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What is Litigation?

August 16, 2019 by Brian Caplan

Clients filing complaints in their insurance company.

The actual process of litigation can be very confusing to many people. I thought it might be beneficial to give a very general outline of the process in this Blog to serve as a reference point to folks interested in the process.

The Complaint:

In general, the lawsuits that we handle are initiated by filing a complaint in a Colorado district court.  The court we choose to file in depends on either where the injury happened, or where a defendant lives. The party that files the lawsuit is called the Plaintiff and the party that the Plaintiff is suing is called the Defendant. Because we rarely have cases in County Court, we will focus here on only District Court cases.

After we file the lawsuit, we then personally serve the complaint on the defendant(s) by using a process server.  Many people believe that we sue insurance companies to recover damages that an insured caused.  Few people realize that, when we file suit, we actually sue the insured individual(s) that caused the injuries.  The involved insurance company then provides the defense attorney and any settlement funds up to (and including) the policy limit.  Incidentally, it is shocking to some people that at trial, neither party will talk about insurance coverage, leaving the jury to guess (sometimes inappropriately) about coverage.   

The defendant(s) will generally have 21 days from the day of service to answer the complaint.

Once the complaint is answered by all parties, the case is deemed “at issue” by the court.

Within a month or so of being at issue, the court will generally set the case for trial.  The courts try to set a case for trial within a year of the filing date. That is to say, if we file a case on August 1, 2019, the court will generally set a trial date before August 1, 2020. The discovery process usually begins when a case is set for trial.

Discovery:

In general, the discovery process is an opportunity for the parties to the lawsuit to get more information about the other party’s claims or defenses.  Discovery usually consists of written discovery requests (including interrogatories, requests to produce items/documents, and requests for admissions), depositions, and possibly a defense medical examination.  

Written discovery is just what it sounds like, the parties send written questions and requests to each other, and the parties (through their attorneys) are required to either answer the questions/requests, or provide a legal reason and/or objection for not providing the requested items.

Depositions are basically formal interviews conducted under oath with a court reporter taking down everything that is said.  The parties generally depose the other parties, and sometimes other non-party entities like expert witnesses, eyewitnesses, and/or treating physicians.    

A defense medical examination is an opportunity for the defense to hire their own doctor to evaluate an injured party.  The doctor will review a party’s medical records and complete a general health examination. The examination is non-invasive and usually lasts an hour or so. 

Discovery generally takes place from about 2 months after filing a case, until about 2 months before trial. 

Mediation:

98% of cases filed settle before trial.  If they settle, they generally settle before or at mediation.  Mediation is a formal type of negotiation where the parties go into separate rooms and a mediator (usually an ex-judge or an experienced litigator) goes back and forth between the parties in an attempt to settle the case.  

Most Trial Judges in Colorado require some type of mediation as part of the litigation process.  

If a case does not settle at mediation, that does not mean that it must go to trial, but it is certainly more likely to go to trial.

Trial:

Trials generally lasts 3-7 days from 8:00am – 5:00pm.  Trials are usually before a jury of 6-7 people (one alternate juror). While trials are never much fun for plaintiffs, they are sometimes the only way to get true justice in a case.  It is only at trial where we can speak to actual people (jurors) about our claims. It is only through trial where the insurance company does not get to decide how much a claim is worth. It is only through trial where the jurors have the power to make an appropriate award of damages. 

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