In San Diego, California, personal injury cases can consist of motorcycle accidents, automobile accidents, injuries, other accidents, slip and fall cases, dog bites, wrongful death, brain injuries and many others. Part one discussed first steps to consider in any personal injury case which included investigation pre litigation, analysis of claims, expert witnesses and their use for personal injury cases, damages and settlements of personal injury claim. Part two will discuss pleadings and claims in the filing of the law suit including time bars such as statute of limitations as well as the process of discovery, arbitration which is judicial, motorist claims under an uninsured policy and motorist arbitration under the uninsured policy, trial preparation, trial itself and post trial hearings and motions.

There are many considerations in filing a law suit in San Diego which include, among others, time bars and concerns regarding the pleadings. As in part one, an analysis has to be made and some considerations are whether the defendant is a private individual, business such as corporation or partnership or government entity. There can also be considerations if the defendant has passed away and there is a decedent estate and filing a creditor’s claim in probate court. There are strict statute of limitations in filing and you may have a very good case but be barred from seeking recovery due to waiting too long. This is why it is essential to meet with a lawyer right away after the accident for this and the many other reasons discussed in part one of this personal injury article. Statute of limitations can be different [or the same] depending on the cause of actions such as car accident, emotional distress, loss of consortium, assault and battery, malicious prosecution, negligence, wrongful death and many others. There can also be an issue as to who can sue which is also known as the “real party in interest”. In many cases, this is the person who suffered the injury but this is not the case in all personal injury law suits. For example, a subrogee can make a claim, a parent or guardian can make a claim for a minor, an executor can make a claim for an estate and there are also instances when a joinder is necessary. As above, your lawyer can give you advice as to your specific case.

The discovery process can be difficult and is very technical. Discovery can consist of written interrogatories, special interrogatories, request for production of documents, depositions, subpoenas, asset searches and even hiring a private investigator to obtain information. There can be objections to the discovery process which include attorney client privilege, spousal privilege, physician patient privilege, psychotherapist patient privilege, clergy penitent privilege, sexual assault victim counselor privilege, official information privilege, self incrimination privilege under the Fifth Amendment of the United States Constitution, trade secrets privilege and others. There can be requests for physical and/or mental examinations depending on the relevancy and the causes of action and allegations of damages. Discovery can also encompass expert witness designation and information exchange. There may also be requests for admissions and failure to comply with the Code of Civil Procedure can lead to sanctions and other penalties for non compliance. If you have been served with any discovery, you need to contact your attorney immediately.

The California Legislature has indicated that their purpose of to encourage the judicial arbitration process. This reduces the back log of civil cases since it can many months or many years to have a trial date set. In addition, this encourages pre trial settlements and is much less expensive for the litigants than a trial. The legal authority for arbitration is in the California statutes, California rules of court and San Diego County local court rules. The selection of the arbitrator can be one of the most crucial decisions made if arbitration is to be the dispute resolution method. There are advantages and disadvantages to arbitration and you need to speak with your lawyer regarding your individual case. After the arbitration, there will be an award and judgment and there is a right to a trial de novo with certain limited exceptions. For uninsured motorist claims, there is generally an arbitration process however, again, there are exceptions.

Preparing for trial is one of the most crucial stages of the case. There are many local rules which need to be complied with and you need an attorney experienced with the local rules in San Diego for your San Diego law suit. There can be the requirement for a case management conference as well as a meet and confer requirement. Continuances are granted but, generally, are not favored by the Judges once a trial is set so it is very important to have all evidence ready for trial in accordance with the Code of Civil Procedure and local rules and also make sure all witnesses are available and under subpoena in the event a witness cannot make the trial due to illness or accident or other reason. It is always a good idea, when preparing for trial, to try and settle the case before the trial date to minimize legal fees and costs as well as the uncertainty of a trial verdict which is not in your favor as no one can guarantee the outcome of any law suit or any other case. Discovery needs to be fully completed in preparation for trial.

At the trial for a personal injury case, many Judges have an in chambers conference before the trial starts to deal with issues such as review of the pleadings and issues, submission of witness lists, settlement possibilities, matters regarding the jury, motions in limine and each Judge has their own individual rules concerning examining witnesses, manner of objections, jury preinstruction, conduct between the opposing attorneys and other matters. Most trials, once a jury has been selected, will start with the opening statements of the attorneys. This will then move to direct examination and cross examination of the witnesses including any expert witnesses. Evidence will be presented and the attorney will ask that this be admitted so that the jury may consider and evidence can consist of many different forms: oral testimony of witnesses; deposition transcripts of unavailable witnesses; pictures; physical evidence and many other types including writings and demonstrative evidence. After all of the evidence in the case is presented, then the case is submitted to the jury for their decision. After the case is submitted to the jury, the jury will return with a verdict and judgment.

After the trial itself, there can be post judgment motions and hearings. One is a motion for a new trial or a motion notwithstanding the verdict or a motion to vacate the judgment. There are limited grounds to ask for a new trial and consult with your lawyer to see if any of these apply to your case if you have finished a trial. You can also consider an appeal however most cases do not succeed on appeal and a qualified appellate attorney should first be consulted and there are very strict time lines for appeals.

Please feel free to contact us to schedule your complimentary and confidential in office appointment at our San Diego office to discuss your personal injury case.