What Happens Right Before Trial in a Personal Injury Case?

What Happens Right Before Trial in a Personal Injury Case?

This is the conclusion to 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 of the series you can visit it here

After going through the discovery process in your personal injury case, the next phase you should expect to begin is the Deposition phase. It’s important to work with an experienced personal injury attorney at Herbert & Eberstein, to protect your rights in the final phases of your case. 

Phase 9: Depositions

Depositions are sworn testimony that is recorded out of court.  This saves lots of time and helps the case settle. If depositions were not allowed, most cases would proceed to trial before settling.  Many different depositions can be conducted, for instance: witnesses to the personal injury incident, doctors that treated the Plaintiff, the Plaintiff herself, the Defendant, Experts that have been hired by either side, and so on.  Depositions, or “depos” for short, take place in an office, usually a conference room. The person being deposed sits next to a court reporter, who types everything that is said. The attorneys for both sides can ask questions, but the attorney that “noticed” the depo asks questions first.  “Noticing” a depo means sending an official document to all involved that notices all parties of the date and time and place of the depo.

In a car wreck, depos may include a Plaintiff and Defendant depo.  These are usually on the same day and often take place in the Plaintiff’s attorney’s office.  Most of the time you will meet with your attorney before the deposition so that he or she can prepare you for what to expect.  Depos can last as little as 30 minutes and as long as a few hours. The maximum amount of time a depo can take in Texas is 6 hours, although you will rarely see this happen.  Your attorney will give you an estimate of how long it will last.

The whole point of depos is to figure out how the trial will go.  This allows the parties to proceed to the next phase, which is Mediation.  

Phase 10: Mediation

Mediation is where most cases settle.  Even if your case doesn’t settle at mediation, it is still worth the time to go to mediation.  Mediation takes place at the mediator’s office, and the parties are kept in separate rooms. Mediations can take two hours, half a day, or a full day, depending on the complexity and size of a case.  Most car wreck cases take two hours.

At this point, depos have likely been taken, and the parties have a good idea of how the trial will go.  Your attorney will give you his or her estimate of the chances at trial and the risk associated with going to trial.  The mediator will come into your room and talk with you and your attorney about your case. The mediator is a neutral party, meaning he or she is not on either side.  The mediator wants to settle the case and will work hard to do so. This may mean he or she will try to get you to take less while trying to get the other side to offer more.  Wait for your attorney to give his or her advice before making a decision on your case.

If your case does not settle at mediation, then the next phase is the Trial phase.  However, remember that there are still many opportunities to settle your case before trial.

Phase 11: Trial

Trials in Texas happen almost every week in the more populated counties.  Each court has its own set of “local rules,” which means your experience may differ from someone else’s.  Some courts are very quick to call cases to trial, and some are slow. Some courts require all parties to show up on Monday only to call one to trial and reset the rest.  This process can become frustrating, and many Plaintiffs can become disheartened with the whole thing. Don’t worry! Your case will eventually be tried!

A typical car wreck trial will start with pretrial motions, when the attorneys and judge discuss what evidence is going to be allowed.  Then voir dire, where the attorneys speak with a panel of potential jurors. The attorneys are allowed to “de-select” jurors, and then the final Jury is selected.  Next comes opening statements, presentation of evidence, and closing arguments. Every case is different, so going into detail at this point won’t be helpful. At a minimum, the Plaintiff will testify.  This is a lot like your deposition, only more evidentiary rules will apply. Your attorney will prepare you for this part before trial.

The Jury will then go into a room and deliberate.  They will have a document with them called the Jury Charge.  This has questions they must answer, which include monetary damages in most personal injury cases.  When the Jury is finished deliberating, the verdict is announced in court. A judgment is prepared for all parties to sign and the judge will enter a judgment 30 days after the verdict.  At this point, the case is finished! If the judgment included monetary damages, the final amount will be calculated, and a check will be issued to the Plaintiff’s attorney. (See Phase 5 for what to expect after settlement.)  

Every case is different, and none of the above was intended to be legal advice.  If you have questions about your personal injury suit, call Attorney Zach Herbert at 214-414-3808 or schedule a consultation.


