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What Happens When You “Sue” Someone?

When you “sue” someone, you are filing a lawsuit against them. If the lawsuit is based on a claim for personal injuries, such as a car accident or medical malpractice, monetary compensation (money) is what is being sought. The process is referred to as litigation and is started by the filing of a document called a summons and complaint after a detailed investigation is conducted.

A lawsuit is a formal public proceeding involving the court, a judge and potentially a jury to determine if the claim is valid under the law and how much money to possibly award the injured person.

Under New York law, there are deadlines called “statutes of limitations” by which a lawsuit must be filed or the injured party is forever barred from filing the lawsuit and pursuing the claim.

You may hear people use the legal term “claim” and “lawsuit” interchangeably, however they are not the same. You can file a claim without ever filing a lawsuit, which is how some personal injury cases are resolved. A claim is a legal demand by an injured person for compensation from someone who is legally liable for the injury. Claims are typically filed against the insurance company of the liable party.

Typically a personal injury claim starts with a demand letter from the injured party’s lawyer to the insurance company for the at-fault person or entity. The demand letter may or may not include a specific dollar amount, but it will outline the theory of liability, injuries, treatment and possible economic losses. The goal is for the injured person to be compensated for any expenses and their pain and suffering resulting from the accident if it was the fault of another person or entity.

Filing a lawsuit is the next step after negotiations with the insurance company fail. This could be due to a dispute about how the accident occurred, who is liable for the accident and/or what injuries are and their value.

What is the process of suing someone?

Investigative Phase

In every case a thorough investigation must be completed to gather as much evidence as possible to analyze the liability that will be claimed and the injuries or damages suffered. This involves a meeting with the lawyer, signing HIPAA authorizations for medical records, reviewing those records along with any accident/incident reports or other documents and speaking to witnesses.

After this is completed, if the lawyer thinks there is a case pursuant to New York law, a demand or claim letter will be sent to the liable person or entity outlining the liability and injuries suffered to try to settle the claim before a lawsuit is filed.

“Settling” a claim at this phase is when both parties involved agree to resolve (settle) the matter by paying a sum of money in exchange for releasing the liable party forever and never filing a lawsuit. This agreement is memorialized in a document called a “release”. It is the insurance company for the person at fault that pays this money and not the person directly themselves.

Filing A Lawsuit

Many claims settle in the claims manner, but if they do not the next step is to file a lawsuit. This requires the claimant (injured person) to file a document called a “summons and complaint” with the County Clerk’s office. A lawyer should draft this document to make sure it complies with New York law and that it is filed correctly. There is a filing fee ($210) that must be paid. After filing, the at fault party, known as the defendant, must be notified or “served” with the summons and complaint. There is a precise way this must be done.

The defendant is required to file a formal answer to the complaint, which is also a legal document responding to each allegation outlined in the complaint with a response of admit, deny or deny knowledge and information . This is done by a lawyer that represents the defendant.

After this is completed, if the lawyer thinks there is a case pursuant to New York law, a demand or claim letter will be sent to the liable person or entity outlining the liability and injuries suffered to try to settle the claim before a lawsuit is filed.

“Settling” a claim at this phase is when both parties involved agree to resolve (settle) the matter by paying a sum of money in exchange for releasing the liable party forever and never filing a lawsuit. This agreement is memorialized in a document called a “release”. It is the insurance company for the person at fault that pays this money and not the person directly themselves.

Discovery Phase

The next phase is called discovery, which is the process of gathering evidence. Each side requests information and documents of the other. The defendant asks for information such as: a detailed explanation of the facts, the laws or regulations claimed to have been violated, medical records, employment records, school records, and the experts the injured person (plaintiff) intends to call if there is a trial. The plaintiff also asks for information such as: an explanation of the defenses to the lawsuit, the amount of insurance coverage, any records or documents that the defendant has relevant to the accident, and the experts the defendant will call if there is a trial.

Once both sides have exchanged the information, depositions are conducted, which give the lawyers the chance to ask questions of the parties and witnesses. It occurs in a conference room, typically at one of the law firms. The person being deposed is the “deponent” and is asked questions by the lawyer from the other side, under oath, with a stenographer present typing down all the questions and answers. This is very similar to giving testimony at a trial where you must swear under oath to tell the truth the whole truth and nothing but the truth.

