It is bad enough suffering a bodily injury, but sometimes there is no alternative but to pursue the claim in litigation. While a lawsuit is slow and frustrating for the personal injury victim, often there is no alternative. The other party’s insurance company may deny liability, make a low offer, or no offer. In these situations, other than filing a personal injury lawsuit, there is no way to force the other party’s insurance to pay a fair amount for the personal injury claim.
The exact procedural process will vary, but many personal injury cases in Washington are filed in Superior Court. While some cases are litigated in other state or federal courts, the process described here is based on a personal injury claim filed in Superior Court.
Mandatory Arbitration. All cases with claimed damages under a statutory threshold (currently $50,000 in King County) are subject to Mandatory Arbitration. An arbitrator is appointed. The arbitrator hears the case, typically in the arbitrator’s office. Both sides may present documents, briefing, and live testimony of witnesses.
The arbitrator renders a decision, which either side can appeal. An appeal results in the case being set for a jury trial. The side that appeal must be better off as a result of the jury verdict, or the other side may ask the court to award attorney fees. For example, if the insurance company for the other party appeals the arbitration and the jury award equals or exceeds the arbitration award, the injury claimant may ask the court to award attorney fees. Be sure to ask any personal injury attorney you consider hiring who gets the attorney fee award in situations like this.
Jury trial. Describing the entire trial process is beyond the scope of this article. A common misconception is that each side can present whatever evidence they want, and say whatever they wish, and then a jury decides what is best. It is not nearly so simple. It is hard to imagine the uninitiated conducting an effective trial. Even among attorneys, trial practice requires a skill set distinct from other practice areas. As I have heard one judge explain it, the attorney who drafted your will or gave you tax advice is not the same kind of attorney you want in a trial.
While volumes are written about trial practice, a short outline of the process follows.
- Voir dire. This legal term simple refers to jury selection. The method varies among court systems, and from judge to judge. In Superior Court typically each lawyer may ask potential jurors questions. Potential jurors may be excused for cause, and a limited number struck with a showing of cause.
- Opening statements. Each attorney may make an opening statement to the jury. The purpose of the opening statement is to preview to the jury what the case is about and what the evidence will show. The attorney is not supposed to “argue” the case, though a good opening statement will be persuasive. The opening should establish a theme, and explain to the jury that the evidence will prove the theme to be true.
- Testimony. Evidence, including documents, is presented through the testimony of witnesses. This is usually live in-court testimony, but may sometimes include video deposition or the reading of testimony for an unavailable witness. The lawyers do not have a blank check on what they may ask. There are ethical and legal rules that limit what may be asked. Usually there are also rulings by the judge before and during the trial interpreting these rules, and informing the attorneys what limitations the judge is placing on them and their witnesses.
- Closing arguments. Each attorney may make a closing argument to the jury. The attorney may make arguments in closing about what the evidence has proven, and why they think the jury should rule in their favor. Attorneys have wider leeway than in opening, but the arguments must be consistent with the judge’s instructions on the law, legal rulings made outside the presence of the jury, the evidence admitted in court, and various legal and ethical rules.
While most cases settle, many do not. The best way to foster the possibility of settlement is to be as prepared for trial as possible. If the other side sees you are ready and willing to try the personal injury claim, they are that much more likely to settle.