There's a very high likelihood that after you hire your attorney, you'll have infrequent, short conversations with him/her. It's also very likely that you'll wonder what is happening and how your case is progressing, or more realistically, why it's taking so long to resolve. Sometimes this infrequent contact will frustrate you. "After all," you say, "it's my case and I deserve to know something about the process."
You're not alone. Many clients feel isolated from the legal process after they hire an attorney. Most would like regular contact, just for some information. The truth is, in most situations, there isn't much happening with your case, unless an important event comes up. I'd like to take you through a typical personal injury case, so hopefully if you're feeling left out of the process, you can find some relief. I'm also giving you some rough estimates of the time each process takes. These are rough estimates only! Depending on the facts of your case, your case may take more or less time.
Remember also, it's your right to call and contact your attorney about your case. Don't feel hesitant about doing that.
The Initial Preparation Period (6 to 12+ weeks)
After you sign the documents hiring your attorney, and your fee agreement, your "lawsuit" begins. During the initial preparation period, your attorney and his/her staff begins compiling your medical records, employment information, and other preparatory documents. Depending on your injury and accident, your attorney may conduct initial investigations of the accident scene, witnesses, vehicles/products, etc. Your attorney develops a profile of your case and medical history, which he/she will present to the other side at the appropriate time.
Your attorney will also notify, usually by US Mail, relevant insurance carriers of his/her representation. The insurance adjusters and your attorney will discuss the case, your treatment status, and expectations for recovery.
This is also the time when you make regular visits to the doctor for treatment, and if necessary, related surgeries. Your treatment schedule will determine when your attorney can begin pre-lawsuit negotiations to resolve your claims.
Pre-Lawsuit Negotiations (4 to 8 weeks)
When your attorney has gathered enough information about your injuries and damages, or you've finished medical treatment, he/she will start negotiating a settlement with the insurance agents.
The agent will review your medical records, the accident report, witness statements, and other relevant information to determine fault/liability, and extent of your damages. The agent will make an initial (often insulting) offer to settle the claim.
Your attorney will contact you frequently during this time to negotiate a settlement number with the insurance agency, which will release the opposing party from liability. Hopefully, you'll reach an agreement, and avoid filing a lawsuit.
The Lawsuit – Filing (1 to 2 weeks)
When negotiations between your attorney and the insurance agent break down, your attorney will recommend filing a lawsuit.
Your attorney will draft the Petition or Complaint, Summons, Cover Sheet, and prepare them for filing with the County or District Court Clerk.
Filing the Petition or Complaint requires your attorney to research relevant case law, statutes, and opinions, in order to state the appropriate causes of action, and elements. This is an important aspect of your injury claim, so your attorney will use his/her diligence.
Once your attorney files the Petition or Complaint with the Court Clerk, it's time for service of process.
The Lawsuit – Service (1 week)
Service of Process is a legal term that means "the lawsuit papers." Your attorney has a private process server he/she regularly uses to deliver legal documents. You attorney will ask the process server to deliver the documents to the opposing side.
When the process server delivers your documents, he/she files a return with the Court Clerk, and delivers copies to your attorney. Your lawsuit will wait for the other side to Answer the lawsuit.
The Lawsuit – The Answer (20 days)
Oklahoma state statutes and the Federal Rules of Civil Procedure allow a defendant 20 days from the date after service to answer the allegations in the lawsuit. The Rules also permit the defendant to reserve additional amount of time to answer, if they choose. This may delay the pre-trial litigation period in your case.
The Lawsuit – Pre-trial Litigation (180+ days)
Pre-trial litigation is a generic way of saying the time between filing the Answer and Trial. This time period includes events like discovery, hearings, mediation/settlement conferences, and depositions. During the pre-trial litigation period, you'll have sporadic contact with your attorney. He/she may request more information from you by phone or letter, or that you fill out documents.
During pre-trial, your attorney may request interrogatories, documents, or admission statements from the defendant. These documents ask the opposing side to answer questions and produce documents related to the accident. Oklahoma allows a defendant 30 days to answer these "discovery requests," but the other side may request additional time, depending on the complexity of the questions and documents requested. Despite your belief that he/she shouldn't grant extra time, your attorney will because he/she doesn't want to argue a discovery dispute in front of the judge.
Your attorney might request depositions during the pre-trial litigation period. The purpose of the deposition is to gather more information about the case, and hopefully get closer to settlement. Parties will scheduled depositions according to everyone's availability, which may delay your case.
Your attorney will draft and respond to several motions written by either side. Motion practice is an effective tool for limiting issues or determining innocence or fault. It's very likely that your attorney will draft a Motion for Summary Judgment or Motion to Dismiss, which he/she will use to end a case in your favor. Judges like to hear arguments on the motions, and will often order hearings. The Judge will determine the hearing date based on the Court's schedule. The Judge might also require several small hearings or conferences to settle the claims.
The pre-trial litigation period is an opportunity to increase (or perhaps decrease) your case's settlement value. This time period is your last opportunity before trial to settle your claim without added costs.
Trial (1 week, more or less)
Sometimes, trial is the last viable option for resolving issues. Depending on your facts, witnesses, and issues, a trial can last 1 day, or more (see this site or this site on the longest civil trial in Oklahoma history).
Unfortunately, lawsuits take time to complete. The more complex your issues are, the more time your case will take. Hopefully, during the litigation process, your attorney is giving you as much information as possible about your case. In all honesty, if your attorney has nothing new to report, it's probably because there's nothing new happening on your case.
Many people get frustrated because of the time it takes to complete a lawsuit. I hear some clients complain that they want to settle early because of the process. It's important to remember that in a lawsuit, you're dealing with the government, big businesses, and attorneys who each like to move slowly and examine their options. Put these factors together in a painfully long process, and you've created a recipe for drawn-out, time consuming disaster.
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