes are supported by the facts and the law.
– John H. Bryan, West Virginia Car Accident Attorney