The trial process

Not every case will settle. If your case is one of the ones that heads to the courthouse this is what you can expect. Insurance companies have lots of lawyers - many have their own law firm. They know the statistics and are data driven in their decisions whether to settle or not. If there is little property damage from the wreck and soft tissue injuries, the odds are very good that the insurance company will not offer much to settle. They know juries are a bit cynical about injury cases. Any attorney who promises you something different isn't shooting straight with you.

Here are some basic definitions and ground rules that apply to trial:

  • The person who files the lawsuit is the Plaintiff
  • The person sued is the Defendant
  • In trial, the Plaintiff has the burden to prove their case by the greater weight of the credible evidence
  • The lawsuit is usually filed in the county where the car wreck happened or in the county where the Defendant lived at the time
  • Most car wreck cases are tried to a jury

A lawsuit is started with a petition filed by the plaintiff. In state court, it states very basic facts that, if proven, entitles the plaintiff to damages. These damages include medical expenses, loss of wage earning capacity, physical pain, mental anguish, disability and disfigurement. The petition is served on the other side (defendant) and they have about three weeks to file an answer (actually it's the Monday following the expiration of twenty days). After that, written information is exchanged (interrogatories, request for production of documents and requests for disclosure). Usually, both parties' depositions are taken after that. Often the case will go to mediation in an attempt to settle.

If the case does not settle after all of that, it goes to trial, usually in front of a jury. The jury is asked to decide the facts of the dispute, including who was at fault and how much the damages are. The lawsuit is against the other driver, not their insurance company. In fact, the jury isn't even told there is insurance. Naturally, any case like this going to trial is an insurance dispute, but the insurance company is allowed to hide behind the person sued and pretend that poor person may have to write a check at the end of the case. That is the law in Texas. It is different in Louisiana and New Mexico. In those two states you can sue the insurance company directly.

Most cases settle. Still, it is important to have trial as an option and to have an attorney who knows how to try a case. Otherwise you have no choice but to take the last offer the insurance company wants to make.

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