Birmingham Injury Blog

Depositions are a critical part of an Alabama injury lawsuit such as a car wreck or products liability type of case. Depositions are a part of discovery but are the only type where the party (plaintiff or defendant) is required to answer without help from their attorneys.

When?
Depositions take place after the lawsuit is filed and normally after written discovery has been exchanged. Normally both the plaintiff and defendant are deposed the same day in a car wreck case - bigger cases (truck wreck, product liability, medical malpractice, etc) typically involve longer depositions so the depositions will take place over a period of days.

Where?
Normally at either your lawyer's office or the other lawyer's office. Sometimes its just a matter of space (for example in our current office we have only one conference room - when we move at the end of June we will have multiple conference rooms) or other times its just a matter of convenience. Rarely will a deposition be taken outside of a lawyer's office - I took one in a judge's courtroom as the trucking company planned on objecting to every question so we wanted a judge close by....

How long?
Depositions in small car wreck cases normally only take a couple of hours. Other cases may take longer. Some lawyers and I were deposing an executive from Europe - we deposed him for an entire week. That's unusual though - normally a full day is about the longest for most cases.

What are the rules to make sure telling the truth?
We have covered this before so feel free to click on these links:
1. Make sure you hear the question;
2. Make sure you understand the question;
3. Think about what is the truthful answer; and
4. Only answer the question asked - no more.

Conclusion
Depositions are very important in an Alabama injury case. We have only focused on depositions of the parties and will cover other types of depositions in another post (doctors, etc) as well as more tips on how to take, defend, and give a deposition. We hope this has been helpful to you and feel free to contact us through our blog (to the left is the contact us form) or you can call us at 205-879-2447.

(Our next post in this series will focus on motions for summary judgment - where a party is trying to get the judge to go ahead and rule on some or all issues in the case rather than a jury deciding those issues).

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In our last post we discussed discovery in general and in this post we will address written discovery specifically.

Written discovery normally includes the following:
1. Request for admissions;
2. Request for production of documents;
3. Interrogatories; and
4. Subpoenas.

Request for admissions are very useful in nailing down specific facts that you then do not need to prove through other means such as depositions. The basic idea is you take single facts and make the other party answer either "admit" or "deny" to each single fact. If the answer is "admit" then the fact is established for this litigation against the party that admitted it. If the answer is "denied" and you ultimately prove the fact, then you can recover your expenses and attorney fees related to your efforts to prove this fact that should have been admitted.

Here is an example of a request for admission: "Admit or deny that at the time of the wreck on January 1, 2009, you were using your cell phone."

Either the other party will admit it, thus saving you time and effort in subpoenaing phone records or asking deposition questions or if the party denies it and you prove it is true, the other party may be on the hook for your expenses and fees in proving this.

Request for production of documents require the other party to give to you documents and other tangible items (CDs, tapes, maps, emails, etc). These are very important to use as you need to know what documents the other side has to be prepared in your case.

Here is an example of a request for production: "Produce all documents related to training of the defendant truck driver by you prior to the wreck made the basis of this lawsuit."

Interrogatories are similar to what the word sounds like - interrogation. They allow you to interrogate the other party by written question to find out what the other party knows.

Here is an example: "State in detail when you first became aware that the Plaintiff's vehicle was stuck on the railroad tracks and state in detail every action you took from that moment until the collision."

Subpoenas are discovery devices that are used against non parties. These are normally used to gain documents from a non party. The most typical example we see in an Alabama injury lawsuit is a subpoena to a doctor for all of her medical records related to the plaintiff.

Written discovery is not as "glamorous" as taking depositions. Lawyers typically do not brag about the skill they used in drafting request for admissions like they do about destroying a witness in a deposition but often what allows for a wonderful deposition is superior written discovery.

Our next post will cover depositions in an Alabama injury lawsuit.

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Discovery is just what the word implies. It is a chance for both sides to discover what evidence the other side has to support their case. During this process, each side submits questions to each other to obtain that information.

