Evidentiary and Dispositive Motions

In this series, we’re looking at the timeline for a personal injury lawsuit, so that you know what to expect and can work more effectively with counsel.

So, you’ve filed your complaint and the defendants have all answered in a timely manner. Settlement efforts were unsuccessful, so you conducted depositions, obtained copies of all relevant documents, examined any physical evidence and submitted and responded to all interrogatories. There’s still much that needs to be done before you’re ready to go to trial.

It’s important to understand that court dockets are full, trials can be time consuming, and judges have a vested interest in streamlining the process, should a case actually go before a jury. With that objective in mind, the next phase of a personal injury lawsuit involves proceedings in court designed to either eliminate the need for a trial, pare down the issues that need to be addressed at trial, or resolve issues that are best taken care of outside of the hearing of the jury. This is done through the use of two types of motions—dispositive motions and evidentiary motions.

Dispositive Motions

The purpose of a dispositive motion is to either resolve a claim or eliminate the need to resolve an issue. Dispositive motions may be filed by either party. An injured party may contend that, based on all the evidence gathered during the discovery process, the defendant has asserted no valid defense, and the plaintiff should be granted relief without the need for a trial. A defendant, on the other hand, may allege that the injured party has not produced evidence to support one or all of the claims made in the complaint.

Evidentiary Motions

During the discovery process, the rules of evidence are somewhat more lax than they are at trial. Evidence that would be inadmissible at trial—perhaps as opinion or hearsay—may be allowed during a deposition. If there’s a dispute as to the admissibility of any evidence obtained during discovery, those disputes are best resolved outside the earshot of the jury. Accordingly, any evidence objected to during discovery can be reviewed by the court before trial and ruled admissible or inadmissible. If the court concludes that certain evidence is not appropriate and a party introduces it anyway, it can be the basis for contempt of court and a potential mistrial.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 / 856-600-HURT to schedule an appointment.

We handle all personal injury claims on a contingent fee basis. We won’t charge any attorney fees unless we recover compensation for your losses.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

Filing the Complaint | The Discovery Process

When you have been injured because of the carelessness or negligence of another person, one of the first things you want to do is contact an attorney and initiate a personal injury lawsuit. You may be unable to work and without any income to meet your financial obligations. Unfortunately, a personal injury lawsuit is a process, one that can take months or years to complete. This series of blogs helps you understand the process, so that you can work more effectively with your attorney, and can make good decisions about how you want to proceed.

Initiating Your Lawsuit

A personal injury lawsuit begins when you file a complaint with the appropriate court. You’ll need to file your complaint within the specific period of time—what is known as the “statute of limitations.” But you’ll want to file your lawsuit without unreasonable delay, but it’s also in your best interests to do so. Memories can fade and witnesses can disappear. The sooner you file your lawsuit, the sooner your attorney can start to gather and preserve all relevant evidence.

Once you’ve filed your complaint, and served all defendants with a copy, the defendants have a specific period of time to file an “answer,” either admitting or denying the allegations in the complaint. In most jurisdictions, that’s 30 days. If a defendant fails to file an answer in a timely manner, you can ask the court for a default judgment, which will typically be enforced absent significant extenuating circumstances.

The Discovery Period

If the defendant(s) all answer in a timely manner, the court will next schedule a first meeting, where the judge will learn a little bit about the case, and will most likely explore the possibility of settlement before trial. In some instances, the judge may actually require that you try mediation or some alternative method of dispute resolution, so that trial can potentially be avoided.

At that first meeting, the judge will typically establish the “discovery” schedule. Discovery is a legal term that refers to the gathering of evidence, which is typically done through:

• Depositions-Oral examination of witnesses by attorneys for all parties, transcribed by court reporters
• Requests for production of documents and physical evidence, so that all parties can examine
• Interrogatories—Written questions to parties that must be answered in writing and delivered by a certain date. The court customarily establishes limits on the number of interrogatories

Depending on the complexity of the case, the court may establish a discovery period of a few months or even more than a year.

