by Jay Girvin, Esq. Girvin & Ferlazzo. P.C. Albany, NY
- How long does it take to litigate a personal injury lawsuit from start to finish?
While that is a perfectly fair question (and one that is frequently asked by prospective personal injury clients), it is also a very difficult question to answer — other than to note that the litigation process typically takes longer than you might think. While all civil cases typically follow a similar process, each lawsuit is different. Some cases may be resolved within a period of months, while other cases can take years to complete. There is no “one size fits all” answer, but an understanding of the litigation process may help explain why some cases take longer to litigate than others.
All personal injury lawsuits typically begin with the filing of a summons and a complaint, which outlines the legal claims being made and the relief being sought — usually an award of money damages. The summons and complaint must then be served on the defendant parties named in the lawsuit, who then have between 20 and 30 days to respond by filing an answer (although the parties may agree to extend that deadline).
Once the answer has been served, the lawsuit enters into what is referred to as the “discovery” phase, which generally involves both written discovery and depositions. Both sides to the lawsuit may serve written discovery demands seeking information from the other party about their claims and defenses. A defendant, for example, may request that the plaintiff provide a verified bill of particulars which more specifically describes the negligence or other fault being claimed, and the nature and extent of the personal injuries and damages alleged. The defendant will usually also request authorizations to obtain relevant documents, such as medical and employment records. For its part, the plaintiff may request that the defendant identify any known witnesses to the event and/or explain the basis for any defenses being raised. While responses to these requests are technically due within 30 days of the demand, in practice it may take several months to complete written discovery.
After written discovery demands and responses have been exchanged, the next step in the discovery phase is for the parties to conduct and schedule depositions of party and non-party witnesses who may have information regarding the claim. Depending on the number of individuals to be deposed, it may take several months to schedule and complete depositions.
Once discovery has been fully completed, the plaintiff may file a note of issue, which is a document that alerts the court that the case is ready to be scheduled for trial. While discovery itself can take a long time to complete, there is another circumstance that may delay the progress of the case — motion practice.
A motion is a written request that the court take some action during the course of a lawsuit. There are a variety of motions that may be made to the court — a defendant may file a motion at the outset of the case to have some or all of the plaintiff’s claims dismissed; one or both parties may file a motion for summary judgment; or one or both parties may file a motion relating to discovery. All motions, however, follow the same process: one party files a motion, the other party is given an opportunity to prepare and file papers in response, and ultimately the court issues a decision deciding the motion. Depending on the circumstances, it may take several months for a motion to be filed, briefed by both sides, and decided by the court. In some (but not all) circumstances, the underlying case is effectively put on hold until the pending motion is decided.
Once discovery is completed and all pending motions are resolved, the case will be scheduled for trial. Depending on the court’s trial calendar, it may be several weeks, if not months, before a trial date is available. Upon trial and the issuance of a verdict, the case will be over — unless, of course, the losing party opts to take an appeal, which can take up to another year to be heard and decided.
A personal injury lawsuit requiring modest written discovery and one or two depositions, involving no motion practice, pending before a court able to offer a prompt trial date, and with no appeal from the verdict, may be completed within several months. On the other hand, a personal injury case requiring broad written discovery and numerous depositions, with multiple motions filed by one or both parties, and pending in a court with a busy trial schedule, may take many years to work its way through the litigation process.
Of course, the parties remain free at any time to end what might otherwise be a lengthy litigation process by agreeing to settle the case on mutually acceptable terms. Indeed, the time and cost of litigation is often one of the motivating considerations that leads parties to settlement.