Introduction and background

The rules followed in this system are based upon a combination of statutory law (laws passed by the legislature) and what is referred to as common law, the law we inherited from the judicial precedents of English law, which have evolved through the judicial decisions of judges in the State of New York over the past few hundred years.

In New York when an injured person retains a lawyer to start a law suit, the act that the lawyer performs to accomplish this is to file a summons and complaint in the appropriate county clerk’s office (usually in the county where the incident occurred, but occasionally in some other county where either the injured person or the person that caused the injury resides). This act of filing the summons and complaint stops the legal clock established by the applicable statute of limitations, which is window of time after the incident that the legislature has adopted for the filing of the case. This is a very important deadline because it cannot be extended by a court. The filing of this summons and complaint tolls (stops the clock on) this statute of limitations as long as the summons and complaint is served (personally or otherwise delivered) to the defendant within 120 days of the filing. Once this is accomplished and the case has started, the statute of limitations is satisfied and is no longer relevant.

In a civil lawsuit, the person who makes the claim and files the complaint is referred to as the plaintiff. The person or entity sued for causing the injury is referred to as the defendant. The complaint filed to start the case generally describes the claim: what the defendant did, why it was wrong, and what general damages it caused. This document is intended to provide notice to the defendant of the claim. Notice in this context means only a general idea of what occurred and when, not all of the specific facts that will eventually be proven at trial. Other devices used later in the discovery phase of the case provide the additional specifics that are required and not contained in the original complaint. The summons is a short document that identifies the parties and summons the defendant to respond to (answer) the complaint within a certain period of time (20 or 30 days, depending on the method of service).

The answer is the document the defendant serves upon the plaintiff’s attorney to respond to the complaint. The answer admits, denies or states that the defendant does not have enough information to admit or deny, the allegations made in the complaint. The answer also contains what are referred to as affirmative defenses, which are defenses that if established by the defendant can limit the amount the defendant would have to pay or even require the complete dismissal of the case. Once the answer is served and filed by the defendant, the discovery phase of the case begins.

The pre-trial discovery phase

The discovery phase, also referred to in New York as the disclosure phase, as the names suggest, is the part of the case where the parties are required to exchange certain information relevant to the case to allow the other side to properly prepare for trial. There are a number of discovery devices that are used for this purpose. With the answer to the complaint defendants will typically serve demands for further written information. These demands can take the form of something called a bill of particulars, or in other cases, a list of questions called written interrogatories. These devices both require written answers sworn to by the plaintiff to certain questions posed about the allegations of how the injury occurred and what the extent of the injury is and is expected to be. Defendants also commonly serve demands for the production of documents, including tax returns, accident reports and other documents the plaintiff might have that are relevant to the claim. In cases alleging that a plaintiff has suffered an injury, such as an auto accident case, medical malpractice case or product liability case, the plaintiff must also provide the defendant with medical records authorizations to allow him to obtain from treating doctors and hospitals all relevant medical records to the case. In the discovery phase the courts interpret what is relevant very broadly. This means that when you bring a personal injury case you must understand that your medical history will likely be opened up for inspection by the defendant, except under limited circumstances where the medical history is clearly irrelevant to the claim.

Simultaneous with the discovery demands served by defense counsel on plaintiff’s counsel, plaintiff’s counsel will also serve discovery demands on the defense counsel asking for specific information about any defenses raised by the defendant in the answer, the names and addresses of witnesses, the amount of insurance available to cover the claim, the production of relevant documents and other information. In product liability cases such as defective drugs or products, extensive requests are made for the design documents relating to the product including all testing reports, blueprints and internal memoranda of the company about the product. In these types of cases this phase can be lengthy as there is typically a great deal of documentation involved in the design and marketing of a product alleged by the plaintiff to be defective and to cause injury.

After the written discovery requests by each side are exchanged and responded to, the next phase is the scheduling of depositions also referred to in New York as examinations before trial (EBTs). The deposition occurs typically in one of the lawyers’ offices. The party is asked questions to answer under oath while a stenographer records what is said. A transcript of this testimony is produced which can then be used later to contradict any contrary testimony given at trial. Your attorney is present for your deposition and can object to questions that are asked if they are improper, but otherwise cannot coach you or advise you how to answer specific questions, except in the limited circumstance where the answer involves disclosure of legally privileged information (e.g. discussions between you and your attorney). The deposition of the defendant or in the case of a corporation, representatives of a defendant, are also scheduled and completed during this stage. In some cases witnesses who are not available to attend the trial will also be deposed and their testimony preserved, frequently on videotape. Many times treating doctors are given the option of giving testimony this way instead of having to appear at the trial.

Once the depositions are completed, frequently an injured plaintiff will have to submit to an examination by a physician of the defendant’s choosing, referred to as an independent medical examination (IME). This is a bit of a misnomer, as the physician chosen is frequently an advocate for the defendant’s position and far from independent. However, the law requires that an injured plaintiff submit to the examination nonetheless and plaintiffs must be careful to understand the purpose of the exam and not consider the physician as someone who is out to help them.

Getting the case on the trial calendar

When all discovery is completed the plaintiff in New York files what is called the note of issue, which states that the case is ready for trial and requests that a trial be scheduled. If a specific judge has not been previously assigned to the case then one will be assigned with the filing of the note of issue and that judge will then be responsible for scheduling the case for trial. A judge may already be assigned at this point if some court intervention was necessary due, for instance, to a failure of one party to properly respond to demands for discovery made by the other or if a motion to dismiss the case was made. In medical malpractice case judges are always assigned early on as part of a special package of procedures that apply only to this class of cases.

