The following is a brief guide to your rights and the claims process. If you have additional questions, please visit our contact page here or call us for a free, no obligation, consultation at 231.929.9700.
The Legal Claims Proces, The Progression of a Typical Claim
- Claims: Notice Required
- Facilitative Mediation
- Case Evaluation
The Claims Process
Handling a serious claim may require patience, but modern lawsuits probably take less time than you think. After the initial investigation, the steps are set by the Michigan Rules of Court and the court, having jurisdiction, will manage the related deadlines.
Your lawyer has a duty to fully investigate the facts and research the law to assure you have a valid claim before advising you to file suit. While an investigation can be very expensive, we never turn away people who have a meritorious claim because they cannot afford the cost of investigation; normally we pay it.
In most circumstances, we will gather extensive records, interview witnesses and consult with relevant experts in order to evaluate what caused an injury and who might be at fault. We normally order medical records and related police, weather or public records and talk to important witnesses. We sometimes exchange information with the responsible insurer(s) and commence negotiations if the adjuster is cooperative. Very often, valuation of your claim must await medical developments, stabilization and a reasonable prognosis.
In some situations, the courts require that written notice of a potential claim be sent to a potential defendant within 60 or 90 days of an occurrence. This notice requirement is particularly demanding in cases involving defects in public roads or buildings or in cases involving illegal alcohol sales. In medical malpractice, the defendant must be advised that suit is pending six months before the complaint can be filed. The notice to the medical care provider must specify, in great detail, exactly what he or she did wrong and how it injured the patient. As noted above, private insurers may require notice within 30 days of injury. Sadly, to be safe, families probably need to talk to a lawyer expert within weeks of an injury in order to be sure their rights are pursued.
If after the investigation we decide together that it is appropriate to file suit, we will prepare a Complaint to be filed with the court. The complaint states the facts of the incident, the legal theory, and makes a demand for damages or relief.
In medical malpractice claims, the Complaint must be accompanied by Affidavits of Merit from doctors with very particular credentials, attesting to the breach of the standard of care and your resulting damages.
Once the complaint is filed with the court, it must be properly "served" or delivered to the defendant. This can be done by mail or in person, depending on the circumstances.
After being served, the defendant has approximately 28 days to file an answer with the court. The answer will state the defendant's position and any defenses. Frequently the answer is simply a collection of "boilerplate" allegations and self-serving nonsense from the defendant having very little to do with the actual case.
After the answer is filed, the parties will begin the "discovery" phase of the lawsuit. Typically discovery consists of five distinct phases:
Usually within a few months, the court will hold a pre-trial conference, and set strict deadlines for the lawyers to disclose the names of witnesses, finish discovery and exchange information. Normally the court will also set dates for facilitative mediation, case evaluation and trial. You usually are not required to attend any procedure other than the facilitative mediation, but you will be advised of all hearings and events and are always welcome to attend.
Facilitative mediation is now routinely ordered by most courts. It is a process where the parties and their attorneys meet with a trained facilitator in an effort to settle the case. The facilitator remains neutral and attempts to resolve the parties' differences in an informal setting.
Case evaluation is a process designed to help settle cases and one which is required by some courts. After about six to eight months (usually on the eve of trial), the parties are ordered by the court to meet and present their case to a panel of three neutral lawyers. In advance, the panel must be provided with written case summeries and exhibits prepared by their lawyers. Testimony is not allowed; you need not attend; the lawyers argue their clients' positions; then the panel meets in private and recommends an award. The process usually takes less than 90 minutes.
Within 28 days, each party must accept or reject the panel's recommendation. If all parties accept the case evaluation award, the case is settled. If a party rejects the recommendation, that party must do better than the rejected award at trial, or pay significant penalties. About 95% of all civil cases settle before trial - usually after facilitative mediation or case evaluation. (And after significant expense and effort have been incurred to demonstrate your capacity to prove your case and document your damages.)
After facilitative mediation and case evaluation, settlement negotiations may continue and the court will usually meet with the parties to urge settlement. If trial is necessary, it will occur one to four months later at the discretion of the judge and the court administrator. A trial focuses on these basic issues: liability (or fault), causation (the connection between the alleged fault and the injuries suffered), and damages (monetary compensation). Usually, the existence or amount of insurance coverage and any settlement negotiations are not admissible. The jury doesn't know if the defendant has insurance or how much.
The trial begins with the lawyers selecting a jury of six persons, after first questioning them about possible biases. All of the lawyers then make opening statements to the jury, explaining to the jury what the case is about. Next, the plaintiff presents her or his entire case.
Witnesses are placed on the stand in a sequence that will provide the jury a logical story of what happened, why the opposing party is responsible, what the injury is, and what the damages are. Then the defendant presents her or his entire case. The victim may call a witness or two to "rebut" the plaintiff's claims. After the cases are presented, the lawyers sum up their case and argue to the jury why their client should prevail. These summaries are called closing arguments.
Finally, the judge will instruct the jury about the law and the jury will meet privately to reach a verdict.
Each party has the right to appeal a jury's verdict. A judgment must be appealed fairly quickly, but the appeal process itself can often take years. The client has no direct role in the appeal, although settlement and compromise discussions may continue between the parties and lawyers during this process. After the Court of Appeals has responded to the claim of appeal, the losing party may ask the Supreme Court to consider overturning the decision: that appeal is not guaranteed.