WHY  PERSONAL  INJURY  CASES  TAKE  SO  LONG PART IV: DISCOVERY :

Once a case begins, there is a “pipeline” of events through which the case must pass.   This pipeline is meant to insure that the case moves along as expeditiously as possible and that the parties to the lawsuit, and in particular their attorneys, take the necessary measures in a timely fashion so that the case will reach a conclusion within a somewhat reasonable time.  What “reasonable” consists of is undoubtedly measured differently by the client, and those used to working in the court system.

There are requirements for the submission of certain documents triggered by the initiation of the lawsuit.   After the service of the “Complaint” upon the Defendant, the Defendant must serve an “Answer” upon the Plaintiff.  The Answer virtually always contains a “Demand for a Bill of Particulars” from the  Plaintiff ..   The “Bill of Particulars”, provided to the Defendant by the Plaintiff, is then given in response to the Defendant’s Demand.  The Bill of Particulars sets forth answers to questions posed by the Defendant in the Defendant’s Demand, and usually covers many items, including the way the accident occurred and the specific injuries sustained by the Plaintiff as a result of the accident.

This “pipeline” also consists of certain required conferences where the attorneys set dates for the exchange of information between the parties, and set the dates for depositions, (commonly known as Examinations Before Trial) of the parties–opportunities for all parties to question each other about the facts of the case.   The information to be exchanged consists of such items as medical records, repair and maintenance records, employment information, school records and other items that may bear directly on the issues being raised in the particular case.

There is a target date set for when ALL discovery must be completed–often a year or more in advance of the first conference depending on the county where the case is brought–which is influenced by the case load in that court.  At that point a Note of  Issue must be filed, which places the case on the trial calendar of the court.   Your case is then “on line” waiting for a trial.  Again, depending on the county, this wait can be anywhere from several months to more than a year–depending on how crowded the trial calendar is in that county !

Delays often occur when one party or the other, for a variety of reasons, fails to provide the demanded information to the opposing party.  In that event the recourse is for the party seeking the information to make a “motion” in court asking the court to intercede and force the recalcitrant party to produce the information sought.  The aim is to attempt to complete all “Discovery” by the time set by the court for filing the “Note of Issue”. Contact one of our New York Personal Injury Attorneys today.

PART III : BEGINNING LITIGATION

The beginning of litigation refers to the start of an actual lawsuit. In cases where a NOTICE OF CLAIM was required to be filed, the law prohibits the commencement of legal action before the Notice of Claim is filed AND before the agency or governmental subdivision against which it was filed has had an opportunity to question the claimant. This questioning is called a “50 H Hearing”, the statutory name for what is simply an oral deposition of the claimant. Sometimes the “50 H Hearing is waived by the governmental entity, sometimes not. Once the hearing is held, or waived, the papers to begin the lawsuit may be filed in court, and then served on the defendant or defendants. (You, the person bringing the lawsuit, is known as the PLAINTIFF). The filing of the papers in court BEGINS the actual lawsuit.

In cases that do not require the filing of a Notice of Claim, the papers to begin the lawsuit, generally a Summons and Complaint, may be filed in court and then served upon the defendant (or defendants) at any time. The service of the Summons and Complaint is usually performed by a professional process server that works for a Process Service company. There are legal requirements as to when and how legal documents may be served, and cases can arise where the method of service will be vital to the viability of that case. This is especially true in cases that are begun very near the expiration of the Statute of Limitations, when improper service can mean the time limit within which a lawsuit MUST be brought has expired, and there is no recourse!

Just a special note regarding Statutes of Limitations:

Never, ever think you have enough time to contact your attorney about a possible lawsuit “because my friend told me that I have three years…” Time limits within which you MUST bring lawsuits vary greatly. Most negligence actions have three year time limits, most medical malpractice have two and a half, most intentional acts require lawsuits within one year, and so on. However, there are exceptions to virtually every rule. Get to an experienced attorney by calling our New York City Law Firm at The Orlow Firm before your opportunity to litigate disappears!