If you have made the decision to engage in legal action in regard to your traumatic brain injury (TBI), you may be wondering what happens next. On this page you will find answers to your questions, and a summary of the steps that you will take when filing a brain injury lawsuit. This is not an exhaustive description of all of the events and outcomes that could be a part of your brain injury litigation experience, but it will give you an idea of what to expect.

Q: What Should I Do First in a Brain Injury Lawsuit?

A: Obtain Legal Counsel

Before you file a claim, before you contact the defendant, before you make any complaints or admissions, contact an attorney. Every step of your litigation process can be critical to the end result and you do not want to make any mistakes that will compromise your ability to obtain compensation you are due. A personal injury attorney will be an expert in the type of brain injury lawsuit you are filing and can guide you through the process in the most knowledgable way possible. Fill out a contact form and submit it to LegalView to be referred to a brain injury lawyer in your city, state or region.

Q: How Do I Begin the Brain Injury Litigation Process?

A: File a Cause of Action

Step one in brain injury litigation is filing a complaint, also known as a cause of action. The cause of action states what your injuries are, the parties you believe to be responsible, how and why they are responsible, and what kind of reparations you are seeking. This cause of action must describe why the defendant in the claim is specifically responsible for your TBI. It should also explain why the court with which you are filing is the appropriate court to hear the case.

Q: Who Informs the Defendant of the Legal Action I Have Taken?

A: The Court Will Deliver a Summons

The clerk of the court with which you have filed a complaint will serve the defendant with a summons informing the defendant that you are taking legal action against him or her and designating a date by which the defendant must respond. The summons is usually formally delivered in person by a sheriff, law enforcement officer, process server, or other disinterested party. It may also be delivered to the defendant via mail in some cases.

Q: What Happens After the Defendant is Served a Summons in a Brain Injury Lawsuit?

A: An Answer or Counterclaim

When the defendant receives the summons and complaint, he or she must respond by a date that the court has specified. The defendant is likely to respond in one of three ways:

• Denial or Affirmative Defense
  The defendant may submit an answer by denying the complaint entirely. The answer may also contain an affirmative defense. An affirmitive defense means that the defendant acknowledges the injury, but is defending his own liability by stating that the injury occured by means that did not relate to his own negligence or misconduct. An example of this might be that the defendant's answer states that the injury was due to the plaintiff's own negligence or misconduct instead of that of the defendant.
• Motion to Dismiss
  The defendant's answer may contain a motion to dismiss the case based on the plaintiff's failure to state a valid cause of action. For instance, the cause of action may have stated that a TBI was sustained, and that it was sustained as a result of the use of a certain product, but did not specify how the defendant's actions related to or caused the brain injury. If a motion to dismiss is returned, the court will usually allow the plaintiff to amend the cause of action, so the motion to dismiss is only a temporary solution for the defendant in most cases.
• Counterclaim
  If the defendant answers with a counterclaim, he or she is claiming that rather than - or in addition to - being responsible for the plaintiff's TBI, the plaintiff actually took some action that caused damage to the defendant.

Q: What Happens After the Defendant Responds to the Summons?

A: The Court Will Set a Trial Date, and the Discovery Process Begins

Assuming the claim is not dismissed upon receipt of the defendant's answer, the court will set a trial date. Once the date is set, the discovery process will begin. Discovery refers to the process of obtaining evidence and information that will strengthen each party's case, and prevent either party from being taken off guard by surprise evidence or witnesses. In discovery procedures, each party must disclose the evidence and witnesses that they will be using, as well as submit to verification of the validity of documents and expertise.

Q: What Is a PreTrial Conference?

A: A PreTrial Conference Is Held To Discuss the Case Before a Trial Commences

A pretrial conference is meant to allow both parties to discuss the issues surrounding the case before it is presented to a jury in a formal trial. This is primarily to prevent any delays in the trial procedings. However, it is often during a pretrial that a settlement will be reached. The case could end here if the parties can reach an agreement as to the compensation due to the plaintiff. Settling out of court can save both parties a significant amount of time and money, depending on the complexity of the case.

Q: How Do Brain Injury Lawsuit Trial Proceedings Work?

A: There Is a Standard Protocol For Court Trials

• Opening Statements
  Before any evidence, witnesses or examinations, each attorney is given time to make an opening statement. At this time, each side will state what they will attempt to prove during their presentation of their case.
• Plaintiff's Case
  As the plaintiff, you bear the burden of proof in your TBI case. Therefore, your attorney will present your case first, including all of your evidence and witnesses. The defense attorney will cross-examine your witnesses at this time.
• Motion to Dismiss
  Before proceeding, the defense attorney will often request that the judge dimiss the case, stating that the plaintiff's attorney has not presented enough proof. This request is usually denied; if it is, and the trial will continue.
• Defendant's Case
  The defense will present their case second, attempting to disprove the claims made by the plaintiff's side. Your attorney will cross-examine any witnesses called by the defense at this time. When finished, the defense will rest its case.
• Rebuttal
  After the defense rests its case, the prosecution (your attorney) will be given the opportunity to rebut the claims made by the defense by submitting new evidence and testimonies that refute the defendant's claims.
• Closing Statements
  Both parties will be given the opportunity to summarize their case and make a final plea to the jury for an outcome in their favor.
• Jury Deliberation
  The jury will be taken to a separate area in the courthouse to discuss and consider the evidence and testimony presented during the case. They are asked to come to a conclusion based on the legally admissable evidence they have heard and seen, and to enter a verdict in favor of either the plaintiff or the defendant. The jury will remain in deliberation as long as it takes to reach a unanimous verdict. If they are unable to do so, they will be considered a "hung" or "deadlocked" jury. If this happens, the judge will declare a mistrial. In the event of a mistrial, the case may be retried, or the parties may decide to dismiss the case or settle out of court.
• Verdict
  When the jury re-enters the courtroom, the judge will read the verdict. Based on the verdict the court will then make a final ruling as to the amount of damages due to the winning party.

Q: What Are My Options If The Brain Injury Verdict Is Not In My Favor?

A: You May File an Appeal

If you lose your traumatic brain injury case, and you wish to continue legal action, you may file a motion to appeal. When you attempt to appeal a judgement, you are not retrying the case; you are requesting that another court review the proceedings of your trial and make a decision to overturn the original verdict. Appeals must be filed within a certain period of time following the trial. If you decide to appeal, you will need to submit court records, attend hearings and pay a filing fee. You will also need the continued support and counsel of a qualified brain injury lawyer. If you are visiting this site because you have filed an appeal, or want to file an appeal, and need help, please submit a contact form. An expert brain injury attorney in your area will be in contact with you to discuss the details of your appeal.