These questions are in the form of Interrogatories (written questions trying to discover what facts a party has) Requests for Documents (written questions trying to discover the documentation a party has to support his or her case) Requests for Admissions (questions designed to narrow the facts in dispute by getting the other party to either admit or deny a specific fact) and depositions (oral questions where parties or witnesses testify live and under oath as to what facts they know).

The absolutely most important thing about answering discovery is to be as complete, accurate and truthful as you can be. While most people wouldn't lie under oath, some people do get caught up in exaggerating what happened to make their case seem a little stronger. This will usually backfire. The lawyers for the other side will be prepared and will know if you are exaggerating. As lawyers are trained to do, they will then turn this on you to make you look like a liar. We have seen more good cases lost or severely diminished in value due to mistakes like this.

There are a lot more specifics for each type of discovery that are beyond the scope of this article. But, the important thing is do not ever put yourself in a position where what you say could be interpreted as anything other than the truth. Stick to this and you should come out ok.

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After a lawsuit has been filed and the defendant has been served, the defendant may challenge the lawsuit solely on the allegations in the complaint and ask the court to throw the lawsuit out of court, or to dismiss the lawsuit.

In layman's terms, the defendant is saying to the court that even if you assume everything in the plaintiff's complaint is true, you should still throw it out because the plaintiff has not stated a claim against the defendant.

There can be several reasons for this dismissal. Some examples are that the plaintiff may have not plead a proper legal action, the facts as plead by the plaintiff, even if proven, could never result in a verdict for the plaintiff, there may be a legal defense, such as statute of limitations, which would prevent the plaintiff from winning.

Under the law, dismissals are held to a high legal standard and most cases, assuming they are plead correctly by a knowledgeable attorney, will not be dismissed at this stage. All facts are assumed to be true as plead and all inferences are taken in favor of the plaintiff. In most cases, "notice pleading," pleadings that simply put the defendant on notice of the nature and basic facts of the claim will be enough to get past the Motion to Dismiss Stage.

If the court denies the Motion to Dismiss, the defendant will then have to file an Answer to the Complaint.

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After you have filed an injury lawsuit and served the defendant, then the defendant has 30 days (14 days if you file in state district court) to file an "answer" or file a "motion to dismiss".

Let's start with an answer. In the typical car wreck or truck wreck answer, the defendant will deny virtually all of the allegations you made in the complaint. This is not always proper (a subject for a future article) but this is standard and it means that the defendant is saying, in essence, "prove every part of your case".

The answer will also contain "affirmative defenses" that say even if the defendant was negligent or reckless in driving the car or operating a semi truck, because of the affirmative defense you lose. Here are some examples. If you sue outside the time period allowed (generally two years) then a defendant could truly be negligent but because of a statute of limitations defense the defendant would win the case. Or in Alabama we have contributory negligence which means that if you are in any way at fault, you generally cannot recover even if the defendant was 99% responsible for your injuries. There are numerous other affirmative defenses that are typically alleged by the defendant.

For right now the important thing to keep in mind is that the defendant will raise affirmative defenses and that the defendant bears the burden of proof on these defenses. The truck driver must prove, for example, that you were contributorily negligent or whatever other affirmative defense the truck driver has pled to escape getting hit with a verdict.

We'll close with a motion to dismiss. These are not as common in injury cases as in fraud or other types of litigation but they do come up. Basically what the defendant is saying is that the court can look at your complaint, accept everything in there as true, and then apply the law and the only result possible is that you lose. As you might imagine, this is a high standard to meet and should not normally be a major hurdle for you to overcome.

In our next post we'll discuss what a judge does with a motion to dismiss. As always, we hope these posts are helpful to you and feel free to contact us through this blog if you have any questions.

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We previously discussed filing the personal injury suit and now we come to serving the defendant with the lawsuit. Once the lawsuit is filed, the defendant needs to be served in order for the time to start running for the defendant to answer the suit.

