The Legal Process for Child Injury Claims - Part Two

It is a dangerous practice to wait to settle a claim or file a lawsuit right before the statute of limitations period expires. If a lawsuit is filed right before the deadline and if the defendant cannot be found, or if the wrong defendant is served, the case could be dismissed and the plaintiff gets nothing. For this reason, it may be prudent to hire an attorney well before the statute of limitations expires. Many attorneys will refuse to accept a case when the statute of limitations period is about to expire because there may be insufficient time to investigate the case, file suit and locate and personally serve the proper defendant.

After the lawsuit is filed and the defendant is served, both sides participate in a process of asking for and exchanging information about the case. This process is called discovery. Each side is allowed to investigate what evidence and witnesses may be introduced at trial. The discovery process may entail sending or answering written questions (called interrogatories) and requests for production documents and other tangible materials that are relevant to the case. In cases involving minor children, the defendant's attorney will be allowed to access the child's medical and school records.

The discovery process may also include a deposition. A deposition is a face-to-face meeting where the attorneys are allowed to ask a witness questions under oath while a court reporter transcribes the session. Any witness that may offer testimony at trial can be deposed, including the plaintiff, the plaintiff's doctors, and the plaintiff's friends and family. In cases involving the deposition of a child, certain conditions may be requested by the attorney and ordered by the court. The purpose of these conditions may be to implement certain safeguards and limitations for the protection of the child, like how long the deposition will last, what subjects may be inquired into, and where the deposition will take place. The attorney should speak to the child and the child's parents and guardians about what to expect at the deposition. The guardian and/or parents will usually want to attend the deposition as well. The deposition is a very important legal proceeding that should involve preparation with the attorney and the person or child who is going to be deposed.

The discovery phase may also include a request by the other side that the child submit to a medical examination, or a psychological or neuropsychological evaluation, or all three. When a lawsuit involves a claim for personal and psychological injuries, the law permits the defendant to use a doctor or psychologist chosen by the defense to examine and evaluate the injured person. This can be a very stressful event, particularly in cases involving children. The attorney representing the child will want to make sure there are certain safeguards and limitations in place before the examination goes forward. Oftentimes those conditions may be contested by the defendant's attorney and this will necessitate a judge to decide the matter. Sometimes these conditions may include having the examination videotaped, allowing a representative for the child to attend the exam, as well as other conditions to make sure the exam is fair and does not unduly burden or distress the child. For instance, in my office we have a fairly specific stipulation that must be signed by the defense attorney which imposes several conditions and restrictions on how the examination may proceed.