If Your Personal Injury Case Goes Wrong After Negotiation

If Your Personal Injury Case Goes Wrong After Negotiation | Zach Herbert

This is an ongoing series where Attorney Zach Herbert outlines the phases of an average personal injury case.  Not every case will follow this exact outline, as each case is different. If you missed the last installment in this series, visit it here “What to Expect in the Middle of Your Personal Injury Case” on the Herbert & Eberstein blog.

After you have gone through the steps of gathering evidence and negotiating your personal injury case, you will then have to decide if you want to settle your case. If you decide against a settlement pre-suit, the next phase to expect will be filing a lawsuit with the assistance of your Dallas personal injury attorney.

Phase 6: Filing Suit

At this point, your case has not settled, either because there were no offers, or you decided not to accept the offer to settle.  Regardless of the reason, a lawsuit must be filed. At this point, you might be thinking “I don’t want to go to trial!” Don’t worry just yet.  A very small percentage of civil cases that are filed end up at trial. In fact, more than 95 percent of all cases settle, depending on which county you are filed in.

The county your case is filed in depends on two things: where the personal injury happened and where the person you are suing lives.  A suit can be filed in either place. So, if you wreck happened in Dallas County but the person who caused it lives in Collin County, you can file your suit in either county.  Your lawyer will give you his or her advice on which county is best for your case.

The person you sue is called the Defendant.  In a car wreck, even though the person who caused the wreck has an insurance company that is paying for the damages, you must still sue the individual instead of the insurance company.  This is very old Texas law. In fact, the jury must never be told that an insurance company is paying or involved. The jury only sees that you sued the person responsible, not the insurance company.  Any evidence of an insurance company being involved is redacted from all documents as well.

Negotiations are all about what both sides think will happen at trial.  After all, the only reason you settle your case is because you don’t think you can recover more at trial than what they are offering now.  Sometimes settlements occur because the risk at trial is greater than what we are willing to take. Your attorney will guide you through this process and offer advice on your chances at trial.  The reason we are talking about negotiations now is because negotiations happen throughout litigation. Sometimes cases settle right after suit is filed, the day of trial, and everywhere in between.

It could take over a year and a half from filing suit to trial, and even longer than that.  This all depends on the county, the court, the judge, and the number of cases filed the previous year.  Your attorney has no control over how fast you get to trial. But remember, even though you have a trial date that is years away, most cases settle before that.  In fact, a typical car wreck case settled approximately 8-10 months after suit is filed.

Phase 7: Service

Once the lawsuit is filed, the Defendant must be served.  The court will issue a citation, which is a document that tells the Defendant that they have been sued and what to do.  The citation will be given to a process server, who will then personally serve the Defendant with the lawsuit. At this point, discovery is also served with the citation.  More on discovery later. Once served, the Defendant has until the Monday after 20 days to answer the lawsuit. Most of the time this process takes a couple of months. The process server must find the Defendant, and then the Defendant must notify his or her insurance company of the service.  Insurance companies in Texas do not have to defend an insured until they are asked to by their insured. This means that sometimes the Defendant might sit on the lawsuit, delaying the whole process. Or the Defendant skips town and is never heard from again. While this rarely happens, it is something to be prepared for.  But don’t worry, there are ways to work around an uncooperative Defendant.

Phase 8: Discovery

Discovery is where both sides exchange documents and media related to the case.  A set amount of questions are allowed to be asked in written form, as well as requests for documents.  These are called interrogatories and requests for production. Without going into the complex discovery rules in Texas, generally speaking, this is where we find out more about the other side’s position.  We ask written questions and they respond in writing. We ask for pictures, videos, and other documents and they respond with those documents. If the Defendant does not or objects, we might move the court to compel them to produce those documents.  

The Defendant is also going to ask us questions.  Most of the time we will need you to help us answer them, as you are the best person with the most knowledge about your case.  When we are served with discovery, we have until 30 days after service to answer. This is a short deadline, so we need to meet quickly to answer all of the questions and serve our answers.  The Defendant’s answers are due 50 days after service of the lawsuit, or 30 days after service of the requests, whichever is longer.

Once discovery is conducted, both sides have a better understanding of what the lawsuit will entail.  At this point, motions may be filed, and getting hearings and rulings may take some time. But most of the time, the case proceeds to the next phase, which is the deposition phase.

If you have been injured as a result of someone else, call Lawyer Zach Herbert at Herbert & Eberstein today. You may be entitled to receive compensation and should speak with an attorney to know all of your legal options.

Next up: Phase 9: Deposition Phase


Media Contact:

Attorney Zachary Herbert

T: (214) 414-3808