The actual process of litigation can be very confusing to many people. I thought it might be beneficial to give a very general outline of the process in this blog to serve as a reference point to folks interested in the process. The dictionary’s definition may not work for many of our prospective clients, so in plain English, litigation is the process of taking a legal dispute to a court of law to have a judge or jury resolve the issue.
Some people refer to this legal act as “suing someone,” but no matter what you call it, you are engaging in a lawsuit to enforce your legal rights. The reasons why you need to litigate vary, but the process is generally the same for every personal injury case. Stick around to learn more about the meaning of general litigations, the step-by-step process, and why you should care.
Step One: The Complaint
In general, the lawsuits that we handle are initiated by filing a complaint in a Colorado district court. The court we choose to file in depends on either where the injury happened, or where a defendant lives. The party that files the lawsuit is called the Plaintiff and the party that the Plaintiff is suing is called the Defendant. Because we rarely have cases in County Court, we will focus here on only District Court cases.
After we file the lawsuit, we then personally serve the complaint on the defendant(s) by using a process server. Many people believe that we sue insurance companies to recover damages that an insured caused. Few people realize that, when we file suit, we actually sue the insured individual(s) that caused the injuries. The involved insurance company then provides the defense attorney and any settlement funds up to (and including) the policy limit. Incidentally, it is shocking to some people that at trial, neither party will talk about insurance coverage, leaving the jury to guess (sometimes inappropriately) about coverage.
The defendant(s) will generally have 21 days from the day of service to answer the complaint. If they do not answer within that timeframe, we are allowed to file for a default judgment. This means the defendant risks losing the case. If the court rules solely on our evidence, the other party could be ordered to pay all requested damages.
Once the complaint is answered by all parties, the case is deemed “at issue” by the court. Now that the initial pleading stage is complete, we have defined the specific disputes for the judge, and the case will move toward discovery and trial.
Within a month or so of being at issue, the court will generally set the case for trial. The courts try to set a case for trial within a year of the filing date. That is to say, if we file a case on August 1, 2026, the court will generally set a trial date before August 1, 2027.
Step 2: The Discovery Phase
The discovery process usually begins when a case is set for trial. In general, this step provides an opportunity for the parties to the lawsuit to get more information about the other party’s claims or defenses. In a civil litigation, this phase could span as little as three months or up to a year for some matters. The timeline depends on the case’s complexity, the volume of evidence, and how cooperative the parties are, particularly when the process involves multiple rounds of depositions and document exchanges.
Written discovery is just what it sounds like: the parties send written questions and requests to each other, and the parties (through their attorneys) are required to either answer the questions/requests or provide a legal reason and/or objection for not providing the requested items.
Depositions
Depositions are basically formal interviews conducted under oath, with a court reporter taking down everything that is said. The parties generally depose the other parties, and sometimes other non-party entities like expert witnesses, eyewitnesses, and/or treating physicians. Discovery generally takes place from about 2 months after filing a case, until about 2 months before trial, and usually consists of:
Interrogatories
Interrogatories are formal, written questions exchanged by the parties in a civil case. They must be answered truthfully under oath within a set deadline, often 30 days. These questions serve as a foundational tool to build a case and evaluate liability. They are used to uncover details about your accident, injuries, medical history, and witnesses. However, under C.R.C.P. 33, we are typically limited to just 30 requests.
Requests To Produce Items Or Documents
We may also submit formal, written requests for various items or documents in the discovery phase of your personal injury lawsuit. This step requires opposing parties to share relevant evidence, such as medical records, accident reports, photos, and insurance policies. These requests help us build strong cases, verify types of damages, and encourage fair settlements.
Requests For Admissions
Requests for admissions are another set of written, formal discovery statements. These are sent to the opposing party asking them to admit or deny specific facts or document authenticity. They are crucial for streamlining trials by narrowing the issues and establishing certain facts.
Defense Medical Examination
A defense medical examination is an opportunity for the defense to hire its own doctor to evaluate an injured party. The doctor will review a patient’s medical records and complete a general health examination. The examination is non-invasive and usually lasts an hour or so.
Step 3: Mediation
It is generally recognized that 98% of personal injury cases filed settle before trial. If they settle, they generally settle before or at mediation. Mediation is a formal type of negotiation where the parties go into separate rooms and a mediator (usually an ex-judge or an experienced litigator) goes back and forth between the parties in an attempt to settle the case.
Most Trial Judges in Colorado require some type of mediation as part of the litigation process. This form of alternative dispute resolution saves costs and reduces court backlogs.
If a case does not settle at mediation, that does not mean that it must go to trial, but it is certainly more likely to go to trial. What it does do is signify an impasse in negotiations. When this step fails, there are some alternatives to trial, including binding arbitration, settlement conferences, or returning to the negotiation table to try again.
Step 4: Go to Trial
Trials generally last 3-7 days from 8:00 am – 5:00 pm. Trials are usually before a jury of 6-7 people (one alternate juror). While trials are never much fun for plaintiffs, they are sometimes the only way to get true justice in a case. It is only at trial that we can speak to actual people (jurors) about our claims. It is only through trial that the insurance company does not get to decide how much a claim is worth. It is only through trial that the jurors have the power to make an appropriate award of damages.
Talk to an Experienced Litigator and Schedule Your Free Consultation
While it may be easy to grasp the general meaning of litigation, the nuances surrounding this formal legal procedure could be quite complex. That is why it is essential to have a confident attorney on your side, with well-honed persuasive and strategic presentation skills.
The team of personal injury attorneys at The Wilhite Law Firm has demonstrated this elite level of competency in U.S. courtrooms for decades. Schedule your free, confidential consultation to discuss your litigation questions. Whether you were bitten by a dog or are a victim of medical malpractice, join our roster of satisfied clients now. We have secured over $1 billion in settlements and verdicts, and you never have to pay if we do not win.
