Do I Settle or go to Trial? Part 2 in a series.

I. Proceed to Trial.

Much of this is going to sound negative. It is not intended to scare you or to persuade you not to continue with the law suit. It is important for a client to be fully informed and to understand all the time, risks and costs of litigation a case in today’s legal environment.

I just don’t want you in 2 or 3 years from now say: “Howard why didn’t you tell me how long a case can take and how expensive it can be?”

The “going to trial” portion of this guide is assuming that there is sufficient insurance coverage available to collect a full verdict at trial. Sadly we see catastrophic cases (and death cases) where the defendant has no insurance or low policy limits. Georgia has a minimum limit of $25,000.00 for cars and $1000, 000.00 for tractor trailers. Other states have even lower minimum insurance requirements. Often times the insurance coverage is less than the medical bills. Please see APPENDIX A in this guide for a discussion concerning policy limits.

The Discovery Period

Once a law suit is filed, the initial “discovery period” is a minimum of six (6) months. The discovery period is almost always extended by the judge at least once. This period is generally 6 to 18 months.

The discovery period is the time period that each side has to send out interrogatories (written questions), request for production of documents from us and third parties (medical records, school records, employment records) and to subpoena information, to gather medical records, to depose witnesses, doctors and all experts.

The insurance company wants to delay paying money as long as they can. They can keep the money invested. They count on witnesses moving, dying or disappearing.

They believe most plaintiffs can’t afford to wait. They know something may happen where the plaintiff gets a new injury or worse.

The defense attorney is being paid by the hour and is never in hurry to resolve a case. The only way we can motivate them is for them to see we will go the distance and have the possibility of beating them and obtaining a jury verdict for an excess amount.

When discovery is over, the Judge usually holds a status conference and sets deadlines for witnesses, trial preparation and pre-trial motions.

This is the time when witnesses are deposed for purpose of trial (witnesses such as doctors who may not can appear live at trial) or out of state witnesses who are not subject to the courts subpoena powers.

Often, one side or the other files “motions” for the court to rule on.

Motions can range from what evidence is permitted (admissible) at trial or even motions for summary judgment (to dismiss or throw out the law suit on legal reasons.

Motion to Dismiss the Case on Legal Issues or Grounds

Should a motion to dismiss our case on legal grounds (called “a motion for summary judgment” (MSJ)) be ruled on by the court.

Such legal issue can sometimes go on appeal, before a trial.

Appeal Before Trial

An appeal will delay the trial. An appeal to the court of Appeals averages 18 months (12 to 24 months).   It can also go to the Georgia Supreme Court.

If we lose a MSJ we have an automatic right to appeal. Should the other side lose the MSJ it is in the Trial Judge’s discretion if they can appeal or wait until the underlying trial is over.

Should either party lose in the court of appeals, they can apply with the Georgia Supreme Court for an appeal to the Supreme Court. An appeal to the Georgia Supreme Court averages 18 months (12 to 24 months).

Motions to dismiss a case for legal reason are usually filed at certain time points in a case. They can be filed pre –trial (MSJ), at trial at the end of presenting our case (motion for a directed verdict) and again after the Jury rules (JNOV or Judgment notwithstanding the verdict).

After Discovery – Set a Trial Date

At the close of discovery, the Trial judge will schedule the case for trial. This time period is dependent on the Judge’s case load and calendar. It varies by county and by Judge.

Appeal After Trial

If any legal mistakes are made at trial either side can appeal the verdict. The Appeals period can take 12 to 18 months for each Appeals Court.

If we win on Appeal, the jury verdict would stand. We may be entitled to recover some post judgment interest against the defendant.

If we lose on a post-trial appeal we may have to retry the case (ie start all over).

Collecting a judgment against a defendant involves post judgment legal process such as levies (seizing property) garnishments (liens against checking accounts) and other procedures. Many times these collection efforts can be blocked by the defendant filing bankruptcy.

Bankruptcy will not stop the collection of punitive damages awarded by a jury. Unless the case involves the defendant being under the influence of alcohol or drugs punitive damages in Georgia are capped at $250,000.00. Awards of punitive damages are taxable to the plaintiff.

Watch for our next blog on “TRIAL”

This blog is one of a series of blogs on settlement vs Lawsuit.

Please stay tuned.

Make it a great day!

Howard Spiva

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The Justice for Children Foundation
Children’s injuries are no accident

Trial Lawyers
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