The constitution requires that defendants be given due process of law and this means (in our context) that the defendant must be served with the lawsuit. It would be fundamentally unfair for the defendant to NOT be served and a judgment be entered against the defendant for failing to answer the complaint.

What are the primary ways a defendant is served with a lawsuit? First, certified mail is sent to the defendant or someone who is authorized to accept service on behalf of the defendant. For example, in a trucking case the trucking company normally has an "agent for service" which is an individual or company that we can send the lawsuit to and this will cause the defendant to be served. Usually, this is a company in Montgomery whose primary purpose is to receive lawsuits and notify their customer the defendant.

A second way of being served is by personally having the Sheriff’s office or other appropriate person hand deliver the lawsuit to the defendant.

A final way is the rare procedure of service by publication which is where a defendant that is avoiding service can be deemed served by a written publication in the Alabama Messenger or other newspapers that the law presumes the defendant will read. The basic gist behind this is that if someone is avoiding service then giving notice to the world through the appropriate newspaper is sufficient and complies with due process.

There are many other details of service that we could cover but we hope this gives you a general idea of how the process works. Once a defendant is served, they will normally have 30 days to answer the complaint or to file a motion to dismiss. We will address this next.

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After you have met with your attorney, you and your attorney will face the decision of whether and when to file the lawsuit, also called the Complaint.

First, your attorney will determine whether you have a claim that is worth filing. There are lots of things that go into this decision. In the context of a personal injury or car wreck claim, your lawyer will look to see if your claim meets the necessary criteria to make a claim. This will involve looking at a number of issues. These will include, for example, looking to see if someone else is responsible for causing your injuries; is that person viable or do they have insurance to pay a claim; are there enough facts to prove your case, does contributory negligence prevent the filing of your claim; and many others. Finally, the lawyer will need to determine if your injuries significant enough to justify filing a lawsuit.

As an aside, many lawyers will try to settle your case with the insurance company before suit is filed. This can expedite things assuming you finish your medical treatment and healing relatively quickly and can be especially good for smaller cases where liability is not disputed.

Once your lawyer has decided that it is necessary to file a lawsuit, he or she will draft the lawsuit laying out the claims. All lawsuits have who the parties are, the factual allegations of what happened, how the plaintiff has been injured, what legal theories the plaintiff is suing under (i.e., negligence, wantonness, defective product, defamation, etc) and what the injured party wants to achieve.

Once your lawyer files the Complaint, the lawsuit has begun. However, be patient. The next step is to serve the defendant. We will discuss service in our next post.

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We are often asked by Alabama injury victims what happens when they file a case. Do they immediately give a deposition? Go in front of the judge? What's the order of things that occur.

We'll hit the following topics in more detail in later posts but for now this will give you a good overview.

1. Suit is filed.
2. The lawsuit (complaint) is served on the defendant or defendants.
3. 30 days after being served, each defendant must answer the lawsuit or file a motion to dismiss.
4. If a motion to dismiss is filed, then the court will normally have a hearing to determine if the case against that defendant can proceed or if that particular claim against a defendant will be dismissed and not a part of the case.
5. If an answer is filed, then the parties can engage in discovery to learn information about each other's positions.
6. Written discovery occurs. This includes request for production of documents, interrogatories (written questions to be answered), request for admissions (questions the other side must answer "yes" or "no" to), and subpoenas to others who are not parties to the case (medical records, etc).
7. Depositions normally follow after written discovery.
8. Often one party will move for summary judgment asking the judge to go ahead and rule in that party's favor on the whole case or part of the case as no reasonable jury could rule on the issue any other way.
9. Often mediation will occur before a trial. This is where the parties try to resolve their differences with the help of a neutral person (lawyer, retired judge, etc).
10. Trial occurs.
11. The losing party can ask the judge to change his or her mind about a ruling so that a new trial can occur.
12. Appeal to the Court of Civil Appeals or the Supreme Court of Alabama.

We will take each one of these steps and provide more detail so that as you consider filing a lawsuit in Alabama you will have a good idea of the steps that happen after you file your injury lawsuit.

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