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 / 856-600-HURT to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home or the hospital, if necessary.

We handle all personal injury claims on a contingent fee basis. We won’t charge any attorney fees unless we recover compensation for your losses.

In this series, we’re looking at what you must prove in court to successfully prosecute a personal injury claim based on a legal theory of negligence. In our first blog, we considered the standard of care in a personal injury claim. In our next blog, we’ll look at what constitutes “actual loss.” This blog examines the causal connection between the careless act of the defendant and any damages incurred.

Under the law as it has developed, you must prove two different types of causation to demonstrate negligence—actual, or but for, cause; and proximate cause.

Actual Cause

First, you must show that, had the defendant not breached the duty to act as a reasonable person, the accident would not have happened. In instances where there’s only a single cause, this is typically a simple process—either the defendant’s negligence caused the accident or it didn’t. But the matter can get pretty complicated when there are multiple defendants, or when the injured party contributes in some manner to the cause of the accident. Suppose you are injured in a motor vehicle accident, and it can be proven that, had the defendant not been speeding, he would have been able to stop in time to avoid hitting your car. If the defendant can show that you failed to stop at a traffic light or sign, there can be issues of actual cause.

Proximate Cause

Even if you can show actual cause, you cannot recover damages unless you can also demonstrate proximate cause. This requires that you prove that the damages you suffered were “reasonably foreseeable” based on the negligence of the defendant. It’s referred to as proximate cause because the injuries you suffer must be “proximate,” or close, to the wrongful conduct. You can’t be held responsible for any loss that can conceivably be tied to your negligence. For example, if you run a stop sign and hit another car, it’s reasonably foreseeable that there will be property damage, as well as personal injury to anyone in the car. However, if you cause the other car to careen into a building, which starts a fire, it may not be reasonably foreseeable that five buildings and their contents will be lost because you ran a stop sign.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 / 856-600-HURT to schedule an appointment.

We handle all personal injury claims on a contingent fee basis. We won’t charge any attorney fees unless we recover compensation for your losses.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

This blog is the last in a series examining what you must prove to successfully recover monetary compensation in a personal injury lawsuit based on negligence. In earlier blogs, we looked at the breach of the duty of care, as well as the required causal links in a negligence claim.

The Requirement of Actual Loss

Let’s assume you are waiting to make a right turn at a stop sign and take your foot off the brake for a second. The person behind you gives it a little too much gas and taps the back of your car before you pull out. You don’t feel any physical discomfort and never seek medical treatment. You look at your car, but can’t make out a scratch.

Do you have a claim for negligence? The other driver clearly breached the duty of care—a reasonable person would not pull forward until his or her pathway was clear. In addition, that breach of duty caused an accident—there was contact between the vehicles. But you won’t be able to pursue a personal injury claim, because you can’t show actual loss.

In negligence claims, there are generally two types of damages—compensatory and punitive damages. Punitive damages are intended, as the name suggests, to punish the defendant. They typically require egregious conduct by the defendant and are rarely granted. All other damages are compensatory—designed to reimburse or compensate you for past, present or future losses. Those losses can include expenses incurred, physical injury, or the diminution in value of property. If you can’t show any of those consequences, you can’t show actual damages.

Another instance where you won’t be able to show actual loss is if the loss is covered or paid for in some other manner. If you have insurance, workers’ compensation benefits or some other way that you have been reimbursed for the loss, you can’t recover again—you’ve already received compensation for the loss.

Contact Us Now

Don’t run the risk that evidence will be lost— contact us online or call our office today at 856-667-4666 / 856-600-HURT to schedule an appointment. Your first consultation is free. We are available evenings and weekends upon request. We’ll also travel to your home or the hospital, if necessary.

We handle all product liability claims on a contingent fee basis. We won’t charge any attorney fees unless we recover compensation for your losses.