Media Contact:

Attorney Zachary Herbert

(T): 214-414-3808


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


What to Expect in the Middle of Your Personal Injury Case

What to Expect in the Middle of Your Personal Injury Case | 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 first installment in this series, visit it here “Different Phases of a Personal Injury Caseon the Herbert & Eberstein blog.

Once you have taken the first steps in beginning a personal injury claim, you will likely want to know what to expect next. After reporting your claim and going through liability determination, you should expect to go through these phases in your personal injury case next. 

Phase 3: Gathering Evidence/Demand

How long will this take?  This is a common question, and the most honest, but also most frustrating answer is “It depends.”  It depends on the following: the nature of injuries, the amount of treatment needed, the estimated coverage available, and the level of complexity of the case.  First, injuries in personal injury cases can range from minor to severe, and even death.  Minor injuries do not take long to heal, and the medical treatment associated with those injuries will also not take much time.  The severity of the injuries sustained in a personal injury event, like a car wreck, dictates how long the evidence gathering phase takes.

The whole point of this phase is to get a good picture of what damages the negligence of the defendant caused.  Put another way, how much were you hurt? To get a good snapshot of how much you were hurt, we must first look at the damages that are allowed to be recovered in a personal injury lawsuit.  Not all damages will be listed here, but the most common ones are medical expenses, pain and suffering, mental anguish, and physical impairment. Damages can be divided into two categories: economic and non-economic.  

Economic damages are those that you can get a receipt for.  Examples of economic damages are medical expenses, property damage, loss of use, and lost wages.  These are relatively easy damages to calculate. Because these damages are so easy to calculate, insurance companies and lawyers tend to value cases based on these damages alone.  However, non-economic damages can be much more than economic damages.

Non-economic damages are intangible – they include things like pain.  If someone causes another person pain, compensation for that pain is possible.  However, quantifying another’s pain is very difficult. Thousands of trial books have been written on this subject.  However, the best way of looking at this is considering how much we spend to take pain away – from over the counter to anesthesia, taking pain away is very important to us, and expensive.  Causing another person pain should be measured in the same way.

In Texas, the statute of limitations for most personal injury cases is two years from the date of the incident.  This means a lawsuit must be filed against all responsible parties before two years is up. A trial does not have to happen by then, and in fact, many trials take place after the statute has run.  More on that later. For now, remember that no matter how severely injured you are, the clock is ticking on the lawsuit. Most lawyers will want to get the snapshot of your injuries over to the insurance company within a year.  This gives them enough time to negotiate, gather any additional evidence, and prepare a lawsuit.

A demand contains that snapshot.  In Texas, a demand to an insurance company needs to have all the evidence available to allow the insurance company to make a reasonable settlement offer.  At this point, attorneys vary on what their demands look like. Some think they need to be 10 pages long and summarize all medical records. Some think demands need to be only a page.  The reality is that demands need to have all the medical records and bills and any other evidence attached so the insurance company can have an opportunity to evaluate the case.

Phase 4: Negotiation
A reasonable time must be given to the insurance company after the demand is sent.  This may range from a few weeks to a month. Depending on how large the demand is, insurance companies may request an extension on their response.  When an insurance company responds to a demand, they usually do this in writing. Any offers to settle a case are for all damages. Rarely are offers itemized.  This means that whatever an insurance company offers, you get what is left after Attorney’s fees, expenses, and unpaid medical bills. Your attorney will communicate the offer to you, and estimate how much will be left for you, and then give his or her advice.  This advice usually is either take the offer or don’t take it. You are the only one that can settle your case. Your attorney merely gives you advice.

Negotiations may last a while.  The insurance company might want more information, or might lowball the first offer and necessitate some back and forth.  Your attorney might wait until he or she thinks they have the highest possible offer before they give you a final number and settlement advice.

