So in my last post I discussed the time frame surrounding your case BEFORE a lawsuit is filed. It is important to remember the distinction between a pre-suit case and an in-suit case. You may hear that you pre-suit case is often referred to as a “claim” and your in-suit case is referred to as a “lawsuit”. In this post, I will discuss the timing of in-suit cases or lawsuits. This timeframe will vary from jurisdiction to jurisdiction but my point here is to give you a rough outline on how the case will proceed.
Day 1: Case is filed
The first thing your lawyer does is file your case. Nowadays, this is easier than ever before. You can e-file and pay online, all in about 3 minutes. Your lawyer will file what is called a petition for damages—basically, a paper that lays out what happened to you, the injuries you are claiming and a threshold amount you are requesting. In Missouri, you must plead whether you are looking for over $25,000 or $25,000 and under—this is important because it tells the Court where to assign your case.
Once the case is filed, the clerk must generate a summons. A summons is a sheet of paper that the defendant is handed along with the petition that says “hey, we are saying you hurt us because you were negligent and here is the date and time you need to be at Court to answer this”. The summons is the paper that says where and when to be at which courthouse.
Day 2-30: Summons generated and service obtained
Once the summons is generated it must be retrieved by the attorney. You can just go into Case.net and grab it. Only lawyers can do it unless you are doing something pro se. The lawyer then sends the summons and petition to the Sheriff (with a few) or a person the lawyer has picked to serve (or hand) the petition. The sheriff will literally go out to the address on the summons and hand the defendant or any adult who lives there the petition and summons.
In an ideal world, this process takes about 2 weeks or less. The summons is valid for 30 days before a new one is required—we call that an alias summons. Meaning, if the sheriff cannot get the person served in the 30 days, you need to request a fresh summons from the clerk.
Day 30-60: Defendant has time to answer
Once the defendant is handed the petition and summons, he normally hands it over to his insurance company. He should do that immediately. The defendant (or more appropriately his lawyer) has 30 days to answer the petition. An answer is just another filing that says “we didn’t do anything you say we did or if we did we didn’t hurt you or you caused it yourself or someone else caused it or you didn’t take care of yourself after, etc…” Those are called affirmative defenses. Also, if the defendant thinks he has a claim, it is called a counter-claim and must be filed with his answer.
Day 60 to ?: Discovery
Here is where the timeframe starts to really change. The discovery phase of the case is where each side initially exchanges papers asking basic background questions—stuff like: Name, DOB, SSN, job history, current address, witness names, etc… In fact, many of these are standard questions. These basic initial questions are called interrogatories. You can find an approved version on the St. Louis City Court’s website: http://www.stlcitycircuitcourt.com/index2.html?XMLFile=xml/CourtFormsGeneral.xml .
Along with interrogatories, requests for productions will be exchanged. A request for production (RFP) is simply a written request that one side produce to the other documents. An easy example is the plaintiff asking the defendant for his insurance policy and the defendant asking the plaintiff for his medical bills. Pretty simply stuff but either side may object to another’s request. This is where it can slow down.
Now, technically, the interrogatories and RFPs must be answered under oath and within 30 days (see MRCP 57.01 http://www.courts.mo.gov/courts/ClerkHandbooksP2RulesOnly.nsf/0/ccbd32559d4a216986256ca60052134f?OpenDocument). However, the attorneys can make agreements to extend the time if they want.
This process can go on for months as people are tracking down documents or trying to get answers to questions. It literally can last for a year. The best way to keep it going is to have strict deadlines and get it done yourself. Basically, you cannot complain about another lawyer being tardy on responses if you are. In fact, sometimes it is necessary to go to court in order to have the judge sort out any disputes.
Day 100 or so?: Depositions
This could very easily be day 200 after filing but at some point you will likely give your deposition. What that means is you will go into a conference room (or any room for that matter) and answer questions from the lawyers in there. There will be someone recording (typing) everything that is said and there may even be a person taking a video of the deposition.
You will get lots of the same questions you already answered and some new ones you maybe didn’t expect. Either way, you should be adequately prepared by your lawyer.
Day 200 or so: More depositions
After your deposition, there will undoubtedly be other depositions—the fact witnesses, damage witnesses, doctors, experts, etc… This can really take some time as coordinating everyone’s schedule is almost impossible. Just think—you have to coordinate the lawyers’ and witnesses schedules, and in some cases, you have to find and subpoena the witnesses. Tracking down witnesses can take a while.
Day 365 to 730: Court’s Calendar
While all of the things above are going on, the most important scheduler is the Court. The Court will set a trial date—sometimes on its own, sometimes at the request of a party. However, each jurisdiction does things its own way. For example, in St. Louis County, you are assigned to your trial judge right away. But in the city, you are not assigned to your trial judge until about 3 weeks prior to the trial date (absent special local rules like St. Louis City local rules 6.2.1 and 6.2.4 http://www.stlcitycircuitcourt.com/rules/Local%20Rules.pdf).
Ultimately, it will be the court that determines when the case goes to trial. Always be mindful of that. The truth is that it is very tough to predict an accurate timeframe when it comes to a lawsuit. There are things you can do to make it happen fast but it ultimately is up to the Court. Ideally, getting case to trial under a year is fantastic. That would be a great goal.
Tips for Quicker Trial Dates (because that is when cases will resolve)
- Scheduling Orders: You can file one on your own or find out if the Court files their own. This is the best way to get a solid trial date. The sooner you get it the better. Ideally, you could file a proposed order with your petition. I must admit I haven’t been proactive enough to do that.
- Stick to deadlines under the rules: If a rule has a deadline, you should stick to it. If you blow it off, how can you hold the other side accountable?
- Have your ducks in a row before filing: If you have everything you need before you file, it will speed the process up. What may take a little more time in the beginning will save a lot in the end. What I mean by this, are all the documents the other side will request—employment records, W2s, medical records, car repair records, etc…. The list can go on and on but be thorough and you can avoid this problem.
- Stay in touch: Keep in regular contact with defense counsel—that way you will know how they work and what they need from you. You can move quicker to handle certain requests, especially if you already have it.