Outline of a Lawsuit – Part 8 – Starting a Lawsuit

As an attorney practicing Personal Injury law for over 25 years (and representing persons injured in accidents related to automobiles, slip and falls, construction accidents, premises liability, trip and falls, motorcycle accidents, and other types of accidents, I have always had a Game Plan for my clients.

Plan “A” is to try to resolve the claim prior to filing a lawsuit.  This has been discussed in earlier blogs, but basically the plan is to present all proofs, including medical and hospital records, photos, etc., to an insurance company to attempt to settle a claim.

Plan “B” (as previously discussed) is to engage in Alternate Dispute Resolution (“ADR”) in the form of mediation or arbitration.

Plan “C” is used when all of the above items do not result in a positive outcome.  The reason Plan “C” is the last of the three is because of the cost of litigation, the time that it takes to file your “Note of Issue” for a jury trial, and the random and uncertain outcomes of a jury trial.

However, there are occasions when filing a lawsuit should be Plan “A” – especially when the client has been seriously injured and the liability issue is in favor of your client. If a client has been so badly injured as to be unable to work and support their family, then filing suit immediately is the proper option.

The first question is venue, i.e., what courthouse will best serve your client for the purposes of trial.  It is not an exact science, however selecting the proper venue hinges upon what county has the jurors that would be most sympathetic to your client’s situation.  Venue is generally based on the residence of any of the parties (or county in which a corporation has its principal place of business).  We look to public records (police reports, property records) to locate this information.

Selecting a county that is known to be more favorable to injured persons is vital to the strength of your client’s case.  If you are in a venue with jurors that classically frown upon lawsuits, then you should elect to choose a venue (if available) that will look upon your client in a more sympathetic way. We often say that in New York City, that the Bronx and Kings are excellent venues for plaintiffs and Nassau, Suffolk, and Westchester are the preferred venues of defendants.  Again, this is not a steadfast rule – especially if your client is severely injured and the defendant is 100% responsible for the accident.  However, in cases in which the parties dispute any issue of liability or the extent of the injuries (“damages”) then there is uncertainty as to the outcome (unless you have a crystal ball!)

In the next blog, I will explain what a “Summons and Complaint” is and how to effectuate the service (or delivery) of this legal document.

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