One of the most common questions I am asked by my medical malpractice and personal injury clients is how long will it take for my case to settle. The need for financial compensation is urgent for victims of serious personal injury who find themselves unable to work and needing costly rehabilitation and attendant care.
For those injured in car accidents, there is a no-fault accident benefit system that allows for some immediate payment of funds. Many people may also have some limited extended health benefits through their employer and access to long-term disability benefits.
However, for those people seriously injured, particularly the ones outside of the motor vehicle accident insurance system, these limited benefits are insufficient to provide any kind of meaningful financial security. The prospect of having to wait many years for a legal resolution can seem completely overwhelming and defeating.
In this post, I will outline all the major steps in a personal injury lawsuit explaining each stage and the approximately time estimate. The essential stages of all civil lawsuits are as follows:
All cases require investigation before initiating a lawsuit. For general personal injury claims, the investigation is often straightforward. For more complex medical malpractice claims, the investigation stage can take much longer. On average, most investigations take anywhere from 3 - 12 months.
The pleadings stage involves having legal documents filed with the court and then having them served on the defendants. The process of locating and serving defendants can take several months. Once the defendants are served, they typically require several months to formulate a response which they will file with the court. The pleadings stage takes approximately 2 - 6 months to complete.
Discoveries is the exchange of information before trial. There are two main aspects to the discovery process: documentary discovery and oral discovery. Documentary discovery is the production of relevant documents from one side to the other. This usually happens first followed by oral discoveries which is when one side's lawyer asks the other side questions. This is called an examination for discovery. It is recorded by an official court report and the transcripts can be used in evidence at trial. The whole process of producing documents, scheduling, conducting and completing discoveries can take anywhere from 12 - 24 months.
Once discoveries are complete, the next phase of the litigation is to finalize expert reports. All personal injury and medical malpractice claims will require expert reports. These may require you to be assessed by a physician in-person or virtually. Simple claims may only require one or two expert reports. However, complex claims may require 6 or more expert reports some of which may require foundational reports. This process may move slowly due to availability of expert witnesses who can often take time to prepare final reports. This process can take 6 - 18 months.
Mediation is generally a voluntary non-binding meeting between parties who use a neutral third party to facilitate a compromised settlement. Mediation is common in general personal injury claims with a relatively high success rate. In my experience, about 3 out of 4 cases will settle at mediation. Mediation occurs less frequently in medical malpractice claims and more complex claims where the positions of the parties are too far apart to make a settlement possible for either side. Popular mediators are busy and often require lengthy advanced booking. This process can take upwards of 6 - 12 months.
A pre-trial is a mandatory meeting with a judge and the parties to the lawsuit. The court will not allow you to have your case tried unless your matter has been through a pre-trial. Pre-trials are booked with the court once a trial record is filed. It is generally not possible to file a trial record until discoveries (and mediation in some jurisdiction) have been completed. Expert reports also need to be exchanged 90 days before the pre-trial so most lawyers will want to ensure that they have finalized their expert reports before requesting a pre-trial date. The time from requesting a pre-trial to getting one varies jurisdiction to jurisdiction but it can often take 8 - 12 months.
The vast majority of cases will have settled at some point along their way to a trial, but for those that have not, the trial is the final destination for your lawsuit (subject to any appeals, of course). Civil lawsuits are not given the same priority as criminal matters in our legal system, so for most courthouses civil trials are only heard in the spring or fall, with some exceptions. Given the scarcity of judicial resources, trial dates even when given are not guaranteed. It is not unusual for the court to adjourn a trial date due to a lack of judicial resources. A civil case could sit waiting on a trial list for 12 - 24 months before being reached.
The above timeline illustrates how involved the civil litigation process is for anyone seeking compensation for serious injuries. Even relatively straightforward cases will often have to progress to discoveries before a reasonable settlement opportunity can be reached. In some cases, particularly slip and fall claims, a settlement can be reached directly with an insurance adjuster before the initiation of a lawsuit.
Medical malpractice claims on the other hand invariably go through discoveries and exchange of expert reports before there is any hope of a settlement, and even then, these cases are hard fought and find themselves at or near a trial more than any other type of personal injury claim.
For uncomplicated claims, I usually tell clients that from start to finish, it can take 18 – 24 months before a real settlement opportunity may arise. Given that for most people you will need at least this amount of time to recover from your injury to properly assess your damages, this works out well enough. For complicated claims, I tell clients it can take upwards of 3 – 5 years before the case may reach trial or a late stage settlement.
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