In New York, a civil action is started by filing a summons. This process must be filed within the applicable statute of limitations. Usually, a verified complaint is filed along with the summons. The complaint sets for the allegations made against the defendant(s). Once the summons and complaint is filed, the plaintiff has 120 days to serve process on the defendant(s). An extension may be granted by the court for the appropriate reasons. Once service of process (summons and complaint) is effectuated, the defendant normally has 20 days to appear in the action. This appearance is usually done by the service of a verified answer upon plaintiff’s counsel. Now “issue is joined” and the questions of fact raised by the respective pleadings (complaint and answer) can be readied to be decided by a judge or jury.

Once issue is joined, the discovery process can begin. It is during this phase of the litigation that both sides get to inquire of the other in a variety of means to find out information within the others possession. The plaintiff will be served with a Demand for a Bill of Particulars. This is a demand for answers to written questions about the nature of the claim. It will ask for such basic items as the name and address of the plaintiff to the theory of liability and the damages sustained. The plaintiff may also serve a Demand for a Bill of Particulars as to the affirmative defenses asserted by the defendant.

Both sides will also serve other discovery demands for certain documents that may be relevant to the case. For example, the defense side will want HIPAA authorizations to obtain hospital and medical records relating to the plaintiff’s care and treatment.

During this part of the discovery phase, it is the plaintiff that normally will request of the court to schedule the first court conference, called a preliminary conference. Subsequent thereto, the court will monitor the progress of the case by scheduling further compliance conferences. The purpose is to literally ensure that both sides are complying with discovery demands.

After document discovery, both parties will submit to an examination before trial (EBT). This is where the respective attorneys get to ask oral questions of the opposing party. Both plaintiff and defendant(s) will testify under oath. The EBTs are usually conducted at the office of one or both of the lawyers before a court reporter (stenographer).

Other witnesses may also be required by subpoena to testify at a deposition.

After the EBTs, further document requests may be made to obtain records revealed by the testimony of the parties.

Once discovery is complete, the case may be certified trial ready. At the last compliance conference, the court will set a date for the plaintiff to file a Note of Issue. This document certifies that the case is trial ready and the court will place the case onto the trial calendar.

The defendant has a limited time after the filing of the Note of Issue, at most 120 days after the filing of the Notice of Issue or shorter depending on the Judge, to file a motion for summary judgment. This is a motion to ask the court to dismiss plaintiff’s complaint alleging that there are no triable issues of fact. The defendant(s) will seek to establish to the court that they are entitled to a judgment in their favor on an issue of law and that the conceded facts do not change their entitlement. In opposition, plaintiff will have to show that there are issues of fact that require a denial of the motion. For example, in a motor vehicle case, defendant will submit a doctor’s affirmation asserting that plaintiff did not sustain a serious injury as required by the Insurance Law. In opposition, plaintiff will be required to submit a doctor’s affirmation showing that plaintiff did sustain a serious injury. If plaintiff raises a question of fact, the motion will be denied, as only juries and not the court decide issues of fact. If not, plaintiff’s complaint will be dismissed.

Assuming the case is not dismissed by summary judgment, the case will then move up the trial calendar. During this process, the court may also schedule other conferences, such as a settlement conference or trial ready conference. If the matter is not settled, the court will set a trial date.

Once the case is called for trial, the first phase is for jury selection. The parties will select a jury and then be assigned to a judge for trial.

At trial, both sides will present their case. The respective parties will be expected to testify in court. Other documents may be introduced into evidence and other witnesses and doctors may also testify.

Once all of the evidence is submitted, the jury will be charged by the judge. This is where the judge instructs the jury on the applicable law. The law is within the sole province of the judge. The jury is the decider of facts.

In New York, a civil trial is decided by six jurors. There are two alternates. After the jury is charged by the judge, they retire to the jury room to decide the case.

There can never be a guarantee what a jury will do when deciding a New York personal injury litigation matter.