I will attempt to give you some insight into the Court procedural process for a personal injury case. Now what I am saying comes with a warning. No two personal injury or medical malpractice cases are alike. All are different in one or many more ways. In addition procedures can differ from the Bronx Supreme Court to Brooklyn Supreme Court and all the Counties of New York in between in many important ways.
Let’s start from the beginning, after you have completed your intake (your first visit to your lawyer), it can take time for a lawyer to assemble all the facts associated with creating the complaint that begins your case, and that they will file with the Court. Your lawyer has to determine the right parties to sue. He also has to determine who and where to properly serve the complaint. Often times the people who are responsible for your injury want nothing to do with you or your lawyer. Your lawyer has to do the investigation, maybe it is determining ownership of a company or property; the correct corporate name; the place of their incorporation; who the Department of State (in this case typically New York Secretary of State), has listed for service of process (service of the complaint by a process server), for a particular corporation.
All this is important, because properly naming the party, and serving the complaint correctly is critical to your case not getting dismissed. Once the complaint is served, then typically the lawyer for the Defendant’s (people you sued), will call the lawyer to ask for an extension of time to answer. I personally often extend the professional courtesy, when warranted, for this extension of time to answer, as long as the attorney will waive jurisdictional defenses, meaning they will not contest proper service. No one wants to deal with a Defendant pro se meaning that they represent themselves. And if an attorney has appeared on the case there is a good chance that the Defendant has insurance.
I will never forget the day I was admitted to practice law at the Appellate Division of the Second Department. One of the Justices said remember… to extend the professional courtesy. And I often do. Thinking of that memorial event has made it clearer and easier. And believe me, it is the rare lawyer who is so adversarial that they would not reciprocate the favor. It is important to have a sense of cooperation among your adversary, as the saying goes…what goes around comes around. So stipulating an additional 30 days to answer the complaint is not unusual; attorneys often do.
That is one thing I like about lawyers. Often times there are great misconceptions about our profession, and sadly I can report that I see these stereo types. (If you are a lawyer reading this blog, a word of advice: “beware the bitter fruit,” of people close to you who have been divorced.) I am not saying lawyers are perfect, but somehow over time they seem to get blamed for so much. So you lawyers out there voice your opinion and remind people just who figured out this Constitution of ours anyway….
Speaking of attorney admissions…on another interesting side note….I am reminded of a time I was admitting a lovely attorney friend of mine. I saw the large firms say good for this lawyer and that one…speaking highly of their professionalism…yes yes yes of course of course. When the judge asked me to say good for this particular lawyer I was moving to admit to Federal Court, I said she should be admitted because she has a good heart. I heard some of the people in the crowded Courtroom express the awww….which was really nice and different. But it was true, I saw what a great single mother she was, and the high emotional quotient of her baby she used to carry around. She had a lot of integrity of the heart. I don’t know….for me that was very valuable. It is called character. Find a lawyer who has character who tells you to be truthful but also how to advocate for yourself.
People often have the wrong impression of lawyers. I find that dealing with a lawyer is refreshing. We speak the same legal language and understand the parameters that clients sometimes find it hard to understand. If I could put it into one word it would be: civility.
The same is true for Judges, lawyers have to understand the legal language to make sense in the presentation of the legal arguments for your case. Judges do not have time to waste, so you have to have trust in your lawyer. Judges may have 600, or more cases on their calendar. They need lawyers to get to the bottom line; present the relevant facts, and the relevant law. Judges generally do not make new law, they apply the old law to new facts which can change the law in some important ways. These Orders, Memorandums, and Decisions, are the prior judge made laws or the application of statutes or legislated laws, and this judge made law is known and called the common law that actually has its earlier roots as far back as Great Britain, before the times of the Colonies. And before that it is based on tribal law, perhaps even before the great migrations in Europe, what effected one person effected the group or member of the tribe effected all of us.
New York has a large body of established laws. I have practiced in Illinois, and also in Florida, and Puerto Rico, what is called pro hac vice, meaning with leave of the Court on a temporary basis, and in many ways it is a pleasure to practice law in New York.
There are many good laws in New York and many good procedural laws here as well. People get their chance to have their day in Court. Also the Southern District of New York Federal Court is the most prestigious Federal Court in all the Circuits. And no wonder – with all the large corporations here in New York.
So finally your lawyer has gotten an answer, to the complaint. And more times than not, the defendant will simultaneously send demands for discovery. This may include a bill of particulars that will want to know the specifics of your personal injury case or medical malpractice case. Simply put a bill of particulars amplifies the pleadings: expands the complaint.