The length of the discovery phase varies from case to case based upon many factors, some in the lawyer’s control, but most not. For the majority of cases the discovery phase measured from after the answer is filed or served takes about six months to two years. In complex product liability or medical malpractice cases, the period can be longer. Moreover, if the judge makes a ruling during the discovery phase that is appealed by one party to the appellate court, referred to in New York as the Appellate Division of the Supreme Court, then this process can take considerably longer.

Once the case is assigned to a specific judge the decision of when it will be tried is based upon a number of factors including: the type of case, judge’s backlog of other cases to be tried, other previously scheduled trials for the lawyers, availability of witnesses and others. Some cases are given a date certain for trial while others are put on a calendar and called for trial when they reach the top of that list. Typically more complex trials requiring medical and professional witness testimony such as medical malpractice and toxic tort cases will receive dates certain because of the difficulty arranging testimony from such witnesses on short notice.

The trial

The first phase of the trial is when the jury is selected. This is referred to as jury selection or sometimes as voir dire. In civil cases in New York this is typically a phase of trial that is conducted by the lawyers under the supervision of a clerk without the trial judge present. During this phase each side’s attorney is permitted to question prospective jurors on their knowledge of the case, parties and witnesses, and also on areas of potential bias for or against a party or a type of lawsuit. Civil juries consist of six jurors as opposed to twelve for a criminal jury. Depending on the length of the trial there will also be one or more alternate jurors chosen in case one of the six primary jurors becomes ill or is otherwise unable to complete the trial. During jury selection each side gets to excuse jurors whose answers to the questions posed provide cause to dismiss them as not likely to be impartial. Each side is also permitted to dismiss any three other potential jurors it chooses without stating any reason why. The dismissal of a juror in this fashion is referred to as a peremptory challenge, while dismissing a juror for cause is referred to as a challenge for cause.

Once the jury is selected, the trial begins in earnest and from that point forward the trial judge is in charge. After the judge provides some initial instructions to the jury, the opening statements are given by each side, with the plaintiff’s attorney always going first. The opening statement is a preview of what the proof is going to be in the case, to set a context for the jury for what they are about to hear. The judge instructs the jury that the opening statements are not evidence, meaning that the jury cannot decide the case based on facts stated by the attorneys, but rather, can only decide the case based upon facts stated by witnesses or found in documents and other physical evidence admitted into evidence.

After the opening statements, the plaintiff presents all of his or her proof. Once this is done, the plaintiff rests his or her case, and it is the defendant’s turn to present proof. Plaintiffs have the burden of proof on all matters alleged in their complaint. This means that they have to prove that each allegation they have made is more likely to be true, than not. This is a different burden of proof than the beyond a reasonable doubt standard in a criminal case. The civil standard, called proof by a preponderance of the evidence, is meant to require the plaintiff’s proof of a given point to outweigh, even slightly, the proof presented opposing that point. Where a defendant has alleged an affirmative defense in his answer, then he must bear the same burden of proof on that defense.

When proof is completed the both sides are permitted to make a closing statement or summation, summarizing the evidence presented and what they think the outcome should be on each issue. In this instance, the defendant goes first and the plaintiff goes last. After the closing statements are made to the jury, the judge then instructs the jury as to the rules of law they must apply to the facts they find. The jury is the ultimate finder of the facts, but the jury must accept the rules of law that that the judge provides to them and apply those rules to the facts that they find to come to an outcome.

Appeals

The losing side has the right to appeal an adverse verdict to the Appellate Division. Appeals can be based upon a particular ruling that went against the losing party during the case, or upon the evidence as a whole if the verdict was against the weight of that evidence. An appeal can also be based upon the amount awarded being too high or too low. Appellate courts try not to reverse jury verdicts, so to have a jury verdict reversed requires a strong showing that something went wrong at the trial. If the plaintiff succeeds in convincing the jury and receives a verdict in a personal injury case and the defendant does take an appeal, one saving grace is that the defendant must pay statutory interest dating back to the date of the judgment if the appeal is unsuccessful. Because the statutory interest rate is 9% straight interest (not compounded) this can provide a deterrent to frivolous appeals by the losing defendant. The law, however, does not permit the plaintiff to receive interest on the amount awarded back to the date of the injury. Thus, the defendant does not have the same incentive to avoid delay during discovery as it has to avoid unnecessary delay during the appeal.

Settlements

Settlement can happen any time from before the case is started to after the verdict and before an appeal is heard. Frequently settlements occur just before trial and sometimes just before the jury is about to announce its verdict. Whether or not a personal injury case will settle at an early time is dependent upon numerous factors including the type of case, the number of defendants and the strength of the defenses raised. Auto accident cases have a higher rate of pre-litigation settlement than do other types of personal injury cases, although that rate has dropped in recent years since many insurance companies have hired salaried lawyers to represent insured auto accident defendants rather than paying outside firms by the hour to do so. Medical malpractice claims have the lowest settlement rate due to their complexity and the high rate of success the insurers have in defending them at trial. Some statistics suggest that well over 90% of all medical malpractice cases tried result in defense verdicts. However, many of the strongest cases are not tried but settled, so this does not mean that only 10% of medical malpractice victims are successful.

Settlements are usually advantageous because they provide a definite outcome and avoid the risk of an unfavorable jury verdict. However, experience has shown that firms that are prepared to try a case to conclusion have a better record of settlement for higher amounts than firms that have a history of settling all cases. This only makes sense when considered from the perspective of insurance companies. If the insurance company knows that the attorney has rarely tried a case then it also knows that as the deadline of trial approaches he is likely to try and convince his client to accept less to settle.

Choosing the right personal injury attorney is very important to the outcome of your case.