When a claim cannot be settled amicably, the only other alternative is a civil litigation via a lawsuit. While a lawsuit can oftentimes result in a judgment in your favor, it is also a lengthy and complicated process.
In Nevada, once a lawsuit is filed and served, the other party generally has 20 days in which to respond. Corporations have an extra 10 days in which to respond. After an Answer is filed, the case will automatically go into mandatory arbitration, unless you request that it be exempted. In order to obtain the exemption, however, you have to demonstrate that the reasonable value of the claim exceeds the $40,000 arbitration limit.
While mandatory arbitration was originally enacted in hopes of reducing the case load and getting claims to settle more quickly with less complications, the unfortunate reality, in our opinion, is that the system rarely works that way. Insurance companies generally like arbitration, because it will allow them many additional months to continue earning interest on monies it will ultimately have to pay to the injured party.
Civil Litigation and Arbitration
When a case goes into the arbitration program, a list of potential arbitrators is provided to each side, each of whom can strike certain names. The arbitrator is then picked from the remaining ones and will preside over the case. Generally, each side has the right to conduct limited discovery, such as depositions, requests for production of documents, requests for admissions and interrogatories. When the case goes to arbitration, it will usually take place in the arbitrator’s office. Both sides then present their case and cross-examine each other’s witnesses in a more informal setting. The arbitrator considers the evidence, listens to the testimony, and then arrives at his or her decision, generally within 10 days.
If either party is not happy with the results of the arbitration, within 30 days, they can file for trial de novo. Beyond that time, the arbitrator’s decision becomes a final judgment. If a timely appeal has been filed, then their case then goes to District Court and the process starts all over again.
While there are exceptions, our experience is that, whenever possible, cases are better off being exempted from arbitration and going directly into District Court. Once a case is in District Court, it will usually take a year or two (sometimes more), to get the case to trial. While many people prefer a bench trial (where the Judge is the one who hears the case and renders a decision), and each case is different, our firm generally likes to request a jury trial, as our track record has been excellent with juries.
During the civil litigation, the attorneys for the parties will meet and exchange information and documents. They will then usually set the depositions of key witnesses, where people will appear before a court reporter and testify under oath as to the facts of the case. Written discovery will also be conducted by both sides. This will include interrogatories (written questions to be answered), requests for admissions (where the party must either admit or deny each request), requests for production of documents, requests for medical examinations, and requests for an inspection of property or vehicles by each side’s expert witnesses to determine the force of the collision.
In Nevada, each side also has the right to submit what’s called an “offer of judgment,” in which that party is willing to accept, or to pay a certain amount of money to end the case. Offers of judgment are governed by NRCP 68 and NRS 17.115 in Nevada, and by CCP 998 in California. If the offer is not accepted, and that person later “beats” his offer of judgment, the Court can also award that party all prejudgment interest, recovery of costs for retaining experts, and even attorney fees in appropriate cases. For example, if the Plaintiff makes an offer of judgment for $99,999.99 and the jury comes back with an award of $100,000.00, that party can seek recovery of all of the above damages, plus attorney fees. When done properly, an offer of judgment can act as an excellent incentive to settle cases.
After discovery has been completed, pre-trial motions will be filed by each side and ruled upon by the Court. In cases we handle where the other side was cited for the offense that caused injury to our client, or where our client was an innocent passenger in a vehicle that was struck, we will oftentimes file a motion for partial summary judgment on the issue of liability. When the motion is granted by the Court and the case goes to trial, we can then advise the jury the Court has already determined, as a matter of law, that the other driver is legally liable for causing the collision. We can then focus the remainder of the case on establishing the amount of damages the jury will award.
Civil Litigation is very complicated, and while it is theoretically possible for a lay person to handle his or her own case (i.e. to act “in proper person”), an experienced lawyer will almost always do better and obtain a far larger judgment than a lay person can do on his own.
Another alternative to a full-blown trial, which can oftentimes be effective in settling a case, is mediation. In basic terms, mediation is voluntary. If both sides agree to mediate, they can select a person (generally a lawyer acceptable to both parties) who will act as a “judge.” The mediator will review briefs filed by each side, and then attempt to settle the case. An effective mediator will explain the risks faced by both sides if the case goes to trial, including the uncertainty of a favorable verdict, the likelihood of an appeal by the losing party, and the benefits to settling now, rather than risking everything at trial. A similar option is to request a Mandatory Settlement Conference, in which a Judge (usually not the one who will be hearing the case) is assigned to hear the parties’ arguments. The Judge will then discuss the strengths and weaknesses of each party’s case and seek to put an end to the litigation.