There will be other demands for documents, if the case involves contracts there may be a demand for admissions or interrogatories (a fancy name for questions), this is particularly true in federal court, and often leave to serve more than 25 requires leave of the Magistrate who is the junior judge compared to the Senior Article Judge, but has just as much power and controls the procedural aspects of the discovery process. But once again I digress, as in personal injury cases you cannot serve interrogatories with the demands that is the purpose of depositions.
Once the attorney has assembled the responsive documents, and response to the bill of particulars; you will probably be called upon to supply information related to the responses of the bill of particulars. After all it is you case… and this is particularly true if your lawyer served a verified complaint. I usually serve a verified complaint. I want to be sure there are no errors in the facts in the complaint. If there was a verified complaint served, then you will also have to verify the response to the bill of particulars that the answers are correct.
Once this work is completed then your lawyer will file with the Court a Request for Judicial Intervention also known as RJI. The Court cost for this RJI is 95 dollars. Then this will put the case up for assignment to a judge, and what is called a Preliminary Conference. This procedure is the same for Bronx, Brooklyn or wherever your personal injury case is in New York.
It can take several months or more before you get to a preliminary conference. Oh now you are seeing the real picture, these things take time….the Courts are backed up, as of the day of writing this I am finding this to be true for Kings County Supreme Court, and also for Suffolk County Supreme Court. This is also true as there was some recent budget cuts that cut staff of clerks in the Court system.
Once your lawyer appears at the P.C. short for the “preliminary conference,” there will be a signed Order related to a discovery time table. There will be tentative dates for depositions, which are proceedings in the lawyer’s offices of witnesses including of course yourself. Usually in a personal injury or contract case the Plaintiff goes first, and is the first person to be deposed and it goes in the order of the caption from there on; although on small less complex cases all parties may go on the same day to save time.
You have the right to be present at all these depositions, and really it is probably only necessary if you lawyer advises it. It can be helpful to your lawyer, if you sit in, as you have a better understanding of the: who, what, where, how, when, and why of your personal injury case or medical malpractice case.
I will try to save the facts about depositions for another blog.
Other things scheduled in the Preliminary Conference Order will be dates to provide authorizations for medical providers that you will have to sign. Don’t worry if you are signing 20 or 30 of the HIPPA forms, there is a reason for it. So prepare and keep track of the places where you treated, and if you are really good, the dates you treated, where, and for what.
Also remember to keep track of your associated co-pays, receipts for travel, and or medical devices…etc… these are called specials or special damages. Keep a track of you lost days at work, and lost wages…even if you were paid for those days, and had to sacrifice your vacation time, or sick time, hey after all that is your sick time and or vacation time that you worked hard to build up and now lost.
Other aspects in the discovery order may be schedules for Independent Medical Examinations. This means you go before the insurance company doctor. And there is nothing independent about it. They are hired, by the insurance company, and paid by them. Often for these doctors who are Defense expert witnesses what they do as they examine you – is the majority of their business. They often usually examine and do not treat.
There may be instructions about demands for videos to be exchanged or other discovery agreed to be exchanged. It varies from case to case; what goes into these discovery orders. And what will also be scheduled is the date for next compliance conference. This is a date to come back to Court to see what progress is made.
These compliance conferences or status conferences, as they are called in Federal Court, set dates for disclosure to be completed, and sometimes this can go on for two years or more…while Courts do have standards and goals to have litigants complete discovery as there are so many cases on their calendars.
In between there may be motions to compel disclosure that one side or the other has objected to. These motions can take time to be briefed, scheduled, submitted, and decided.
Once the discovery is complete you lawyer will file a certificate of readiness and note of issue: this means all discovery is now complete and the case is trial ready. But a trial does not happen so fast. Instead you are more likely to have a mandatory settlement conference with a judge or mediator of the Court.
Once the case is on the trial calendar it can take from several months to a year and a half or more before you get a trial date which depends on adjournments or the Courts calendar. If you are suffering from a terminal illness or have advanced AIDS or are over 70 years of age, ask your lawyer to motion the Court for a preference. If your preference is approved then this will greatly speed up your turn at getting a trial.
Two words to sum up: Be Patient.
Nothing in this blog is meant to be formal legal advice. Speak to your lawyer or seek the advice of a lawyer who has reviewed your case to get answers to your questions if you have a personal injury case pending or a medical malpractice case pending in the Courts.
Manuel Moses, Esq.
236 West 26th Street Suite 303
New York, New York 10001
(212) 736-2624 x11
Why is My Personal Injury Case Taking So Long to Come to Trial? was originally published on Manuel Moses Law Office – New York, NY | Personal Injury Attorney | Free Consultation (212) 736-2624 Ext. 11