The Delaware Injury Litigation Process Explained

If settlement negotiations have broken down and your injury case cannot be resolved, it may be necessary to sue the at-fault party in court. The following is an overview of the steps in the personal injury litigation process as it applies to personal injury and accident cases.

The Complaint

A lawsuit begins when the injured party files a complaint with the court. The complaint is a short and plain statement of the claim showing that that the plaintiff is entitled to relief and demands judgment for the relief sought. The purpose of a complaint is to put the opposing party on notice of the claims in the lawsuit. The party filing the complaint is called “the Plaintiff.” The at-fault part is the “the defendant.” The complaint contains the facts of the case in numbered paragraphs and shows as a matter a law that the plaintiff can prevail in court. The complaint must have a caption that contains the name of the court, the names of the parties, the file number and the name of the pleading. Negligence claims must be plead with particularity or specific facts showing negligence. Conditions of the defendant’s mind such as malice, intent and knowledge may be alleged generally. The complaint must be signed by the plaintiff or the plaintiff’s attorney. The complaint must be filed with the court and a jury trial by 12 jurors should be demanded on the face of the complaint if the plaintiff so desires.

Service of the Complaint

The plaintiff has 120 days to serve the complaint on the defendant(s). The county sheriff or a process server serves the complaint. To serve the complaint on an individual in Delaware, the plaintiff can serve it personally to the defendant(s) or at the defendant[s] house with a person aged 18 or over. To serve a Delaware corporation, the plaintiff can serve any officer or director personally, the corporation’s registered agent, or serve an individual 18 or over at the house of any officer, director or registered agent. Out-of-state individuals or entities can be served personally pursuant to the laws of Delaware or the State where service occurs. Out-of-state individuals or entities can also be served by mail that requires a signed receipt. 

Answer

After service of the complaint, the defendant has 20 days to answer the complaint. The defendant must admit or deny each allegation or numbered paragraph in the complaint. If the allegation is not denied it is admitted. The defendant can also state that it is without sufficient information to admit or deny the allegation. Defenses should be stated in the answer. Extensions past the 20 day deadline are freely granted.

Discovery

Discovery refers to the exchange of information between the parties prior to trial. The following are the various discovery tools available to the parties of a lawsuit.

Depositions 

A discovery deposition is the sworn testimony of a witness or party to the lawsuit. Depositions typically take place outside of court at a lawyer’s office or via zoom. However, a court reporter will be present and administer the oath to the witness. The lawyer will then ask questions of the witness being deposed and a court reporter will take down the questions and answers. The parties can order a transcript of the proceeding. The deposition can also be videorecorded. The party scheduling the deposition will file a notice with the court advising of the date, time and location of the deposition. 

Interrogatories

Interrogatories are written questions directed to the opposing party. Written responses are due within 30 days. The information in the answers must be verified or sworn as true or signed by the answering lawyer. Extensions of time are frequently agreed to by the parties.

Requests for Production

A request for production is a written request requesting production of certain documents or tangible things in the possession of the opposing party. A request for production can only be served on a party to the lawsuit. The party being served the request has 30 days to produce the items or allow for inspection. Extensions of time are freely granted. 

Requests for Admission

A request for admission is a written request that the opposition admit a fact pertaining to the lawsuit. A party can even ask the ultimate question pertaining to the lawsuit in a request for admission such as “are you liable?” If a party does not respond within the 30 days the requests are deemed admitted.

Subpoenas

A subpoena is a directive from the court to a non-party to either appear in court to testify or produce items. A subpoena duces tecum is a subpoena to produce documents and items. A subpoena cannot be served on a party to the lawsuit. 

Motions 

 A motion is a written document directed to the court or judge asking the court to take action or rule on a matter. The following are common or basic motions that parties may file in civil lawsuits. 

Motion to Dismiss

A motion to dismiss is known as a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted. The defendant files this motion before the answer is filed to have the case dismissed. If the plaintiff is not entitled to [legal] relief under any set of facts that could be proven to support the allegations in the complaint, the complaint must be dismissed as a matter of law. 

Motion to Compel

A motion to compel is filed with the court to compel the other side to produce discovery material such as documents, tangible items or responses to interrogatories. Motions to compel are filed after a party fails to produce the requested information. Prior to filing this motion, the parties must make a good faith effort to resolve any discovery disputes. A deficiency letter is typically sent to the opposing party detailing why the discovery responses are deficient. If the opposing party does not cure the deficiency, a motion to compel may be filed and argued in court. The court may award attorney’s fees to the prevailing party to the motion.

