In California, a personal injury lawsuit proceeds in civil court. Therefore, the rules that apply to all civil lawsuits also generally apply in personal injury lawsuits.
Example Timeline of a Civil Lawsuit
The general timeline for personal injury claims and lawsuits might look like this:
- Plaintiff is injured in and sustains property damage, for example, from a car accident caused by the driver of a commercial truck.
- Plaintiff reports the accident to his auto insurance company.
- The other driver’s trucking insurance company contacts Plaintiff for an interview, but Plaintiff (rightly) refuses to speak to the other driver’s insurer and instead calls and seeks out the advice of an experienced personal injury attorney and receives a consultation and services.
Lawsuits Against Public Entities
Note that if the plaintiff is suing a public entity and seeking compensation, such as city or county or police department, the plaintiff must satisfy some extremely strict rules for first making an administrative claim with the correct public entity before filing a lawsuit. For example, the California Tort Claims Act requires that a plaintiff must file a tort claim with the correct public entity(ies) within 6 months of the incident. (Cal. Gov. Code § 910, 910.2, 911.2, 911.4.)
The plaintiff then has an additional 6 months from date of the rejection letter to file a lawsuit. If the entity does not issue a rejection letter, the deadline to file suit will change. (Cal. Gov. Code § 911.6.) Failing to satisfy these rules will cause any lawsuit that is eventually filed to be dismissed.
Litigation against any public entity tends to be a minefield of obscure rules, so consulting with an expert attorney is highly recommended (if there is a reasonable likelihood of wining the case, most attorneys will take on the case on a contingency basis (meaning no fee or money is to be paid by the plaintiff. Instead, a percentage of the compensated amount will be handed over to the attorney as a business payment for their services)
The plaintiff files a complaint with a California court (hopefully within the statute of limitations for his/her claims). The complaint describes the legal theories and alleged facts on which the plaintiff is suing. In personal injury cases, the most common cause of action is negligence.
Compensation Available to Plaintiffs
The types of compensation available to some, but not all, plaintiffs is as follows:
- compensatory damages
- general compensatory damages
- special compensatory damages
- punitive damages
Commonly used terms and conditions for damages include: pain and suffering, wrongful death for surviving family members, loss of wages or earning capacity, loss of consortium.
Service of Process Aspect
The plaintiff must serve the complaint on the defendant(s) within 60 days of filing it with the court. (Cal. Rules of Court, Rule 3.110.)
Within 30 or so days of being served with the complaint, the defendant(s) must file a responsive pleading, such as an answer to the complaint or a motion to attack the complaint, such as a demurrer or motion to strike. (Cal. Code Civ. Proc. § 412.20.) Although rare, a defendant in a personal injury case could also file a cross-complaint against the plaintiff. Generally speaking, the “pleadings” is professional legalese which refers to the complaint(s) and answer(s) filed in the case.
When a Case is “At Issue” in California
Once all parties have responded to the complaint, the court will deem the case to be “at issue.”
The parties will next conduct discovery, which is just a fancy way of saying that they will gather information from each other. The types of written discovery are called Form Interrogatories, Special Interrogatories, Request for Production of Documents aka Inspection Demand Letters and Request for Admissions.
The Discovery Process
The persons in the parties can also serve subpoenas to third parties aka non-parties, such as healthcare providers, employers, banks, etc. For example, the defendant might subpoena wage information from the plaintiff’s employer to verify the plaintiff’s wage loss claims, if any. Each party can also take oral depositions of any other party under oath in an office setting. Oral depositions in a personal injury case are usually taken of the plaintiff, all named defendants, and medical experts. Importantly, in a personal injury case where physical and/or mental injuries are alleged, the defendant will have a right to conduct an independent medical examination of the plaintiff. Discovery usually lasts 8-12 months, but could also last for years depending on the complexity of the case and how backlogged the court is.
During the discovery phase of litigation, the parties will usually also file motions related to discovery, such as motions to compel responses or motions for protective orders. It could take 2-3 months to resolve each discovery motion.
Case Management Conferences, Complaints and Motions
In order to move the case along toward settlement or trial, the court will regularly hold Case Management Conferences (“CMC”) – approximately every three to six months. All parties must file Case Management Statements prior to each CMC, which inform the court of the status of the case.
As the parties discover new information during the case, they may amend their complaint(s) or cross-complaints. After each amended complaint is filed, the opposing party can then file a new round of motions attacking the amended complaint, such as a demurrer or motion to strike.
Mediation or Settlement Options
At some point, the court will encourage or order the parties to mediation or a mandatory settlement conference to settle their case so that trial is not necessary. It is estimated that at least 80% of cases settle through mediation. This reduces the risk, expense and time involved to all parties.
Going to Trial
If the case does not settle at mediation, the court will set a trial date. In California, the plaintiff has five years from the time the lawsuit was filed to bring a case to trial. There are two types of trial: bench trials before a judge and jury trials before a jury.
The parties must finish conducting discovery at least 30 days before the trial date. (Cal. Code Civ. Proc. § 2034.210.)
In many personal injury cases, one or more defendants will file a Motion for Summary Judgment or Motion for Summary Adjudication. This type of motion must be heard at least 30 days before the trial date. Practically, this means an MSJ must be filed at least 105 days before trial. (Cal. Code Civ. Proc. § 437c(a).)
The “meat” of a Personal Injury Trial
The trial can last anywhere from less than a day to more than a month! Trials are not always held on consecutive days, but may skip days depending on the court’s calendar. This is the “negotiation” and cross-examination phase where the two opposing parties and counsel reach an agreement with the help of the court.
After the trial concludes and a result is given, any of the parties may file additional motions, such as a motion for new trial. The parties may also decide to appeal one or more aspects of the judgment. Appeals may take one to three years to resolve, depending on whether the parties seek extensions of time.
Note that California also has a fast-track rule for certain trials that may speed up the entire litigation. (Cal. Gov. Code § 68600 et seq.) For example, if a plaintiff is very old or is suffering from a severe illness and invasive treatments, the case may be fast tracked so that trial occurs much more quickly and damages and payment made in order to be of use to the plaintiff.