Litigation 101

The Litigation Process in New Jersey

As attorneys we spend a good deal of our time explaining the litigation process to our clients. Unless someone has been through the system they really do not have an understanding of its complexities. So, here is a brief summary of the New Jersey litigation process.

Filing a Personal Injury Lawsuit & Statute of Limitations

When someone suffers a personal injury due to the negligence of someone else, making a claim against the at-fault party’s insurance coverage is typically the first step in seeking compensation. If a case cannot be settled during the claims stage, it will be necessary to “file suit.” Filing a lawsuit is the formal process of bringing a case in court. The claim document is called a “complaint.” All states and the federal government have different time limits to file a claim in the courts. In New Jersey, an injured person generally has two years from the date of the accident to file suit for bodily injuries caused by negligence. Minors have two years from the age of eighteen to file suit, or until their twentieth birthday. The time limit is less for birth defect cases. The period of time in which a lawsuit must be filed is known as the “statute of limitations.” In New Jersey, there is a six-year statute of limitations to file a suit for property damage losses. If a lawsuit is not filed within the appropriate statute of limitations, then the case will be dismissed against the wrongdoer and there will be no legal right for the injured person to proceed.

Under certain circumstances in an automobile accident case, such as a verbal threshold or limitation of lawsuit threshold case (for example, whether you are entitled to seek pain and suffering and similar damages from the at-fault driver), a permanency certificate signed by a physician needs to accompany the complaint. Medical malpractice cases require an Affidavit of Merit. This is a statement signed by a physician stating that from his or her initial observation, it appears that malpractice may have been committed.

Why You Need an Attorney

Although there is no law requiring a litigant to hire a lawyer in order to use the courts, it cannot be overemphasized what a critical mistake it would be to represent yourself instead of hiring a qualified lawyer. The litigation process is loaded with landmines, and if you step on one of them, your case may be dismissed by the court.

A lawsuit is filed by preparing a document called a “complaint” and bringing it to the clerk of the court in the county where the suit is being filed. The county in which the lawsuit is filed is known as the “venue.” The person on whose behalf the complaint is being filed is known as the plaintiff. The person or party being sued is known as the defendant. There are both legal and technical requirements that must be followed when drafting and filing a complaint. The complaint must set forth sufficient facts as well as the theories of negligence to state a “cause of action” against each defendant. The physical act of filing a complaint is accomplished by paying the filing fee of several hundred dollars and receiving back a copy of the document stamped “FILED” by the clerk of the court. The court will then assign a “docket number” to your complaint. According to the “New Jersey Rules of Courts,” this complaint must be “served” together with a “summons” upon the defendant named in the complaint within a certain time limit; otherwise, the case will be dismissed. A summons is an order requiring the defendant to appear in court.

Once the defendant is served with the summons and complaint he or she will have thirty days to file an answer setting forth denials and separate defenses. During this same period of time, the insurance company will appoint or hire a lawyer to represent the defendant. From this date forward, the parties to the lawsuit will have initially three hundred days to engage in “discovery.”

The Discovery Process

The discovery process consists of drafting and serving your written interrogatory questions (formal written questions about important matters in the case that must be answered) upon the defendant and responding to the defendant’s uniform interrogatory questions. There are time limits involved that must be followed. Generally, after the written discovery stage is completed, both parties have the right to question and interview anyone under oath before a certified court stenographer (court reporter) in what is known as an “oral deposition” or “examination under oath.”

The purpose of a deposition is to “discover” facts, including those that could lead to other relevant evidence. Generally, clients and lawyers appear at depositions to hear both the plaintiff and defendant’s statements under oath. Depositions are formal meetings that normally take place in a lawyer’s conference room. Clients should be fully prepared prior to submitting themselves to a deposition. Preparation for a deposition consists of reviewing plaintiff’s interrogatory answers as well as the defendant’s interrogatory answers in order to understand the defense. At the time of the deposition, you should be familiar with your medical history as well as the facts of the case. Personal questions may be asked during a deposition for discovery purposes that would not ordinarily be allowed during a trial. Litigants will be able to testify as to the impact of the injury on the quality of your life. In advance of the deposition, you would work with your lawyer to prepare a list of all of those activities you are no longer able to do because of the injuries you suffered.

Toward the end of the discovery period, the defendant will hire expert witnesses, such as doctors, who will examine you in order to discredit your case. Although these physical examinations may be called “independent medical examinations” (IMEs), they are hardly independent. The doctors chosen by the insurance companies are usually “hired guns” who should not be trusted for any advice concerning your injuries and medical conditions. The doctor for the defense will issue a written report discussing his or her findings. All IMEs and expert reports must be served on opposing counsel within twenty days from the discovery end date.

After the discovery period closes, the court will assign an “arbitration” date. This is an informal hearing at the courthouse before a private lawyer who has been selected by the court to be an arbitrator in order to determine the value of the claim. An arbitration result is nonbinding and either party is free to appeal the results. The arbitrator will meet with the lawyers before the arbitration to narrow the issues. The arbitrator will then bring in the litigants to hear their versions of the events by their sworn “testimony.”

Arbitration Hearings

At the end of the arbitration, the arbitrator will consider the testimony, apply the law, and give his or her opinion as to the value of the claim. That opinion is known as an arbitrator’s award. If either party is dissatisfied with the arbitrator’s award, that party can file an appeal within thirty days of the arbitration award and set it aside by paying the required filing fee and filing a document requesting a “trial de novo.” The case will then be listed for trial.

Usually the court will try to bring the parties together toward resolution by scheduling a settlement conference before a judge. These conferences are often successful. However, if a case does not settle, the case will proceed toward trial.

Court orders can be issued if, during this litigation process, one of the parties chooses to ignore the demands and requests from the other party. In order to get a court order, the aggrieved party must file a “motion” for specific relief.

Jury Selection Process and Trial

Once a case is assigned out for trial, the parties will have an opportunity to select a fair jury. The process of interviewing potential jurors is known as “jury voir dire.” Both parties will make opening statements and call their witnesses, who will be examined and cross-examined by each side’s counsel. Since the plaintiff has the “burden of proof,” it is the plaintiff’s obligation to put on an affirmative case first. Each defendant will then call witnesses, usually consisting of the defendant and medical expert witnesses. The parties will then have an opportunity to sum up or argue their positions in their “closing arguments” or “summations.” The judge will then instruct the jury in what is known as a “jury charge” as to the law to be applied, which will be followed by the jury’s deliberations and the jury’s verdict.

The Verdict

After a verdict is reached, the parties will prepare judgments that the court will sign in order to enter judgment. From that date, the appeal clock will start to run. If no appeal is made, clients are awarded compensation.

The above is a simplified version of the events that take place over the course of process. All lawyers and pro se parties (people who represent themselves without an attorney) are obligated to follow the New Jersey Court Rules, a published book containing over 2,600 pages of rules and commentary. Lawyers and pro se parties are expected to know and follow these rules. During September of each year, new court rules are published. For that reason, one should not rely solely upon the court procedures discussed on this site without researching their current status.

Cases in Federal Court

Making matters more complicated, if a case is brought in federal court, please note that a totally different set of court rules will apply that may differ sharply from New Jersey’s court rules. Anyone having specific questions about federal cases should feel free to contact either Garry Salomon or Paul Garfield at Davis, Saperstein & Salomon P.C. Call 1-800-LAW-2000 today.