To succeed with your lawsuit, we will need your help. Specifically, we will need your help collecting medical and employment records, preparing for your deposition and trial testimony and getting updates about your medical treatment.
Our goal for your lawsuit is simple: we want to get your case to trial as quickly as possible. You will not have a resolution (e.g., settlement or verdict) until your case gets to trial. You should not expect a pre-trial settlement, as that is uncommon. The defendants will strive to delay and adjourn your case.
Filing of the Lawsuit
Your lawsuit is begun by the filing of a summons and complaint in a county clerk’s office. The lawsuit is filed in the Supreme Court (a trial level court in New York State) in the county where one of the parties resides. For example, if you or one of the defendants resides in the counties of Albany or Ulster, the lawsuit can be commenced in the Supreme Court in either Albany or Ulster county.
As the person bringing the lawsuit, you are the “plaintiff”, and the persons or companies being sued are called the “defendants”. The summons and complaint will be personally delivered (or in most cases sent via certified mail) to the defendants and the defendants’ lawyers will serve a document known as their “Answer”, which typically denies the allegations.
The 5 Phases of Your Lawsuit
So you know what to expect, this describes the basic procedures of a lawsuit and we you can do to help us.
Phase #1 of Your Lawsuit: Exchange of Discovery Demands & Responses
At the same time as the service of the defendants’ “Answer”, the defendants will serve written demands for information (known as “discovery demands”) about the allegations in your lawsuit. Each of the defendants will typically serve their own discovery demands and we prepare discovery responses that set forth the allegations in your lawsuit, including the injuries, medical treatment, economic loss and allegations of negligence.
Just as the defendants’ lawyers served discovery demands upon us, we will serve written discovery demands upon the defendants requesting information about their defenses. We will ask for an original chart review of the defendants’ medical chart, so we can make sure we possess all of your medical records.
The Court will issue a Preliminary Conference Order that specifies deadlines for each phase of the lawsuit. The exchange of written discovery demands and responses among the parties usually takes 60-90 days.
Phase #2 of Your Lawsuit: Depositions of the Parties and Non-Party Witnesses
Once the parties have exchanged discovery demands and responses, your lawsuit moves into the second phase during which depositions of the parties and non-party witnesses are held.
A deposition is usually held at a law firm, where you and the defendant will be asked questions under oath. We will meet with you a week before the deposition, so you will know what to expect and the type of questions that will be asked.
Following your deposition, the stenographer will prepare a transcript of your testimony. We will send you the transcript and ask that you review the transcript for accuracy. If any of your deposition testimony is inaccurate, you can complete an “errata sheet” (which will be enclosed with the transcript) that points out the inaccurate testimony and the reason for the inaccuracy.
We will be available to review the deposition transcript with you and answer your questions.
Phase #3 of Your Lawsuit: The Defense Medical Examination (“DME”)
After your deposition, the defendants have the right to have you examined by a physician of their choice. This is known as a defense medical examination, or “DME”. There is nothing independent about a defense medical examination, as the defendants’ physician is hired solely for the purpose of providing testimony at trial that diminishes the severity of your injuries.
Our paralegal will be present with you throughout the defense medical examination, in order to ensure that the defense physician does not ask inappropriate questions.
You should assume that you will be videotaped from the moment you arrive in the parking lot of the defense physician’s office, and even while you are walking in their lobby. Defense physicians are notorious for conducting surveillance video in an attempt to establish that your injuries are not as severe as claimed.
Following the defense medical examination, the defense physician will provide a report of his examination. Upon request, we will provide you with the DME report.
Phase #4 of Your Lawsuit: Getting a Trial Date
Following the depositions and the defense medical examination, we will file a legal document known as a “Note of Issue”, which certifies that discovery (e.g., discovery demands and responses, depositions and the DME) is complete and we are ready for trial. Within about one month, the Court will schedule a court conference for the purpose of scheduling a “day certain” for trial.
We will ask the Judge for the earliest possible date for trial. In most cases, the defendants’ lawyers will seek to postpone the trial by asking for the latest possible trial date. Once the trial date is scheduled, we will notify you and begin preparing for trial.
Phase #5: Preparing for Your Trial
As the trial date approaches, call us if you have any new medical treatment, as we will need to request the new medical records and provide a copy to the defendants’ lawyers. If we do not provide copies of new medical records to the defendants’ lawyers, the Court will not allow us to introduce evidence relating to those records at trial.
You should review your deposition transcript as often as possible—this will be your best preparation for trial. If your testimony at trial is inconsistent—even slightly—with your deposition testimony, the defendants’ lawyers will point out the inconsistency and attempt to convince the jury that you are lying.
We will meet with you to help you prepare for trial. As part of your preparation, we like to bring you to the courtroom, so you know what to expect.
As for the trial, we provide our best tips for winning your trial in the chapter, “Our Best Advice for Winning Your Trial”.