At the conclusion of discovery, evidence or testimony may have emerged that can help settlement negotiations and ultimately resolve the matter without further litigation. If a settlement can be reached the case is over. If it can not be settled, a “Note of issue” (legal document) is filed with the Court, indicating the parties are ready to schedule a trial.

The defendant is required to file a formal answer to the complaint, which is also a legal document responding to each allegation outlined in the complaint with a response of admit, deny or deny knowledge and information . This is done by a lawyer that represents the defendant.

After this is completed, if the lawyer thinks there is a case pursuant to New York law, a demand or claim letter will be sent to the liable person or entity outlining the liability and injuries suffered to try to settle the claim before a lawsuit is filed.

“Settling” a claim at this phase is when both parties involved agree to resolve (settle) the matter by paying a sum of money in exchange for releasing the liable party forever and never filing a lawsuit. This agreement is memorialized in a document called a “release”. It is the insurance company for the person at fault that pays this money and not the person directly themselves.

Trial Phase

The next phase is preparing for trial. Both sides have a copy of important records sent to the Courthouse “certified” to be used as exhibits in the trial; subpoenas are sent to important witnesses requiring that they come to court on a specific day to testify; and both sides exchange what their experts will testify to at trial. Typically there is a final attempt to settle the case. Statistically, approximately 5% of cases ultimately make it to the trial phase. That means almost 95% of cases settle at some point prior to trial.

Both lawyers and all parties (plaintiff and defendant) go to the courthouse and try the case in front of either a judge (bench trial) or a jury for a decision on liability (who is at fault) and the amount of damages Money awarded) if the defendant is found liable. There are times when a case settles during the trial. If the case settles the trial ends. If it does not settle, the question as to whether or not the defendant is liable and if so the amount of damages (money) awarded to the plaintiff goes to the jury to decide, which is called a jury verdict.

Under some circumstances, the jury’s verdict or judge’s decision can be appealed to a higher court, which in New York is called the Appellate Division.

Litigation can be lengthy and stressful. Understanding the process helps you feel in control of your situation. We at Kammholz Law will help you understand each step of the way so you can make the best decisions for you and your family.

Once both sides have exchanged the information, depositions are conducted, which give the lawyers the chance to ask questions of the parties and witnesses. It occurs in a conference room, typically at one of the law firms. The person being deposed is the “deponent” and is asked questions by the lawyer from the other side, under oath, with a stenographer present typing down all the questions and answers. This is very similar to giving testimony at a trial where you must swear under oath to tell the truth the whole truth and nothing but the truth.

At the conclusion of discovery, evidence or testimony may have emerged that can help settlement negotiations and ultimately resolve the matter without further litigation. If a settlement can be reached the case is over. If it can not be settled, a “Note of issue” (legal document) is filed with the Court, indicating the parties are ready to schedule a trial.

The defendant is required to file a formal answer to the complaint, which is also a legal document responding to each allegation outlined in the complaint with a response of admit, deny or deny knowledge and information . This is done by a lawyer that represents the defendant.

After this is completed, if the lawyer thinks there is a case pursuant to New York law, a demand or claim letter will be sent to the liable person or entity outlining the liability and injuries suffered to try to settle the claim before a lawsuit is filed.

“Settling” a claim at this phase is when both parties involved agree to resolve (settle) the matter by paying a sum of money in exchange for releasing the liable party forever and never filing a lawsuit. This agreement is memorialized in a document called a “release”. It is the insurance company for the person at fault that pays this money and not the person directly themselves.

What Happens if the Person You Sue Has No Money

The ability of an at-fault party to pay does not bear any weight on the jury verdict or judgment following a trial. The judge or jury look at the facts of the case and evidence presented in conjunction with the law to determine if they are liable.

One of the most likely sources of payment of a claim or lawsuit is the insurance company for the at-fault person or entity. For example, a claim or lawsuit against a person who caused a car accident would involve the car insurance company of the at-fault driver or car’s owner. Since the driver pays for car insurance, the car insurance company would be responsible for paying a settlement or verdict up to the maximum amount of the policy. If the jury verdict is more than the policy’s maximum, the defendant could be personally liable for the excess amount. It is extremely difficult to recover money from a defendant personally.

If you have any questions about bringing a claim or lawsuit contact Kammholz Law PLLC for a free consultation at (585) 678-4500.