You find yourself in a terrible situation. You, a loved one, or your property, has been damaged by the actions of another. Or, you or a loved one has been accused of causing injury to another or to property. What do you do? The following is intended to be a basic primer of how a personal injury lawsuit works.
Keep in mind that a personal injury lawsuit is a civil action, not a criminal action. The remedy sought is the payment of money. If the Defendant does not have the ability to pay, either though personal assets or insurance, it is not advisable to go forward with a personal injury lawsuit. In some cases, the Plaintiff may have his or her own insurance to claim against in the event the Defendant is at fault but is unable to pay. This type of insurance is referred to as uninsured/underinsured insurance.
A lawsuit is commenced by the injured party (the Plaintiff) filing a Petition at Law. In the Petition, a Plaintiff sets forth the basic elements needed to show a right to recover money from the Defendant. These elements are:
1) A duty on the part of the Defendant to take (or not take) a particular action: (i.e. a person's duty to operate a vehicle in a safe manner);
2) A breach of that duty (i.e. a Defendant failed to operate a vehicle in safe manner, causing the vehicle to collide with you or your vehicle);
3) Damages suffered due to the Defendant's breach of duty (i.e. costs to repair vehicle, loss of work, pain and inconvenience; permanent disability, present and future medical expenses, loss of enjoyment of life, etc.).
Once a lawsuit has been filed, the Defendant must be given notice of the lawsuit. The court cannot award damages unless it has proof that the Defendant is aware of the Petition and the demand for damages. The act of providing notice to the Defendant is called service of process.
After service has been accomplished, the Defendant must file an Answer. In the Answer, the Defendant will admit or deny each fact stated in the Petition and agree or disagree that the Plaintiff in entitled to damages. After the Answer is filed, both parties should be on notice as to what they agree on and what they do not agree on. If the Defendant fails to file an Answer within a certain period of time, the Plaintiff may seek a Default Order granting the damages requested in the Petition.
Once the Petition has been filed, notice has been given to the Defendant, and an Answer has been filed, the parties may proceed to trial if they are unable to reach a settlement. Prior to trial several events may occur. Either party can request information from the other by sending questions (Interrogatories) to be answered; request that the other party produce documents, or admit certain statements of fact. The Plaintiff can also require the Defendant and other individuals to appear before a court reporter and answer questions under oath. This is called a deposition. Oftentimes the Plaintiff and Defendant will designate experts to support the claim on fault or damages. A pre-trial conference may be required. The parties may also chose to attend mediation as way to resolve the case without the necessity of trial.
If the parties are not able to settle the case, the case will go to trial. Trial may be before a Judge or a jury. In jury trials, the parties will assist their attorneys in picking the individual jurors from a pool of potential jurors. In jury trials, the jury will decide two issues:
1) Whether the evidence proves the Defendant is at fault for the injuries suffered by the Plaintiff. In order to determine the Defendant is at fault, the jury must determine that a preponderance of the evidence (more than half) shows that the Defendant's actions (or inaction) were the cause of the Plaintiff's injury;
2) If fault is proven, what are the Plaintiff's damages and is the Plaintiff responsible for part of those damages. For instance, in an automobile accident in which the Plaintiff is not wearing a seatbelt, the law assumes 10% of the damages were due to the Plaintiff's own fault.
Initially, jury verdicts (decisions) must be unanimous. After the jury has deliberated for a certain period of time, however, the Judge may allow the verdict to be by a majority vote. If there is no jury, the Judge decides all issues.
The parties along with their attorneys determine what information needs to be presented to the Judge or jury. Information may be presented through testimony, documents, and other information in various forms. Each party has the right to see the information the other side presents and will be allowed to question the opposing party's witnesses.
The Judge or jury will consider the testimony of witnesses, any documents and photos which are offered; any other information which is received as evidence, and in the case of a jury trial, any instructions given to the jury by the Judge in determining whether the Plaintiff has proven the Defendant is at fault and the Plaintiff is entitled to damages.
If the jury's or Judge's verdict awards damages, the Defendant will have the right to file various post trial motions to declare the verdict invalid including a motion to set aside the verdict or motion for a new trial. Assuming the Judge does not set aside the verdict or order a new trial, the Judge will direct the Defendant to pay the damages ordered and allow the Plaintiff to take actions to collect those damages.
A party who is dissatisfied with the verdict on either fault or damages may appeal the case to the Iowa Supreme Court. A Defendant may seek to have an order entered allowing for a delay in having to pay damages while the case is on appeal. Generally, if this occurs, the Court will require the Defendant to post a bond equal to the amount of damages awarded.
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