One common complaint of clients who have never filed a lawsuit before is, “why can’t I just go in front of a judge and tell them my story right now? They’ll get it.” It’s understandable if you don’t know how the judicial system works. What the client is referring to is called “due process.”
Due process is the Constitutional right that the American government operate within the law and provide fair procedures. It also means that the judge will hear both sides of the story. This is commonly referred to “getting your day in court.” But before the sides get to present their story to a judge or jury, a lot of things must happen. The first is preparation up to and the filing of the lawsuit.
Every state (and federal court) has legal ethics rules. One of these rules is that an attorney may not sign their name to something they believe to be false, lacking evidence, or unable to support after further investigation. This is done by the attorney taking steps of due diligence, i.e., “reasonable steps taken by a personal in order to satisfy a legal requirement.” But due diligence is more than just about fulfilling the ethical obligation. Sometimes the investigation can turn up helpful evidence, but in other cases, it may end up hurting the case even though it appears to be a successful one.
Car Accident Lawyers Start With a Fact Finding Mission
Upon the initial meeting with a lawyer, they will begin their factual investigation: the who, what, where, when and how of the case. This will establish a foundation of the case at hand. But it also will lead to where there needs to be additional questions asked. For example, were there witnesses? Who are they? Can we contact them? Are there documents that need to be reviewed? Medical records? Pictures? Is there case law that can help or hurt us? Sometimes critical information may not arise right away. This can affect the timeline of how an attorney approaches a case.
The following are a few examples of the pre-lawsuit phase:
Example 1: Driver X drives through a red light hitting Driver Y and causing injuries. The police report records witness statements confirming Driver X drove through the red light and caused the accident. Driver X is cited for violating traffic laws. Driver Y hires an attorney who obtains the police report before a lawsuit is filed and makes a demand to the insurance company. The insurance company admits liability and settles the claim. The attorney’s obtaining the police report confirming liability allowed the case to settle without having to file a lawsuit.
Example 2: Hiker X is on a pathway in a public park, trips over a branch, and sustains injuries. The branch could’ve easily been removed from the pathway. Hiker X retains an attorney who finds the “Recreational Trail Immunity Statute.” The law provides immunity to public entities for injuries sustained on paved or unpaved walkways and trails unless gross negligence and danger can be shown. Because of the attorney’s research before the lawsuit was filed, there was found to be no case. If the attorney took the case to trial and lost, it’s possible the client could end up owing money to the other side after trial.
Unless there are time constraints for the statute of limitations, an attorney doing due diligence before a case is just plain smart. By following the adage “measure twice, cut once,” doing preparation and work up front, the lawyer can get a better idea of what to expect in their case. This practice yields much better results for their clients.
Filing of the Lawsuit
Once due diligence is completed, and if no pre-lawsuit settlement can be reached, a lawsuit will be filed. The legal term for this document is a “complaint.” The other party must be served a copy of the complaint. They are given 30 days to respond. There are several different ways a defendant can respond, but in most car accident cases the response is an “answer” or “demurrer.”
An answer is a response by the defendants where they admit, deny, admit in part, or deny in part, the allegations of complaint.
A demurrer, on the other hand, is a motion where the defendant basically argues the plaintiff doesn’t have a claim. Either the facts as alleged aren’t sufficient or there is a legal defense to the claim (the trail immunity statute example above is an example of something that would probably be successful on demurrer).
Each of the above types of responses has strategical variables associated with them. Most often in car accident cases, the defendant will respond with an answer. But this will depend on the exact circumstances of each case.
If you have questions about how an injury lawsuit works, please feel free to give me a call to discuss. I am happy to answer any questions you may have about your case.
San Diego Car Accident Attorney
My name is Daniel Hanecak and I am a San Diego Car Accident Lawyer. I know from personal experience how stressful and time consuming a car accident can be. When you call Hanecak Law Inc., you will speak with me directly. It is my aim to provide you with free and friendly advice. Call me today at 858-206-4DAN for a free case evaluation.
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