Assuming a claim cannot be resolved by negotiations with the insurance company, a lawsuit may be your only option. Many people have no idea what to expect, and that can lead to fear and concern. Here’s a general idea of what happens and how long the process takes. Remember that each case is different, with a broad set of variables. What you might face could be very different, but there will be some general aspects that are relatively similar.
Phase I
Consult with counsel to get a general feel for the merits of your case as well as the potential negative aspects. This is based on information available at that time – cases get stronger or weaker as more information is obtained.
Discussions between you and your attorney will take anywhere from a few days to a few weeks to determine the best way forward.
Phase II
Assuming early negotiations between counsel and the insurance company are unsuccessful, your attorney will file a lawsuit. This is initiated through a document called a petition or complaint, depending on whether it is filed in state or federal court. Most cases will start in state court, and the petition only has to include sufficient information to put the insurance company on notice of the lawsuit. The insurance company may respond by answering the petition or seeking to dismiss the case, a real challenge for the insurer to win.
This pleadings stage will typically last a month if an answer is filed, but can take far longer if a motion to dismiss is filed and the parties have to wait on the court to make a determination.
Phase III
The next stage is discovery. Typically, each side will issue written discovery, asking interrogatories (questions) and admissions, as well as requests for documents. This is a fairly simple process for most plaintiffs, but it can result in numerous court battles with insurance companies who want to produce the least possible.
This is also when parties and witnesses are deposed. A deposition is just an attorney asking questions of the party or witness under oath. It will be recorded by a court reporter, typing out everything that is said, but may also be recorded on video. It can be stressful to be deposed – we have an article addressing it in far more detail.
A standard discovery period is four months, but often takes a lot longer where there are fights over what must be disclosed, requiring court intervention.
Phase IV
Once all the evidence is collected, parties often file dispositive or summary judgment motions. Essentially, the parties argue in briefs to the court that there are no questions of fact and the court can decide on the briefs that one side or the other is entitled to a ruling in its favor. If successful, the case may end at that point, or certain issues may be decided and not presented to a jury.
Courts can take from a few weeks to months (and in certain circumstances) more than a year to decide summary judgment motions.
Phase V
The vast majority of cases are resolved prior to trial. Typically, this is done by discussions between lawyers (with approval of their clients) or at mediation or a settlement conference. Mediation (generally a one-day process) involves using another lawyer who is not involved in the case to work with the parties to understand the good and bad points of their side and convey offers between the parties. A settlement conference is essentially the same process, only a judge that is not involved in the case serves that role.
Settlement can occur any time within the litigation process – even when the jury is out during the trial – but it most often happens after discovery is completed and summary judgment decided.
Phase VI
Assuming the case does not settle or is not resolved by summary judgment, the case will be set for trial. Unfortunately, our courts are pretty backed up, which means you may be waiting for several months before the trial will actually begin.
The trial itself varies significantly with every case, but most last somewhere between 3 and 5 days. The attorneys on both sides will make opening statements, call witnesses and present documents and photographs relevant to the case. Your roll is much like it is in a deposition, to answer questions asked by the lawyers. After closing statements are made, the jury will deliberate and come back with a decision.
Phase VII
On relatively rare occasions, one or both parties will file appeals, arguing that the jury verdict was incorrect, typically as a result of some error made by the judge. The appeals process is a lengthy one and can last one or two years. Again, of those cases that are appealed, many settle while on appeal.
