Although personal injury cases tend to differ in many ways, the cases share common elements which all parties involved i.e. the plaintiff (the person suing) and the defendant (the one being sued) can expect. This article will focus on major litigation landmarks & processes Gold Coast plaintiffs and defendants should expect to encounter from the start of the end of any personal injury case.
1. The plaintiff suffers an injury and hires a lawyer
This is the first step involved in any personal injury lawsuit. A person has to suffer injury for there to be a valid personal injury case. It is important to note that personal injury cases can’t pass the summary judgement stage if there is no substantial plaintiff injury proof. This is regardless of the damage extent or the uncertainty of the defendant’s liability.
After an injury has occurred and the damages surpass the claim court limit (approximately 4,600 Australian dollars), most plaintiffs seek the services of personal injury lawyers Gold Coast. The best plaintiff’s personal injury lawyers Gold Coast will allow the plaintiff to consult for free. If the plaintiff appears to have a case after initial consultation, the lawyer may agree to do an exploratory investigation to find out information like; if a defendant has sufficient assets and/or the applicable insurance.
If the investigation leads to a positive conclusion i.e. the plaintiff has a viable case, the lawyer will proceed by preparing and signing a fee agreement with the plaintiff. At this point, the lawyer will become the plaintiff’s official lawyer. It is important to note that the lawyer is free to decline the case and refer plaintiffs to other lawyer. The plaintiff can also decide to hire another lawyer. Regardless of the outcome, anything the plaintiff discloses to the lawyer is protected from disclosure under attorney-client privilege.
It is also worth noting that it’s not a must for a plaintiff to hire a lawyer. Due to the complex nature of litigation, such a decision isn’t wise especially if the stakes of the case are too high and a defendant has already hired his/her own lawyer. Considering most personal injury lawyers Gold Coast work on a contingency fee basis, hiring a lawyer is warranted.
2. A complaint is filled and served to the defendant
This is the next step to consider after the plaintiff has suffered injury and hired an attorney. If the case is legitimate and free of procedural hurdles, the plaintiff’s lawyer can proceed by filling a complaint. The complaint describes what the defendant is being accused of by the plaintiff. The plaintiff’s lawyer has approximately one month to find the defendant and serve him/her with the complaint. Complaints are usually accompanied by service papers which inform the defendant the day he/she has to appear in court.
3. The defendant gets a lawyer
The defendant has approximately one month to hire a lawyer before appearing in court for the first time. In cases where the defendant has the applicable insurance policy or assets, they shouldn’t have a problem hiring the best personal injury lawyer in Gold Coast. In cases where the defendant has insurance, he/she must notify their insurer as soon as possible. The insurer can then supply a lawyer or pay for the lawyer the defendant has chosen. It is important to note that defense lawyers don’t work on a contingency fee. If the defendant can’t afford to pay or they don’t have applicable insurance, the chances of an early settlement are very high.
4. Pre-Trial Litigation
In pre-trial processes, both sides request for evidence as well as witness information. This phase is known as discovery. Both sides may also be required to appear in court frequently to share the progress of the case with the presiding judge i.e. if both sides have agreed or disagreed on arbitration or mediation. The trial date is set during at this stage. The discovery process also involved scheduling deposition of witnesses and opposing parties. Depending on the complexity of the case, the discovery process can last for months to years.
If the discovery process goes on for too long, the defendant can request the judge to dismiss the case on summary judgement grounds since the plaintiff can’t possibly win the case at trial. It is worth noting that such motions rarely pass. As the case proceeds closer to trial, both parties ramp up their efforts by engaging in compulsory settlement conferences as well as making motions in an effort to determine the kind of evidence that is allowed at trial. The conferences are also aimed at selecting a jury.
This is the final step of any personal injury lawsuit. Typical trials for personal injury cases last for a few days. During trial, the jury or judge is charged with the responsibility of determining the defendant’s liability. The jury or judge can then proceed to determine how much money the defendant should pay as damages (if they are liable). After the trial process is over, either parties are free to initiate appeals depending on who has lost the case. Appeals can last for a few months to years. When the appeal process is over, a losing defendant has to pay for damages which are established at the trial or appeal stage.
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