personal injury lawsuit process

Every personal injury lawsuit filed in New York courts is unique, but the lawsuit process generally involves similar steps from commencement to resolution. It’s vital to know the various aspects related to filing a personal injury lawsuit in New York. You can be better prepared for your initial consultation with a personal injury attorney once you know the basics of the claim process you will have to follow.

Step 1: Serving a Summons and Complaint

Your personal injury lawsuit will begin with a ‘Summons and Complaint.’ The Complaint is a legal document prepared by plaintiff’s attorneys to set out the general nature of a claim, including the place and date of accident. Complaint in New York State is a personal injury action that doesn’t need to state the amount of compensation. The jury can award whatever they think you are entitled to. 

The defendant will have 30 days to serve a response, also known as an ‘Answer.’ This reply is the defendant’s position on the claim. Typically, all defendants deny the claims made. 

Step 2: Bill of Particulars

Your attorney will prepare the Bill of Particulars once they receive an Answer to the Complaint. This document will list out your injuries in detail and explain the overall cost in terms of medical bills and lost earnings. The document will also explain how the defendant is liable for the injuries. 

Typically, defendants ask for the following authorizations or items at this time:

  • Employment authorizations for accessing W2s
  • Copies of tax returns or authorizations to obtain tax returns if you are self-employed
  • Insurance information for disability, private medical insurance, Workers’ Compensation, or unions
  • Contact information of eyewitnesses and anybody else that came to your aid following the accident
  • Bills for medical supplies, medical care, transportation, child care, home health care, and property damage
  • Photographs of the site of accident, injuries, conditions resulting in the accident, and other components involved in the accident
  • Contact information of medical care providers, including physical therapists, doctors, and hospitals
  • Authorization for obtaining medical records

Step 3: Preliminary Conference

Preliminary conference is the court conference for scheduling mandatory physical and oral examinations and document production. You can also call this the first court appearance. The Court requires this conference before placing the case on the trial calendar. The conference results in a court order that sets out the documents, information and authorizations which need to be exchanged between the plaintiff and the defendant.

Only your attorney will attend this conference. They will apprise you of the physical examination and Court-ordered Examination Before Trial (EBT) date. 

Step 4: Examination Before Trial Definition

This is also known as deposition and is an oral examination conducted by the defendant’s attorneys. Depositions are generally carried out in an informal setting outside of Court. With that said, you would be placed under oath and the interview will be in the presence of a court reporter. The purpose of an oral examination is to attain as much information as possible about the claim and to ensure that there are no surprises at trial. 

Examination Before Trial (EBT) are mandatory. You are required to attend these failing which your case may get dismissed. You don’t need to be intimidated by an EBT. The attorney for the defense will ask after your injuries and the accident. Your attorney will prepare and navigate the examination process. It is important that you answer the questions honestly and appear natural. 

You should try and not provide more information than required. Follow your attorney’s guidance and stick to the facts for ensuring your rights remain protected. You can have an interpreter present at the examination if you let the attorney know in advance.

Step 5: Physical Examination

If required, the defendant can request for the plaintiff to submit to a physical examination by a doctor they choose. This examination will be for obtaining a better account of the injuries you are claiming for. The defendant will schedule the appointment and you will be required to attend it. The Court may order you to pay for the missed appointment if you don’t attend. 

It is possible that the Court dismisses the case as well. You may never recover compensation for your injuries then. It’s crucial to understand that the doctor will not be looking to help with your medical condition. Instead, they will look for reasons they can use for testifying against you. You need to tell the truth and be cooperative. Moreover, don’t discuss the details of your lawsuit or the accident. 

You don’t need to divulge more information than necessary. You can simply state the facts, such as ‘I fell’ or ‘I was a passenger in the car accident.’ The doctor is most likely to have been provided with a copy of the EBT testimony, synopsis of the accident, or a Bill of Particulars by the defendant’s attorney. 

You should make a note to reveal all injuries – physical and mental at this time related to the accident. Don’t skip anything. Don’t downplay any injury that you suffered because of the accident. The doctor will not include an injury in their report if you omit to tell them about it. This may reduce the value of your claim. 

Step 6: Discovery and Inspection

Discovery and Inspection refers to the exchange of documents and information between the defense and the plaintiff. This can include requests for items that were specified in the Bill of Particulars, such as employment records, property damage records, medical and school records, and photographs among other items. 

The defendant may demand access to your social media accounts, including Twitter, Facebook, and Instagram to find something that contradicts the statements made by you. You should know that what you post online is not considered private by the Courts. In fact, you should consider desisting from posting personal information on social media platforms. 

Defendants are required to produce insurance information, statements from the plaintiff, witness information, photographs, videos, and other pertinent information during the Discovery and Inspection step. The defendants also need to disclose whether they have any videos of the accident or you through a private investigator. 

It is quite likely that the defendant’s attorneys or the insurance company had you followed if you have severe or disabling injuries. They may use surveillance cameras as well for undermining your claims. For instance, they may want to catch you walking a few steps from the wheelchair to your car. Guaranteed, the defendant and their counsel will not show the hours you spend in your wheelchair during a trial. Instead, they will probably just show the few seconds you were standing or walking. 

Step 7: Getting a Calendar Date

You can file calendar papers in Court once the Discovery is complete for stating the case is ready to go to trial. Cases are tried on the order they are entered into the calendar. Every judge has a different way of working and pace. Your case will be called up when the cases before you have been taken care of. It is impossible to know when your case will be called to trial. 

However, there are “standard and goals” dates published by the Courts depending on their general expectations. This is based on the approximate statistics of when your case can be called for trial. 

Step 8: Jury Selection and Trial

Jury selection is the first step in a jury trial. The attorneys for the plaintiff and defendants will go the jury room for selecting 6 jurors and 2 alternates. The selected individuals will be your peers or members of the community with no pre-conceived notions of your case. The factual issues, in a jury trial, are determined by the jury and not the judge. 

The jury selection process is important because these people will decide whether the defendant should be held responsible and the amount of monetary reward you are entitled to. The plaintiff’s side produces the witnesses and presents the evidence first for proving their case in accordance with the prevailing law.

Step 9: Verdict

Courts in New York City generally try the case as a bifurcated trial or in two parts. The first part determines whether the injuries was caused by the defendant. At this time, information about the damages is neither presented nor considered. The defendant doesn’t need to pay any monetary damages unless they are considered responsible (partially or completely) for the accident. 

You can move to the second part of the trial if the defendant is found responsible. You can present your injuries and damages to the jury who will determine compensation based on the evidence you produce. 

Settlement, Arbitration & Mediation

Settlement offers can be made by the defendant’s attorneys or the insurance company at any time during the lawsuit. This is can be done even before you file the Summons and Complaint. Generally, representatives of the defendant want complete information before making any settlement offers. Settlement discussions may start once the Discovery is complete. Your attorney will play a major role in negotiations at this time to secure maximum possible compensation for you. 

Speak to a Leading Personal Injury Attorney in New York City

Whether you decide to take the settlement route or fight your case in a jury trial, the legal team at Rosenberg, Minc, Falkoff & Wolff, LLP can aggressively protect your rights. We will leave no stone unturned to pursue your case for maximum compensation. Schedule your free, no-obligation consultation with our attorneys today. Give us a call at 212-344-1000 or complete this online form.


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