FindLaw | Find a Lawyer. Find Answers.

Most people think of a lawsuit in terms of what they see on TV: lawyers in a courtroom arguing their client's case to the jury with the judge trying to referee the contest. However, that is only a small part of the whole picture.

The first step for the client is, perhaps, the most important step: the client must choose a lawyer. That choice can ultimately be the determining factor in the outcome of the case. An experienced, skilled lawyer not only possesses the expertise to prepare a case for trial and then to conduct the trial, the skilled lawyer has the insight to recognize both the strengths and weaknesses of his or her client's case and the strengths and weaknesses of the other side's case. Ultimately, the best lawyers have the keen ability to neither overestimate the strengths of the client's case or underestimate its weaknesses.

When you are deciding on a lawyer, the number one rule is: do not be afraid to ask the lawyer questions about his or her knowledge, skill, and experience. Such questions as the number of years the lawyer has been in practice, how many trials the lawyer conducted over those years, the results of those trials, and the lawyer's experience with your kind of case, are all relevant and things to ask about.

You should also ask any other question regarding the lawyer's skill and experience that you think is reasonable. The lawyer that you are talking to should be very willing to answer all of your questions regarding why he or she is the best lawyer for your case. If a lawyer seems offended by the questions or does not have time to answer the questions, then that lawyer is probably not right for you.

In personal injury cases, it is usually a good idea to talk to the insurance company for the person or company that caused the injury in an effort to settle the case before filing a lawsuit. Your lawyer will usually contact the insurance company fairly soon after you hire him or her. However, your lawyer needs quite a bit of information before contacting the insurance company.

Some of the information that the lawyer will need before he or she talks to the insurance company will come from you. You may have some of your medical records and medical bills, for example. If not, the lawyer will need to get that material directly from your doctor or the hospital. Your lawyer may also need to talk to any witnesses in order to know exactly how your accident happened.

In many cases, especially in medical malpractice or product liability cases, your lawyer will probably need to consult with medical experts, engineering experts or other types of experts in order to know enough about your case to actually negotiate with the insurance company.

In straightforward cases where the lawyer is able to quickly obtain the necessary information, discussions with the insurance company may begin within a matter of weeks or a few months after you hire the lawyer. In more complex cases, it could take many months for the lawyer to gather the information he or she needs.

Whether it takes the lawyer weeks or many months to gather the necessary information to begin settlement discussions with the insurance company, those settlement discussions may result in your case being resolved sooner, later, or not at all without the necessity of a lawsuit. Whether your case can be settled before a lawsuit is filed depends on many things, including the complexity of your case, the seriousness of your injury, and whether the insurance company believes that you have a good case.

If your case does not settle during the course of your lawyer's discussion with the other side's insurance company, then a lawsuit must be filed. Generally speaking, lawsuits must be filed within two years from the date of the injury or death. The time within which a lawsuit must be filed is called the statute of limitations. In some cases, the statute of limitations may be different than the two years mentioned above. You should consult with a lawyer regarding your specific situation.

Once a lawsuit is filed, a process called "pretrial discovery" begins. During the pretrial discovery process, the lawyers exchange information and documents. Depositions of the people involved in the lawsuit, as well as anyone else with relevant information, are taken.

A deposition is a formal statement of a party or witness which is usually taken in one of the lawyer's offices. The lawyer who requests the deposition asks the person being deposed whatever relevant questions the lawyer wishes to ask. After that lawyer is finished asking questions, then all other lawyers who are involved in the case are entitled to ask relevant questions. Depositions in rare instances last only a few minutes or half an hour. Generally, a deposition will take anywhere from one to three hours, but the rules in Illinois do not allow depositions to continue longer than three hours unless a judge specifically approves a longer deposition or unless everyone agrees to it.

The reason that the law allows pretrial discovery is so that both sides can be fully informed as to all relevant facts. The theory is that if everyone knows all of the facts, then there will be no unfair surprise to anyone if the case goes to trial. Also, if everyone knows all of the relevant facts, then both sides can fairly and accurately evaluate their case. In that way, settlement of the case before trial is more likely.

The process of pretrial discovery can take what seems like a long time. In fact, from the date a lawsuit is filed until it actually goes to trial can range anywhere from nearly a year to several years. How long it takes a case to actually begin trial depends on a number of things.

Cases move faster in some counties in Illinois than in others because there may be fewer cases pending in a particular county or because certain judges keep cases moving at a faster pace. In other counties, the system is set up so that the trial in most cases occurs within a relatively certain length of time after the lawsuit is filed, say two to four years. Other factors that determine how quickly cases go to trial include the complexity of the case and the severity of the injury. Generally, the more complex the case and the more seriously injured the victim, the longer it will take before the case is ready for trial.

After a lawsuit is filed, your case may still settle even though settlement discussions which took place before suit was filed were unsuccessful. Once the lawsuit is filed, your case may still settle within days or weeks of the filing or it could settle right before trial. In fact, most cases where a lawsuit is filed settle at some time before trial begins.

Your case may settle after the lawsuit is filed even though it did not settle before suit was filed for a number of reasons. For example, facts that were not known before the lawsuit was filed could come to light during the pretrial discovery process. That is the typical reason for settlement after suit is filed.

If your case does not settle during the pretrial discovery process, it will sooner or later be assigned for trial and trial will begin. However, even when the trial starts there are different phases to the trial.

