Absolutely not. Our ultimate goal at Schmidt-Salita Law Team is to settle your case for a fair amount as quickly and efficiently as possible. We settle some of our cases without filing suit. Others simply can’t be settled for a fair amount because the insurance company is unwilling to do so.
The fact that we have filed suit does not mean that we have given up on our efforts to settle. In fact, over 90% of our cases that are placed in suit actually settle without going through trial. Often, filing suit is the best way to get the case settled.
Under Minnesota law, mediation is mandatory in most Personal Injury cases. It is not mandatory in Workers’ Compensation cases but most Workers’ Compensation cases do go to mediation. Mediation is a process by which the mediator attempts to bring the parties to a settlement. At mediation, the mediator requires both parties to sit down at the bargaining table and hopefully negotiate in good faith. For that reason, filing suit is the next step in attempting to settle your case. In fact, the large majority of our cases that are placed in suit settle at mediation. See more on mediation below.
The first step in the process is to draw up the legal papers, called a Summons and Complaint. Then, they are “served” on the opposing party (parties), either by a Deputy Sheriff or a Process Server.
The Summons notifies the defendant (the individual who caused your accident) that he/she is being sued. It notifies the defendant of the fact that he/she must respond within a time limit. The Complaint details the grounds on which we base the suit and our claim for damages.
The defendant then turns the suit papers over to his/her insurance company of the suit. The insurance company then typically retains an attorney to represent the defendant.
The defendant, through his/her attorney, will respond to the complaint we have served with an Answer.
In most cases, the Answer must be served within 20 days.
Remarkably, under Minnesota law, it is illegal to name a specific amount that is being claimed where that amount is more than $50,000.00. For example, we cannot sue for $60,000.00 or $100,000.00, or any specific amount over $50,000.00. Instead, if we are asking for more than $50,000.00, we can only ask for “an amount in excess of $50,000.00” on the Complaint. This allows us to ask for any amount we wish for at trial.
Your case will be assigned to a Judge who will issue a Scheduling Order which sets certain deadlines for the completion of discovery and mediation and sets the trial date.
The next step is called “Discovery“, in which both sides exchange information to learn more information about the opposing party’s case and to prepare the strongest possible case. Discovery consists of the following:
Interrogatories are written questions which must be answered under oath within a certain time limit. We will forward these questions to you and ask that you answer them to the best of your ability. Certain information which will be requested will be in our files. Schmidt-Salita Law Team will assist you in answering the Interrogatories.
At the same time, we will serve (send) our own Interrogatories to the defendant to obtain his/her answers under oath.
There are additional documents that will most likely be served upon you. These documents would include a Demand for Production of Documents, by which a party can request that the opposing party provide copies of significant document, such as witness statements, photos, medical bills, etc.
After the Interrogatories have been answered, the defendant’s attorney will request that your deposition be taken. A deposition is an opportunity for the defendant’s attorney to ask you very probing questions regarding the facts of the accident, your injuries, your wages, your employment and any other relevant information. This is done in the presence of a court reporter and the questions and answers are recorded word-for-word and placed in written form.
Your attorney at Schmidt-Salita Law Team will be present throughout the process.
The deposition itself will typically take from 2 to 4 hours.
We will have the opportunity to take the deposition of the defendant as well.
The defendant is allowed by Rule 35 of the Minnesota Rules of Civil Procedure to have you examined by a physician of their choice. The Rules of Court call this an Independent Medical Examination (IME) even though there is nothing “independent” about it. Instead, it is a process by which the defense has the plaintiff examined by a doctor who will testify in favor of the defense, and against your case, at trial. In most cases, this doctor is very conservative and will state that you are not injured, or that your injuries and disabilities were not caused by the accident upon which your case is based.
When the defense requests an IME, you have the right to resist. However, in almost 100% of the cases, the Court will order you to attend.
Mediation is a process by which the parties formally attempt to settle the case after suit has been filed. Mediation is required in most Personal Injury cases by the Rules of Court. It is not required in Workers’ Compensation cases but most Workers’ Compensation cases go to mediation anyway. Mediation is not required in Medical Malpractice cases. The parties are usually able to agree on a person, typically a lawyer or a retired judge, to serve as mediator.
The parties meet with the mediator, after having first provided the mediator with information about the case. The mediator typically then meets with both parties, usually in separate rooms at the same location, and attempts to bring the parties together to a mutually acceptable settlement. The mediator has no power to decide the case-and only can use his or her best powers of persuasion to get both parties to agree.
If the case doesn’t settle at mediation, there is still hope of a settlement and the Court often will call the parties together for a pre-trial conference. At that time, the Judge will make one last effort to bring the parties to a settlement. If that attempt is unsuccessful, the Judge will set the case for trial
When we certify a case for trial we are telling the court that your case is ready to be placed on the active court calendar for trial. Generally it takes anywhere from 4 to 12 months from the date we certify the case for trial before the jury trial is scheduled.
You will be given plenty of advanced notice of trial. Typically, the trial will take anywhere from 3-5 days to complete. We can give you a more accurate estimate which is specific to your case.
The trial will be held in a courtroom either before a Judge or a Judge and Jury. In Minnesota, juries are usually composed of 6-8 persons. The jury will listen to all evidence and make a determination.
We will have an opportunity to present evidence through your testimony, the testimony of neighbors, co-workers and friends. The expert testimony of your doctor and perhaps an employment expert may also be necessary, to prove your case. Please provide us with a list of the witnesses that you want us to call to testify at trial and do so well before the trial so that they can be placed on the witness list within the required time period.
It is important that you understand that for any claim we assert, such as lost wages or permanent disability, we must be able to support it with evidence and testimony. Simply making a claim without evidence from an expert or neutral witness is not effective documentation.
The defendant’s attorney will try to minimize our claims by utilizing the testimony of their doctor who examined you pursuant to Minnesota Rule 35.
Sometimes your case can be settled shortly after it is placed into suit. More often, however, cases will be settled at mediation which typically occurs 4-5 months after the suit is filed. Over 90% of cases are settled at mediation or shortly after mediation.
If the case does not settle at mediation, it could still settle at any point before trial. If not, the case would go to trial, usually in front of a jury. Cases are usually set for trial approximately 6-9 months after they are filed with the Court.