The Legal Process for Child Injury Claims - Part Three

Depending on which county the lawsuit is filed in, the discovery phase can take many months or sometimes more than a year. When discovery is completed, and each side knows what evidence will be offered at trial, this is the time when the parties may conduct settlement discussions. Sometimes the parties will engage in alternative ways to resolve the case, like mediation. In mediation, the parties agree to hire a retired judge or an experienced attorney who will assist the parties in reaching a settlement. Mediation is voluntary and nonbinding (unless a settlement is reached). A mediation session is also confidential so anything that is said during the session cannot be used at trial. Many times mediation can be used to successfully resolve a case involving children. Mediation sessions can occur in one day or last several days, depending on the complexity of the case.

The settlement of a child's injury case also requires court approval. A Settlement Guardian ad Litem (SGAL) must also be appointed by the court (please refer to Chapter 7 which explains the settlement process for child injury claims). It may be advantageous to appoint the SGAL early in the case so this person can be fully apprised of all developments during the course of the litigation. Sometimes it may be advantageous to have the SGAL attend and/or participate in mediation to assist the attorney in settlement talks.

If the case does not settle after discovery has ended, the case will then proceed to trial. Each side has the option of trying the case before a judge or jury. A jury trial does not happen automatically. One party must specifically request that the case be decided by a jury as opposed to a judge. Most often the defense will request a jury. This is accomplished by filing a document in court called a "jury demand" and then paying a "jury fee" to the clerk. The court rules usually require that certain documents must be filed and exchanged within 30 to 60 days before the trial date. These documents may include witness and exhibit lists, motions, trial memorandums, and jury instructions, among others.

Understandably, most parents want to avoid going to trial in their child's personal injury case. Trials are stressful and can cause additional anxiety for everyone involved. Usually a trial is the last resort to resolve the child's case. Oftentimes the insurance company will not want a serious or significant child injury case to go to trial, particularly when there is no serious dispute about fault for the accident and the severity of the injury. However, some the insurance companies have a reputation of utilizing "scorched earth" litigation tactics by needlessly forcing and prolonging the litigation process in an effort to wear down the attorney and force a smaller settlement. Sometimes this will include forcing an unnecessary trial, particularly if the insurance company is convinced that the child's attorney has little experience in trying accident cases in court. Usually, it is only by threatening and preparing for trial that the child's attorney will be able to secure a reasonable and just settlement offer for the child. This is why it is extremely important that the parent retain an attorney who has experience trying cases in court. You don't want to use a lawyer for a serious injury case only to find out a few weeks or months before trial that the lawyer has either never tried a case in court or that the lawyer is afraid to try the case. In those situations, it may be too late to hire another attorney to take over. Many of the most experienced and reputable personal injury attorneys who handle children cases may refuse to take over a case so late in the process, especially if the trial date is only a few months away. Of course, there may be exceptions but this is usually a situation for parents to avoid.

A trial will also necessitate a decision about whether the injured child should appear and/or testify in court. Not every case requires the testimony of the injured child. There are strategic reasons for and against having the child testify in court. The primary consideration has to be the health and best interests of the child. If testimony in court will cause too much stress and anxiety, then an alternative is to videotape the child's testimony outside of court and then show the video to the jury. Each case is different, and the decision will rest on the specific facts of a case and the attorney's judgment on what course of action is best.