Part II: The Many Procedural Defenses to a Personal Injury Action

By May 6, 2011 January 9th, 2018 Attorney-Lawyer, General Legal Advice

Personal injury lawyers are required to know many different aspects of the law, as many different aspects play into a civil action. The typical personal injury lawsuit combines knowledge of tort law, evidence law, ethics and civil procedure. These are not easy subjects and these legal areas are replete with vast statutes and treatises that every personal injury lawyer must be accustomed to in order to effectively advocate for his client. Many times, pre-trial hearings are conducted to go over various arguments that one party may have against another based on some of the issues listed above. One of the most common pre-trial occurrences is arguments regarding civil procedure. The rules of civil procedure are very stringent and require the utmost adherence at the outset of the case. Otherwise you may find yourself in court early to defend against possible dispute as to proper civil procedure, such as the following:

  • Improper Service of Process: It is of utmost importance that every defendant be properly served at the outset of the civil case. Service of process is detailed in the California civil procedure code and must be followed by the process server or whomever is serving the defendant. Actual physical service upon the defendant, assuming he is not in a place of worship, will generally and almost always be acceptable service. However, sometimes the defendant is not home or cannot be located at a given time. Under these circumstances, the law will allow service of process upon any competent adult member of the defendant’s household or known address. You cannot serve upon infants or the mentally incompetent. Service of process at the defendant’s known business address is sometimes acceptable too.
  • Improper Personal Jurisdiction: If your defendant is domiciled in a state other than California, you might run into issues with personal jurisdiction. A state within which a person is being sued must have the appropriate ties to the defendant, or the state lacks jurisdiction. For example, if you are involved in a car accident in Oregon and the defendant is from Nevada, it is unlikely that you will be able to sue him from the comforts of your home state of California. Oregon or Nevada will be your likely choices. However, personal jurisdiction can be found in the above example if the defendant does business in California, holds property in California or perhaps once lived in California and has the intent to return. Regardless, in a multi-state personal injury action, personal jurisdiction may become an issue pre-trial. Rest assured your lawyer will be prepared with all the rebuttal evidence he needs.
  • Venue: Similar to the above issue, improper venue is commonly raised by defendants who find it extremely inconvenient to have witnesses attend the trial. With the proper arguments, the court will grant a motion to move the case to a different venue within the state. If the defendant moves to change venue out of state, the court will dismiss the case without prejudice and you will likely have to refile in a move convenient location