Personal Injury Discovery, Arbitration and Settlement Overview
FAQ Video Transcription
Clients undoubtedly asks, “When can I get my case settled and how much is it worth?” It’s usually after the first meeting after I determine they have a meritorious case. I would tell them that we really don’t want to discuss settlement until you’ve finished your medical treatment, we find out from your doctor and probably a medical expert hired on your behalf what is the extent and nature of your injuries to what extent they are permanent. How are you limited, so that we can have a reasonable basis in determining your damages. Then before filing suit, assuming its within the period of statute of limitations, we would attempt to get your case settled and submit a complete package of all your medicals, any economic loss, any workers’ compensation, loss of quality of life, anything that would bare upon your claim. If we’re successful at that time, terrific. If not, we’ll proceed to suit.
So in New Jersey, client would then ask me, “So when is the trial to my case, what’s going to happen.?” So, I can answer that generally. We file suit in Superior Court. After the defendant is served by the complaint and summons, they have thirty five days to answer. After the defense has filed their answer, both sides exchange what are called interrogatory, those are written questions, some are form questions approved by the court, automobile and slip and fall type cases. Others are questions that we draft with the specifics of a particular case in mind. At least ten supplemental questions, these are answered over the next month and a half or two. Both sides exchange their answers, exchange pertinent documents and then we move to what is called the deposition phase. That is, if you’re the injured party, you’re asked questions under oath by defense counsel and similarly I have the right to ask questions and will at a deposition of the owner of the negligently maintained property, or the general contractor or subcontractor responsible for your accident. These depositions are conducted in my office or the office of the defense counsel, taken testimony down by the court reported present.
In New Jersey most civil cases after three hundred days from the answer discovery is completed, but quite frequently in the majority of cases, additional time, sixty, ninety days, a hundred twenty days is needed to further complete discovery where experts are involved. Their reports are issued, their depositions are taken. So who are your experts? It can be various. Usually in a slip and fall type case or industrial accident case, I will have at least one engineering expert. It may be various disciplines of engineering, such as a metallurgist and a mechanical engineer on my side to represent our position. The testimony of the medical expert. The testimony of the economist. So additional time is needed for that. When both sides agree that the discovery is complete with the courts permission, having extended discovery, we have what is called a discovery end date, and after the discovery end date, unless there is a very good reason, discovery is completed and then the court within the next month or so will schedule a mandatory arbitration in the courthouse, at which you are present and the defense lawyer is present, he’s free to bring the defendant. The case is heard in like a mini trial, mini mini trial, half hour or an hour. We’ve submitted a very detailed arbitration statement, as has the other side. The arbitrator is an attorney such as myself. I can’t be the arbitrator in my own cases obviously, but I’m just using that as an example. The arbitrator will render an award. He or she will say, ” I find in favor of the plaintiff in a certain amount of money,” and will also consider the comparative fault of the parties. What is that? In every negligence case in New Jersey, the jury is asked, “Is the party being sued, the defendant negligent?” If the answer is yes, then the jury is asked a further question, “Was the claimant, the plaintiff also negligent,” and the jury is required to assess in percentages the negligence of both parties.
So that for example, if the defendant is negligent and you the claimant are twenty five percent negligent, your award is reduced by law by twenty five percent. So after the arbitration award is entered and filed that day with the court, either side has thirty days to file what is called the de novo. It’s like an appeal. What it does is render the arbitration award a nullity, doesn’t exists, and we move immediately to the trial calendar, within the next month or two. If neither side files a de novo, then that arbitrator’s award stands, that is the result of this case.