Motion for Summary Judgment

A motion for summary judgment is a motion filed with the court that requests the court to make a final ruling on an issue or issues prior to trial. When there is no genuine issue as to any material fact to be tried and a party is entitled to judgement as a matter of law the court will grant a motion for summary judgement. In other words, when there are no factual disputes and a party must win as a matter of law the court must grant summary judgment prior to trial. Motions for summary judgement are typically filed when the discovery process is complete. The court will look at the pleadings, the discovery material and any sworn affidavits submitted. 

Mediation

In Delaware non-binding alternative dispute resolution (ADR) is mandatory in every case. This means the parties must go through some form of dispute resolution to try to resolve the case before trial. There are two forms of ADR: mediation and arbitration. Mediation is when the parties meet with a trained mediator who will try to get the parties to work out the issues and reach a settlement. Mediation is not binding or final and what is said in mediation cannot be used against a party at trial. The court will be notified if the parties cannot come to a resolution. Arbitration refers to the process where the parties go to a trained arbitrator (a lawyer) and hold a mini-trial and present evidence. Arbitration can be binding and take place in lieu of trial if the parties desire.

Pre-Trial Stipulation

Prior to trial, a form 46 pre-trial stipulation must be filled out by the parties, signed and filed with the court. This document that sets forth the facts, issues, jury voire dire questions to be asked and details of the case. This document outlines the legal and factual issues to be tried and governs the course of the trial. 

Offer of Judgment

The defendant can make an offer of judgment to the plaintiff for a specified dollar amount more than 10 days prior to trial. The plaintiff has 10 days to accept the offer and file a notice of acceptance with the court. If the offer is not accepted it is deemed withdrawn. If the plaintiff does not obtain a verdict at trial more favorable than the offer of judgment, the plaintiff will not be entitled to any pre-judgment interest and will have to pay court costs incurred after the offer was made. 

Trial

In Delaware, the plaintiff is entitled to a jury trial by twelve if it was written on the complaint. If the complaint says “jury trial demanded” a six-person jury trial will be held. If no jury trial was demanded at the outset of the lawsuit, a bench trial will be held where the judge decides the facts and the law. In a civil trial, the plaintiff has the burden of proof to convince the jury. The burden of proof is preponderance of the evidence. Preponderance of the evidence means that the plaintiff’s evidence must be slightly more convincing that the defense. Another way to think of it is that the scales of justice must tip in favor of the plaintiff. The format of the trial is as follows:

Jury Selection

Jury selection is the process of picking a jury from a panel of prospective jurors to serve and decide the facts in the case. Jury selection begins with voire dire questions. Voire dire is the process of asking the prospective jurors questions or examining the prospective jurors on their background and potential prejudices. In Delaware, the court asks the dire voire questions. Attorneys can submit voire dire questions to the court. If a juror cannot be fair or impartial based upon the responses to the voire dire questions, a party can strike that juror for cause and have that potential juror excused. Each side has an unlimited number of strikes for cause. Each side also has 3 preemptory challenges. This means each side can strike 3 jurors for just about any reason other than race. One or two alternate jurors will also be empaneled. Alternate jurors listen to the trial and are there in case a juror is not able to complete service.

Opening Statements 

Opening statement is where the parties tell their side of the story. The opening statement is factual. The lawyers will tell the jury what they believe the evidence will show.

Plaintiff’s case

The plaintiff will call his or her witnesses and present evidence. The defense will have the opportunity to cross-examine the plaintiff’s witnesses

Defendant’s case

The defendant or the defendant’s lawyer will call his or her witnesses and present evidence. The plaintiff or plaintiff’s attorney will be able to cross-examine the defense witnesses.

Closing argument

In closing argument, the parties argue the facts and the law, and summarize why the jury should find in their favor. Interestingly, in a civil case in Delaware, a lawyer is not allowed to ask the jury for a specific dollar amount on pain and suffering like other jurisdictions. In other jurisdictions a lawyer can say to the jury “give me a million dollars for the pain and suffering of the plaintiff.” A Delaware plaintiff cannot do that. A Delaware plaintiff can only state in closing what are referred to as “special damages” like medical bills and lost wages. Special damages basically are concrete numbers, general damages are intangibles like pain and suffering.

Verdict

The jury foreman will fill out a verdict slip and render a verdict that determines liability and the amount of money damages awarded. Delaware is a comparative negligence state. Comparative negligence means that if the plaintiff was partially at-fault the jury can reduce the plaintiff’s award by a percentage as long as the plaintiff was not more than 50% at fault.

Contact Us

Contact Jason R. Antoine, injury and accident attorney at (302) 482-4802 if you or someone you love is going through an injury at no fault of your own and need to file a civil lawsuit and go through the litigation process.