How a personal injury case works in New Jersey and New York

An injury case can feel like a black box. You tell your story, sign some papers, go to the doctor, and wait. This guide lays out what usually happens, in what order, and what you can do at each stage to help.

Not every case goes through every step, and many settle before a lawsuit is ever filed. Knowing the full path helps you understand where you are and why things take the time they do.

The stages at a glance

1. Free consultation and retainer
2. Investigation and evidence preservation
3. Medical treatment, and PIP or no-fault benefits
4. The demand package
5. Negotiation
6. Filing a lawsuit
7. Discovery
8. Defense medical examinations
9. Arbitration, mediation and other settlement tools
10. Trial
11. Closing the case (liens, release and disbursement)

Getting started

1. Free consultation and retainer

The first conversation is about your story, including how the injury happened, your treatment, the insurance involved, and how your life has changed. Bring photos, the police report number, insurance cards, medical paperwork and letters from insurers.

If the firm takes the case, you sign a retainer agreement explaining the fee, how case costs are handled, and what the firm will do. Read it and ask questions before you sign.

2. Investigation and evidence preservation

Evidence disappears quickly, so early in the case the firm works to lock down what matters.

• Getting the police report and photographs
• Sending preservation letters for video, vehicle data and business records
• Identifying and contacting witnesses
• Finding every insurance policy that may apply
• Checking for short deadlines, such as notice requirements against public entities

Time limits matter from day one. A personal injury lawsuit generally must be filed within two years in New Jersey and three years in New York, and some claims have much shorter deadlines.¹ Our statute of limitations guide covers the exceptions.

3. Medical treatment, and PIP or no-fault benefits

Your job now is to get better. In auto cases, your own insurance usually pays medical bills first, through personal injury protection (PIP) in New Jersey or no-fault benefits in New York (see our New Jersey PIP and New York no-fault guides).

Treatment records are the backbone of your case. Many auto claims also require meeting a legal injury threshold before you can recover for pain and suffering, which makes consistent treatment even more important (see our guides on the New Jersey verbal threshold and the New York serious injury threshold).

Trying to settle before a lawsuit

4. The demand package

Once your condition has stabilized, or your doctors can describe your long-term outlook, the firm gathers your medical records and bills, wage documentation and other proof. The firm sends this demand package to the insurance company with a written explanation of how the crash happened, how you were hurt, how your life changed, and the amount you are asking for.

A demand sent too early can undervalue a case, because no one yet knows whether you will need surgery or have lasting limits. Waiting too long risks a filing deadline. Your lawyer balances the two.

5. Negotiation

The insurer responds, often with a low first offer, and offers go back and forth. Your lawyer explains every offer to you, including what you would actually take home after fees, costs and any liens (see our settlement liens guide). The decision to accept or reject a settlement is always yours.

If negotiation does not produce a fair result, or a deadline is approaching, the next step is a lawsuit.

Filing a lawsuit

A lawsuit begins with a complaint, the document that names the parties and states your claims. The defendants then file an answer.

• In New Jersey, injury cases are filed in the Superior Court, Law Division, in the appropriate county. Each case is assigned to a “track” based on its case type, and the track sets the length of the discovery period.² Discovery runs 150 days on Track I, 300 days on Track II and 450 days on Tracks III and IV, counted from the first answer or 90 days after the first defendant is served, whichever comes first.² Many auto and general injury cases are on Track II, while medical malpractice and product liability cases are typically on Track III.
• In New York, most injury cases are filed in the Supreme Court, which despite its name is the main trial court. A case gets a judge after a party files a Request for Judicial Intervention.

Discovery and defense medical exams

Discovery is the formal exchange of information, and usually the longest stage.

Discovery in New Jersey

1. Written questions. In most personal injury cases, the plaintiff answers a standard set of court-approved questions called Form A interrogatories, covering the accident, injuries, treatment, prior conditions, lost wages, witnesses and experts.³ The plaintiff’s answers are due within 30 days after the defendant’s answer is served, and they are signed as a certification of truth.³
2. Documents. Both sides exchange records, photographs and other documents.
3. Depositions. Each side can question the other’s witnesses under oath, with a court reporter present.⁴ Your lawyer prepares you before yours.

If discovery cannot be finished in time, the parties can agree to a single 60-day extension, but extensions after an arbitration or trial date is set require exceptional circumstances.²

Discovery in New York

1. Bill of particulars. Instead of a long questionnaire, the plaintiff serves a bill of particulars that lists, among other things, the date and place of the occurrence, the injuries claimed (including which are permanent), time confined to bed and home, time out of work, and medical and wage losses.¹⁵ It must be served within 30 days of a demand and can be amended once as of course before the note of issue is filed.⁹
2. Preliminary conference. The court sets a discovery schedule, either at a conference or through a stipulated order. In general, discovery is to be completed within 12 months of the Request for Judicial Intervention in a standard case and 15 months in a complex one.¹⁰
3. Depositions. In New York, depositions are often called EBTs (examinations before trial). They work the same way, with questions under oath and a court reporter present.