Phase 5: Settlement pre-suit
If you decide to settle your case at this point, you are finished!  No lawsuit will be filed and no trial will take place. Roughly 50-60 percent of personal injury cases settle at this point.  However, many things must happen after the settlement. Any liens must be negotiated, the payment must be received, and the attorney must create an accounting for your approval.  Sometimes this can last 45-60 days after a settlement is reached. The settlement check will be deposited into a trust account until the final accounting is ready for your approval.  Once you receive your check, you don’t have to worry about federal income taxes – personal injury settlements are tax free!

If you have been injured as a result of someone else’s negligence,  you may be entitled to receive compensation and should speak with Lawyer Zach Herbert at Herbert & Eberstein today.


Next up Phase 6: Filing Suit


Media Contact:

Attorney Zachary Herbert

T: (214) 414-3808



Different Phases of a Personal Injury Case

Different Phases of a Personal Injury Case | 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.

No one ever imagines that they will be injured as a result of someone else’s negligence.  But when it happens, most people are unsure of what to expect during a personal injury case. When a person is injured and in need of a Richardson personal injury attorney, the following is an outline of what to expect.

Phase 1: Reporting claim/treatment

When you are involved in a personal injury event, such as a car wreck, 18 wheeler wreck, or slip and fall, reporting the event to the insurance company begins the entire process.  It is crucial to not delay this first step. There could be multiple insurance companies involved, complex coverage issues, or specific reporting requirements related to the claim.  Finding coverage is important at this step in the process. If there is no insurance available, then it will become very difficult to obtain compensation.

Once coverage is identified, the insurance company(ies) involved will need basic information to be able to “set up a claim” and assign a claim number to the case.  This number should be on all correspondence to make sure that everything is being saved by the insurance company to the correct file. In a car wreck, insurance companies need the basic facts of the wreck, a police report if available, a general nature of the injuries, and names all parties involved and any witnesses.

While all of this is going on, so is treatment.  All personal injury events involve medical treatment.  This may be from a hospital, orthopedic doctor, chiropractor, or primary care physician.  At this point, documentation is key. While you can say to an insurance company that you are hurt, there is no proof unless you are checked out by a medical professional and he or she writes your symptoms and diagnosis down in a medical record.  At this point, every case is different. Some cases last a very long time while treatment is completed. Some cases are very short, as minor injuries do not take as long to treat. At the end of the day, the point of all of this is to get a clear picture of what was caused by someone else’s negligence.  To put it a different way, the insurance company needs to know what happened and what was hurt.

Phase 2: Liability Determination

Every case will have a liability determination early on.  This is done by the insurance company after gathering the basic facts of the case and speaking to any witnesses.  A liability determination is important because it is a key part of any personal injury case. Liability is another way of saying “who is at fault” or “who is responsible.”  If the other person is not found to be at fault or responsible by an insurance company, then they will refuse to pay, no matter how badly a person is injured. We call this “denying liability.”  This is not necessarily the end of the world, as there are ways of getting over a bad liability determination. However, more evidence is needed. For example, if a person runs a red light and hits you, but tells his or her insurance company that their light was green, then the insurance company will most likely deny liability.  But if a police report is made that places responsibility on the other person, or if a witness can be found, then the liability determination may be reversed.

Most times liability is “accepted” by the insurance company.  This now allows the insurance company to begin to pay for damages caused by their insured.  A good example of this is property damage. Once liability is accepted, the insurance company will assess the property damage and make an offer to pay.  In the case of car wrecks, this is usually the fair market value of the vehicle right before the wreck occurred. Many times, this is less than what a new car will cost, or less than what is owed on the car.  It is important to purchase gap insurance to defray the costs incurred in these situations.

Personal Injury Protection and Medical Payments coverage, purchased through your insurance company, do not require a liability determination before paying for damages.  If you have purchased collision insurance and decide to go through your insurance company, no liability determination is required before your insurance will begin paying for damages.

If you have been injured as a result of someone else’s negligence,  you may be entitled to receive compensation and should speak with Lawyer Zach Herbert at Herbert & Eberstein today.

Next up: Phase 3. Gathering Evidence/Demand


Media Contact:

Attorney Zachary Herbert

T: (214) 414-3808