Litigation Terms & Process

Trial Attorneys

Toner & Ramirez, P.A., is a civil trial/litigation practice.  Our attorneys will represent you regarding your personal injury claim from the initiation of the claim through settlement or trial.  We find that it is helpful to our clients that they should know the most common steps in the process as we​ll as the important terms regarding their case.  

Prior to the Commencement of a Lawsuit (a/k/a 'Pre-Suit'):

  • Claim:  Your "Claim" is the generic term used by lawyers and insurance companies to describe your case, specifically the basis for your recovery of damages.  A claim arises as soon as the incident that forms the basis for your damages occurs - That is, you​ have a claim as soon as there is an automobile collision or you slip​ on foreign substance on a store floor and you are injrued.  If you have a claim, the insurance company will refer to you as a 'claimant.'

  • Recorded Statement:  Frequently, an insurance company will want to obtain a statement from a 'claimant' as soon as possible after an incident.  The insurance company does this not only to get a statement of the facts of the incident from you while the facts are still fresh in your memory, but also in hope of learning damaging information from the claimant before he/she has retained an attorney.  As implied, 'Recorded Statements' are recorded; however, insurance companies also frequently ask for 'non-recorded statements,' which may also be detrimental to a claimant's case.  If you are represented by an attorney, you have the right, and should, have your attorney present when giving a recorded statement.

  • Examination Under Oath: An Examination Under Oath a/k/a "EUO" is like a deposition (described below); however, it generally is performed prior to the fili​ng of a lawsuit.  In many instances, such as a first-party uninsured motorist claim, the insurance company has the right to ask questions of its insured party, which is sometimes also the claimant, under oath before a court reporter.  If you are represented by an attorney, you have the right, and should, have your attorney present when being subjected to an examination under oath.

  • Demand:  Once sufficient documentation has been collected, a demand is made to the insurance company or companies for payment of the monetary equivalent of your damages.  Although money can never fully compensate you for your injury, the only method of compensation permitted by our system is payment of money damages.  Typically, these damages will consist of past medical expenses/bills, medical expenses reasonably expected to be incurred in the future, lost wages, loss of the capacity to earn money, and non-economic damages, such as pain/suffering, mental anguish, disability, physical impairment, disfigurement, inconvenience, and loss of the capacity for enjoyment of life.  Depending upon the insurance company's evaluation of your claim, the insurer may choose to pay the demand, offer a lesser amount, or deny the claim entirely.​

  • Negotiation:  After a demand has been made, and if the insurance company chooses not to meet the demand, a settlement negotiation may begin.  In this phase, the insurer may make an offer to settle the claim for less than the demand amount.  Ultimately, whether the matter is settled for a lesser amount is your decision, and your attorney will negotiate your claim within the authority you have granted.  Negotiation may begin at the inception of your claim and continue to and beyond a trial of your case.​​​

​After Commencement of a Law Suit (a/k/a 'In-Suit'):

  • Complaint:  This is the legal document that begins a civil action with the appropriate court.  It generally states the 'ultimate facts' that form the Plaintiff's legal basis for recovery of his or her damages.  Generally, it states a monetary amount claimed that forms the basis for the jurisdiction of the court in which the Complaint was filed.  In Florida's Circuit Courts (the most common trial court for a personal injury lawsuit to be filed), the Complaint will state that the damages claimed exceed $15,000.  The Complaint will also generally allege the Court's basis for jurisdiction over the parties as well as the basis for the Court's jurisdiction over the subject matter of the dispute.  Finally, the Complaint will state more specific specific facts of the case, including an allegation of the duty owed by the Defendant, an allegation of the Defendant's breach of that duty, and a statement of the Plaintiff's categorical damages caused by the Defendant's breach of the duty.  The Complaint will conclude with a request that the court grant relief to the Plaintiff in the form of monetary damages.

  • Answer:  After the Defendant has been formally served with a copy of the Complaint and in response to the Complaint, the Defendant will generally file an Answer (sometimes the Defendant may file a Motion in response to the Complaint to preserve certain procedural/legal defenses).  The Answer is the Defendant's response to ​the allegations contained in the Complaint.  The Defendant can admit or deny the allegations, or the Defendant may state that he/she has insufficient information to admit or deny the allegations.  Further, the Defendant may assert 'Affirmative Defenses,' which are legal or factual assertions stating why the Defendant believes he/she is either not responsible for the Plaintiff's damages or is entitled to a reduction in the damages that may be awarded by the court.

  • Discovery:  During the pendency of a civil action, the parties are entitled to obtain information about the case from each other.  There are certain limitations on the information that must be provided to the opposition; however, excluding those limitations, the each side is entitled to receive information from the other side that is relevant to the case.  This may be done in the form of Interrogatories (written questions directed to the opposing party), Requests for Production of Documents (categorical lists of documents that may be in the possession of the opposing party), Compulsory Medical Examinations (a physical examination of the Plaintiff by a medical expert hired by the Defendant), Subpoenas to non-parties (formal requests for documents to be provided by non-parties/medical care providers), and depositions.  There are several other types of discovery requests, but those previously listed are the most common.​​

  • Deposition:  During the course of the litigation, the attorneys are permitted an opportunity to ask questions directly to a party or witness.  This is done before a court reporter who records stenographically the questions and responses.  Generally, the attorneys are permitted to take the deposition of each party and each witness once during the pendency of the litigation.  The deposition is sworn testimony, which can be used for any purpose in the litigation, including impeachment of the witness/party at trial of the case.​​

  • Mediation:  ​Florida courts generally require parties to mediate their case before permitting a trial to proceed.  Please click on the tab above for a more detailed explanation of the mediation process.​

  • Trial:  The trial of a personal injury case is the opportunity for a jury to decide the resolution of the case.  Most trials of personal injury claims take several days, beginning with the selection of a jury through the rendering of the jury's verdict.  Witness testimony, expert testimony, documentation, and arguments of the attorneys are presented to the jury at that time.

  • Verdict:  The verdict is the jury's response to a list of questions regarding the jury's assessment of fault and damages.  The verdict total is then used by the court to enter a judgment.

  • Final Judgment:  The final Judgment is the award entered by the court against the losing party and in favor of the successful party.  The Judgment is based upon the jury's verdict but may also include deductions for comparative negligence and reductions for medical expenses paid by collateral sources as well as other considerations for the court.