A Step By Step Guide to Making a Personal Injury Claim: Step 10


The attorneys at Casey & Devoti recently published a Step-By-Step Guide to Making a Personal Injury  Claim.  This is the final post in the series, which  highlights the various steps throughout the personal injury claim process.  We hope you find the high level of detail informative.  If you would like a copy of the complete step-by-step guide, email us at info@caseydevoti.com.

If you have any questions or would like to discuss your specific situation, Matt Casey and Matt Devoti are happy to meet with you for a free, no-obligation consultation.

Step 10 – Post-Judgment

Choices made by another injured you. You required medical care and, for a period, were unable to work.  Eventually, you retained legal counsel and attempted to settle your claim.  You filed suit as you were unable to amicably resolve your dispute with the other person’s insurance company.

You made it through trial with the assistance of your lawyer. The trial of your case was tough.  You faced the stress of the unknown.  And, as expected, defense counsel zealously defended his client, challenging various aspects of your claim.  At the end of the trial, the jury found in your favor and awarded a sum of money compensating you for those harms and losses you suffered.

You thought the claim process was over. But, it’s not.  In fact, your lawyer tells you that you’re entering another phase of the process – the process that follows judgment or “post-judgment” process.

In Missouri, every party to a suit has the right to challenge the judgment through appeal. The appellate process entails asking a higher court – called the “Court of Appeals” – to negate the judgment entered by the trial court.  If successful, the appealing party wins the opportunity to re-try her case before the trial court.

However, a party cannot directly appeal a judgment based upon a jury verdict. Rather, the party must first give the trial judge an opportunity to correct the error she believes that resulted in the adverse decision.  This is done by filing a “motion for new trial”.  The motion must bring to the judge’s attention each legal error the losing party believes occurred during the trial.  In addition to pointing out the errors, the party must also explain to the judge how the errors “prejudiced” the jury’s verdict.  In sum, the losing party must show both the existence of an error and that the error materially affected the trial’s outcome.

If successful, the motion will result in a new trial. Following hearing on the motion, the judge will grant the losing party a new trial and schedule the case to be re-tried.

All is not lost if the motion for new trial is not successful. The losing party may then appeal to the higher court.  The appellate process starts with the filing of the “Notice of Appeal”.  The party filing the Notice is called the “appellant”.  The appellant files the Notice with the trial court’s clerk.  The Notice identifies those errors which prejudiced the jury’s verdict.  Typically, the errors cited in the Notice mirror those identified in the motion for new trial.  The losing party must not pursue all errors she argued in her motion for new trial.  However, she cannot add errors to the Notice which she did not bring to the attention of the trial judge in her motion for new trial.

Once the Notice is filed, the appellant must begin the process of compiling all the written materials that are necessary for the Court of Appeals to consider her claims of error. Missouri law requires the appellant to always file certain documents – documents like the pleadings and the trial court’s docket sheet.  The transcript of the trial is also often filed.  The rest of the materials depend upon the issues on appeal.  These materials are compiled and filed together.  The compilation is called the “Record on Appeal”.

Missouri law provides the appellant 180 days to compile and file the Record. Once done, the opposing party or “respondent” may supplement the record, if necessary.

Thereafter, each party prepares and files their own “brief”. The job of the brief is to argue in detail why or why not the case should be re-tried.  Briefs are typically very extensive.  Briefs must bring to the appellate court’s attention the statutes, rules and cases that speak to the dispute as well as specifically reference the documents and transcript portions that support their position.

Both parties have the right to orally argue their positions to the Court of Appeals. This process is called “oral argument”.  A “panel” or group of three judges hear most cases.  Counsel take turns presenting their argument to the panel, with the appellant always presenting first and, in most cases, last.  Usually, the parties are given no more than 15 minutes to present their side.  During the argument, the appellate judges may ask questions.

Cases are taken “under submission” by the panel, meaning that the panel never announces their decision at or immediately after oral argument. Rather, the panel will issue an order.  The order tells the parties how the appellate court rules on the issues.  Sometimes, these orders are extensive, providing specific direction on why the appellate court finds the way it did.  These orders are called “opinions” and are published for future reference by other parties.

The order always tells the parties how the case is disposed. The order’s direction that the judgment is “reversed and remanded” means that the appellate court finds in favor of the appellant and that she is entitled to a new trial; the cases is “remanded” or returned to the trial court for further action.  The direction that the judgment is “affirmed” means that the appellant loses and the trial court’s judgment stands.  Once affirmed, the trial court’s judgment is final.

The typical appeal takes about one year from filing of the Notice to entry of the order following argument.

In limited situations, the losing party may appeal the Court of Appeals’ decision to the Missouri Supreme Court. However, the losing party doesn’t have an absolute right in most cases for the Supreme Court to hear its dispute.  Rather, the losing party must show the Supreme Court that there is something novel about the dispute that justifies the Supreme Court hearing the case.  This process is called “transfer”.

The Supreme Court accepts very few cases.

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