Defense medical examinations

The defense can have you examined by a doctor of its choosing, often called an IME (independent medical examination) or DME (defense medical examination). The doctor is hired by the defense, so expect a skeptical report.

• In New Jersey, the defense serves a notice stating when, where and by whom the exam will be done, and the exam cannot be scheduled sooner than 45 days after the notice. A second exam needs your consent or a court order.⁵
• In New York, the exam is generally scheduled 30 to 60 days after notice, the plaintiff’s own medical reports must be exchanged beforehand, and the examining doctor’s report is due within 45 days after the exam.¹¹

Be on time, answer honestly, and do not exaggerate or minimize. Afterward, tell your lawyer exactly what happened, including how long the exam took.

Arbitration, mediation and other settlement tools

New Jersey arbitration

New Jersey requires most injury cases to go through mandatory non-binding arbitration. Auto negligence cases and most other personal injury cases are included, while professional malpractice and product liability cases are not.⁶ An attorney serving as arbitrator hears a short presentation from each side and issues an award.

The award is not binding if a party rejects it in time. To reject, a party must file a demand for a trial de novo, which means a new trial, within 30 days after the award is filed, serve it on all other parties, and pay a $265 fee.⁶ If no one does, the case ends based on the award. A party who rejects an award and then does not do at least 20 percent better at trial may have to pay some of the other side’s costs and fees, within limits set by the rule.⁶

Mediation

In both states, cases often go to mediation, a meeting with a neutral mediator who helps the parties try to reach a settlement. The mediator does not decide anything. In New Jersey, a court can order a civil case into mediation, and a roster mediator’s first two hours, split between preparation and the first session, are at no cost to the parties.⁷

Offer of judgment in New Jersey

Once a case is in suit in New Jersey, either side can serve a formal offer of judgment. If the plaintiff’s offer is rejected and the plaintiff later wins a judgment of at least 120 percent of the offer, the court can award litigation expenses incurred after the rejection, prejudgment interest of eight percent, and a reasonable attorney’s fee for the work the rejection made necessary.⁸

Summary judgment in New York

In New York auto cases, defendants often move for summary judgment arguing that the plaintiff did not suffer a “serious injury” as the law defines it. If the court grants the motion, the claim for pain and suffering is dismissed without a trial. Unless the court sets a different date, summary judgment motions must be made within 120 days after the note of issue is filed.¹⁶ The note of issue is the filing that certifies discovery is complete and puts the case on the trial calendar, and other parties have 20 days to challenge it.¹²

Trial and closing the case

Trial

If the case does not settle, it goes to trial. A jury is selected, both sides give opening statements, witnesses testify (including you, your doctors and the defense’s experts), and the lawyers give closing arguments. The jury then decides fault and damages.

Trials can last from a few days to several weeks, and your lawyer will prepare you before you testify. After a verdict, either side may file post-trial motions or an appeal.

Closing the case

1. Release. In a settlement, you sign a release ending the claim.
2. Liens. Any valid liens, such as Medicare, Medicaid, workers’ compensation or certain health plans, are resolved and paid from the recovery. See our settlement liens guide.
3. Disbursement. The settlement funds are deposited in the firm’s trust account. After the funds clear and liens are handled, the fee and costs are paid and the balance goes to you, with a written closing statement showing every dollar.

Contingency fees in New Jersey and New York

Injury cases are usually handled on a contingency fee, meaning the fee is a percentage of the recovery and there is no attorney’s fee if nothing is recovered. Both states cap these fees by court rule.

In New Jersey, the fee schedule in R. 1:21-7 applies to personal injury cases, the fee is calculated after deducting case costs, and a lawyer may ask the court to approve a reasonable fee above the schedule in an appropriate case.¹³ In New York, each Appellate Division department has an equivalent rule allowing the one-third Schedule B fee.¹⁴

How long it takes

Everyone wants a date. The honest answer is that it depends on how long treatment lasts, how clear fault is, how many parties are involved, how busy the court is, and how the insurer approaches the case.

As a general picture from experience, not a promise, a case that settles before suit often resolves within several months after treatment ends. A case that goes into litigation commonly takes one to three years, and complex cases or cases that go to trial and appeal can take longer. Your lawyer should update you at each stage and tell you when something changes.