When I sit down with clients at the beginning of a case, everyone wants to know two things:
1. How much is my case worth?
2. How long is it going to take?
The reality of the matter is that few lawyers would ever give you the firm answer you are looking for, for one important reason: nobody knows. Every case has issues that crop up during the course of litigation, and most of the time, when you sign up a case, you are only hearing one side of the story. All of those factors contribute to the uncertainty about how long a case might take.
What to expect in my case?
I decided to write this blog as an overview of what you can expect in litigation. Every case will follow its own path, and your case may not go through all of these phases. Generally, these are the stages of an insurance bad faith case.
While this is the obvious first step, it should not be taken lightly. Before I can file suit on your case, I have to make sure that we have investigated the facts that are available. Spending a little bit of time at the beginning may save a lot of time, expense and heartache and the end of the case. Here are the things I generally want to see before I file suit:
- Your insurance policy
- The correspondence between you and the insurance company
- The denial or explanation of the payments that were made
- The estimates prepared by the insurance company
- Estimates or at least an understanding of what needs to be done to repair the damage
Once the lawsuit is filed, the lawsuit must be served on the Defendants. Service can occur in a number of different ways, but typically a private process server will mail or deliver by hand a copy of the lawsuit to the defendants. Once the lawsuit is filed, the law allows the defendants 3-4 weeks to hire lawyers and file their answer, which responds to the allegations in the lawsuit filed by the plaintiffs.
Docket Control Order
One of the things that clients find surprising about litigation is that the lawyers don’t control all of the deadlines. Once the defendants file an answer, many courts will issue a scheduling order, or Docket Control Order. The Docket Control Order will set out important deadlines, like when certain kinds of motions must be filed, when discovery must be completed, and most importantly, the date of the trial setting.
A case filed in Harris County will typically see a trial setting nine months to a year away.
Discovery is a process that allows the parties to a lawsuit to ask questions and make requests for documents to the other side. In an insurance case, you will typically send out (and answer) interrogatories, requests for production and disclosures.
- Interrogatories – these are questions that require sworn answers. The answers to these questions may be used in court, just like testimony from the witness stand.
- Requests for Production – these are simply requests for documents from the other side. In an insurance case, you can expect to see requests related to the damages being claimed, the history of the property, maintenance records and repairs receipts and invoices.
- Disclosures. There are certain types of information that you can request that the other side answer automatically, without objections. These requests include the proper names of the parties, a calculation of damages, the names and contact information for persons who may know about the facts of the case, insurance policies that provide coverage and settlement agreements between the parties.
Once you have obtained documents, the next step it to begin taking depositions. Depositions are taken under oath, and the party testifying is asked questions. The answers to these questions may be used in court, and a witness’ answers may be used against them if they testify differently later. This concept is called impeachment and creates a big penalty for lying under oath.
The law requires that the parties provide evidence to support their claims in court. One way that lawyers present evidence is through experts, who are hired to explain complicated issues to the jury. The parties can depose expert witnesses before trial to determine their opinions and to explore how they reached those conclusions.
The vast majority of cases settle before trial for one critical reason: money. Getting to trial is time-consuming and expensive, and the costs of litigation can easily cross six figures through the end of trial. When a case goes to trial, a jury of twelve people will hear the evidence in the case, as well as the arguments of the lawyers. Then the jury will consider what they have heard, or deliberate, then reach a determination. That determination is called a verdict, and it represents the findings of the jurors.
Once a jury makes a determination, the case is not always over. The losing side may also file an appeal, asking for another court to reconsider the evidence and the rulings of the Judge during the trial. Appeals can also be time and cost intensive.