The lawsuit is begun in New York by the filing of a summons and complaint (and in medical malpractice cases, the filing of a certificate of merit) with the county clerk in which the lawsuit is brought.  After the lawsuit is filed, the summons and complaint is served upon the defendants, who then have a deadline to serve a document responding to the allegations in the complaint known as an “answer”.

After all defendants serve an answer to the complaint, the plaintiff and defendants exchange written discovery demands and discovery responses, wherein they seek information about the allegations of the lawsuit. For example, the defendant will ask the plaintiff to describe the manner in which the defendants were negligent, he injuries sustained by the plaintiff, the names and addresses of all physicians and hospitals where the plaintiff has received medical treatment. On the other hand, the plaintiff will ask the defendant to describe the manner in which they blame the plaintiff for his/her injuries, such as refusing to follow medical advice or failing to attend scheduled medical appointments.

Additionally, the plaintiff provides the defendants’ lawyers with release authorizations permitting them to obtain the plaintiff’s medical records. It typically takes the defendants’ lawyers 4-6 weeks to obtain the plaintiff’s medical records, and when the plaintiff has ongoing medical treatment for his/her injuries, the process of getting updated medical records continues during the lawsuit.

After the plaintiff and defendants exchange discovery demands and responses and the defendants’ lawyers obtain the plaintiff’s medical records, depositions of the parties are scheduled.  A deposition is a question and answer session typically held in a lawyer’s conference room before a stenographer, where the attorneys for each side get to ask questions of the opposing party. The stenographer keeps a written transcript of every question and answer, and the purpose of the deposition is to allow the opposing attorney to learn about the claims made in the lawsuit against their client.

After depositions have been completed of the plaintiff and defendants and non-party witnesses, the defendant has the right to conduct a defense medical examination (DME) of the plaintiff.  A defense medical examination is a physical examination of the plaintiff by a physician chosen by the defendant’s lawyer or insurance carrier. The plaintiff’s attorney should ALWAYS attend the defense medical examination with the plaintiff in order to ensure that the defense physician does not ask inappropriate questions relating to medical conditions that are not relevant to the lawsuit, such as a past history of substance abuse or psychiatric disorders, or inappropriate questions concerning liability issues, such as how the accident occurred.

The defense physician prepares a written report of the defense medical examination and the report is sent to the plaintiff’s lawyer.  The DME report is almost always favorable to the defendant and rarely reflects an accurate or truthful account of the examination. The DME report will often state that the plaintiff is a malingerer, or exaggerating the seriousness of the injurires.  This account is expected because many defense physicians earn their entire livelihood by testifying for the defense.

After the defense medical examination, the plaintiff files a document known as a note of issue requesting a trial date.  The Judge assigned to the case schedules a conference where the attorneys for the parties agree upon a date for the trial.  The lawyers for the parties also discuss deadlines for exchanging expert witness disclosure where they provide a written record that discloses the opinions of their expert witnesses.

The entire “pretrial procedure” typically takes 8 to 12 months from the filing of the summons and complaint to the filing of the note of issue. After the note of issue has been filed, the Judge will often assign a trial date that is 8 to 12 months from the date of the filing due to the congestion of the court’s trial calendar and the unavailability of defendants’ lawyers.  In most cases, the litigation lasts 18 to 24 months.