First, the lawyers talk with the judge to go over preliminary matters, such as what evidence can be used or when certain witnesses will testify. After that, the jury selection process begins.

During the jury selection process, the lawyers and the judge question many potential jurors in an attempt to find twelve people, or in some cases, six people, who seem able to be fair and impartial. For example, a person who believes that no lawsuit is justified would be biased against the injured person who filed the suit and would almost certainly be excluded from the jury. Similarly, a person who believes that an injured person should collect a lot of money regardless of the circumstances surrounding the accident could not be fair to the accused wrongdoer and would almost certainly be excluded from the jury.

Once the two lawyers and the judge decide upon twelve people who they think will be fair and impartial, then each lawyer is entitled to give what is called an "opening statement." The point of the opening statement is to give the jury an overall perspective of the case so that the individual pieces of evidence will make sense as the jury hears or sees them. The injured person is called the plaintiff. The person who is sued is called the defendant. During the plaintiff's opening statement, the lawyer will tell the jury what evidence he or she expects that the jury will hear and the defendant's lawyer will do the same. Not surprisingly, the evidence that each lawyer expects the jury to hear depends upon that lawyer's perspective as either the plaintiff's lawyer or the defendant's lawyer.

After opening statements by each lawyer, then the plaintiff's lawyer calls as witnesses any people which he or she thinks may be helpful to their client's case. During the questioning of the witnesses, the lawyer may present photographs or other documents and ask the witnesses about those items. When the plaintiff's lawyer is done questioning a witness, then the defendant's lawyer is allowed to cross examine the witness.

Once the plaintiff's lawyer presents all witnesses and evidence on behalf of the plaintiff, then the defendant's lawyer can present any additional witnesses or evidence. The plaintiff's lawyer is entitled to cross examine any witnesses presented by the defendant. After the plaintiff presents all of his evidence and the defendant presents all of his evidence, then the plaintiff is entitled to present any rebuttal evidence that she has.

Once all of the evidence is presented by both sides, then each lawyer is entitled to give a "closing argument." As with the opening statement and presentation of the evidence, the plaintiff's lawyer goes first in closing argument. During the closing argument, the lawyers will typically summarize the evidence as they see it, argue to the jury that the evidence is favorable to their client, and also argue to the jury that they should decide the case in favor of their client. Unlike opening statements, the plaintiff's lawyer is allowed an opportunity to argue a second time during closing arguments, after the defendant's attorney presents a closing argument, to rebut what the defendant's lawyer said.

Once closing arguments are finished, then the judge tells the jury what laws, called jury instructions, apply to the case. Once the jury is informed by the judge as to the applicable law, then the jury goes into the jury room to make a decision. During the course of the jury's deliberations, the jury members discuss both the law and the evidence and then reach a decision. A jury verdict must be unanimous.

Once the jury reaches a decision, they go back into the courtroom to inform the judge, the lawyers, and the parties as to their decision. Jury deliberations can take anywhere from a few minutes in a case where everyone on the jury immediately agrees to a decision, to hours. Most of the time, juries reach a decision within a few hours, but it is not unusual for deliberations to take five or six hours or even much longer. In some rare cases, a jury may take a day or more to decide a case.

In some fairly rare cases, the jury is not able to reach a unanimous decision. If that happens, the judge will declare a mistrial and a new trial date will be set where the trial will begin all over again with a new jury.

The length of a trial can vary greatly depending upon the type of case involved and even depending upon the judge. The trial in a very simple case which involves a jury may take only one or two days. The trial in more complex cases can run into several days or a week or more. Sometimes, trials can last several weeks or even months. Trials that last that long are rare, but they occur.

If the plaintiff wins the case, a judgment is entered in favor of the plaintiff and against the defendant immediately after the trial is over. Once a judgment is entered, the defendant owes that money to the plaintiff. In most cases that go to trial, the defendant is insured and the insurance company pays the money on behalf of the defendant.

If either party does not like the jury's decision, that party is entitled in Illinois to appeal the case to the appellate court. However, in most cases the appellate court's review of the case is limited to very specific procedural or technical grounds. The appellate court may, for example, review whether certain evidence which the trial judge allowed the jury to hear was proper.

If the appellate court decides that the trial judge made a mistake in allowing the jury to hear or see certain evidence, then the appellate court may order that a new trial take place because the improper evidence unfairly prejudiced the losing side. With few exceptions, the appellate court will not look at all of the evidence that each side presented, decide that the jury made a mistake, and declare the other side the winner.

Our system of civil justice is founded on the notion that society benefits as a whole if courts and juries resolve disputes between people if the people cannot settle a disagreement or claim among themselves. That is why no one should feel embarrassed to hire a lawyer to assert a legitimate claim or file a legitimate lawsuit. However, people frequently do not realize how time consuming and complex a legal claim can be and how long it can take to resolve a claim or a lawsuit. Indeed, it is because of that complexity that it is very important for you to hire a knowledgeable and experienced litigating attorney to assist you.

Byron L. Matten has been a litigating and trial lawyer for his entire 21 year career. He has tried many cases involving complex issues and serious, even catastrophic, injuries as well as death. Mr. Matten is a proven choice to handle your personal injury case. Please contact Mr. Matten at 630/916-2005 or E-mail him at ByronMatten © MattenLaw.com.