Managing the Personal Injury Case

This paper is written as more of a checklist directed to that section of your legal staff with responsibility for the office file opening procedure including the calendaring of important dates and deadlines. Most of you will probably already have in place a calendar and tickler system to track and keep up with prescription deadlines. The recommendations in this paper can be used to fill in any gaps or deficiencies in your office procedure.

Prescription deadlines, calendaring and tickler systems are crucial to the efficient management of a personal injury law practice. This section of the seminar attempts to highlight some of the most common deadlines the personal injury lawyer will encounter in the day-to-day practice.

In order to effectively manage a personal injury case one needs an efficient and reliable system of keeping track of deadlines and crucial dates. Many of the computer software systems for law office management will also come with a case management program that keeps a calendar and diary of cases. While these software systems are helpful, they are not without risks. First, the information any software system generates is only as reliable as the information inputted. Second, mechanical breakdown and computer crashes are a part of life in this information age. How then do you keep up with important deadlines and prescription dates?

If your office keeps a manual system only and prescription is regulated to a paper calendar or a log, what happens when those logs are lost through flood, fire, disgruntled employee? Because the risk of losing prescription dates is so critical to a personal injury practice, the safest means is redundancy, redundancy, and more redundancy.

The manual dairy systems should be backed up by the computer system and the computer system should be backed up by the manual system. Do not fall into the trap of simply relying on one system and neglect the other. Each diary system should operate independently and each should be used to double-check the other.

The Unopened File

Perhaps the most worrisome situation is the case that has not formally been opened in your case management system. These situations arise when you have spoken with the client and obtained some of the pertinent facts, but have not yet decided whether to undertake the client’s representation; or the client has not yet formally signed a retainer agreement. If the prescription date or other pertinent deadlines i.e. (Answers, Exceptions etc) are less than six months away, the file should be opened so that the pertinent deadlines are placed on your calendaring system. It is recommended that every thirty-days a notation should be made in your calendaring system to review the file and determine whether you will undertake the client’s representation.

Practice Tip: After 30 days you should make a determination of whether you will represent the client in the underlying action. If you decline the matter the appropriate letters should be sent to the client advising of the applicable prescriptive period and the fact that you do not represent them and will take no action on their behalf.

The Opened File

Once you decide to undertake the client’s representation, the matter should follow your established file opening procedure. Most personal injury or negligence actions will be governed by the one-year prescriptive period set forth in La. C.C. art. 3492. The one-year prescription deadline is seldom missed by most personal injury practitioners.

Practice Tip: Do not rely solely on the client’s recollection of the accident date. Independent confirmation of the date of the accident/injury should be obtained by cross-referencing the incident report with witness testimony, ambulance run reports or medical records.

Uninsured/Underinsured Motorists Claims La. R.S. 9:5629 2 years

If the personal injury case involves an auto liability carrier, then consideration must be given to whether or not the UM coverage is triggered. Because your legal staff may change from year to year, standard procedure on all automobile cases should include a diary system that advised of the two-year anniversary of the accident. The seriousness of a client’s condition may not reveal itself until months or even years after the accident. Therefore, many times you will not know at the outset whether UM is applicable to the claim.

If UM is not addressed initially, then you should diary the two-year anniversary and have the file brought to you six months prior to the two-year anniversary. It may be disastrous to have to file a UM claim and not know the identity of the UM carrier. Obtaining UM information may take weeks or longer, especially if your client is the type that changes insurance carriers every six months.

Practice Tip: If the claim is one that will exceed the underlying policy limits and your client claims that he/she did not have UM coverage applicable to the accident, GET IT IN WRITING!

Service of Process La. C.C.P. Art. 1201 90 days

Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. See R.S. 9:5801, providing for non-interruption of prescription if service not timely requested. This 90-day provision went into effect on January 1, 1998 and affects those cases filed on or after the effective date. See, Acts 1997, No. 518.

Practice Tip: If the suit is filed and service is not requested upon all named defendants mark the calendar of the initiating attorney for sixty-days after filing to ensure that service is requested within the 90 day time period.

Answer & Exceptions La. C.C.P. Art. 1001 15 days

Once the defendant is served with plaintiff’s petition for damages an Answer is due 15 days thereafter. It has become standard practice for defense counsel to seek an extension of time to respond or otherwise answer. If Exceptions are filed prior to the Answer, the defendant has 10 days after the Exceptions are overruled in which to Answer. If an amended petition is ordered, the defendant has to Answer within 10 days after service of the amended petition.

Medical Malpractice La. R.S. 9:5628 1yr/3 years

La. R.S. 9:5628 requires that all medial malpractice claims be filed within one year of the date of the alleged act, omission or neglect, or within one year from the date of discovery of the alleged malpractice. Even if the claim is filed within one year from the date of discovery, it is deemed prescribed unless it is filed within 3 years of the alleged malpractice.

In addition to the prescription deadlines set forth above, there are other dates of crucial importance when handling a medical malpractice case. The filing of a claim under the Medical Malpractice Act shall suspend the time for filing suit until:

A. 90 days following notification by certified mail to the claimant of the issuance of the panel opinion (1299.47A(2) (a).

B. 60 days following notification be certified mail that the healthcare provider is not covered. 1299.47 (A)(2)(a).

C. 90 days after notification by certified mail form the attorney chairman of dissolution of the medical review panel (1299.47B(3).

Practice Tip: All applicable dates should be posted on the inside of the general file/correspondence file with blanks or all the applicable deadlines. Because these deadlines can become confusing, the attorney should be the primary person handling diary systems.

Abandonment of Suit La. C.C.P. Art. 561 3 years

Once the lawsuit is filed, all personal injury cases should be “tagged” so that it is brought to the initiating attorney 30 days prior to the 3 year anniversary of the date of filing. If there have been no steps in the prosecution or defense of the case in three years, then the case is deemed “abandoned” without need of a formal order.

The time limitation set forth in La. C.C.P. Art. 561 have been shortened to three (3) years as opposed to five (5) years. The 3-year time period went into effect July 1, 1998, and applies to all pending actions. See Section 2 of Acts 1997, No. 1221.

Practice Tip: A yearly review of all cases on your inventory should reveal any cases that are at risk of abandonment.

Jury Trial La. C.C.P. Art. 1733 10 days

A demand for jury trial if not made in the original petition, may be filed no later than 10 days after service of the last pleading directed to any issue triable by jury or the granting of a motion to withdraw a demand for a trial by jury. La. C.C. Pro. Art. 1733(c).

Practice Tip: If for tactical reasons, a jury request is not made in your original pleading the personal injury practitioner should have his/her staff “on alert” awaiting the defendant’s Answer. Ten days after receipt, the initiating lawyer’s calendar should be marked to ensure that a request for jury trial is timely made.

Jury Bond La. C.C.P. Art. 1734 30/10 days

Once the case is set for trial, the jury bond is due no later than 30 days prior to the trial date. If the bond is not timely filed, the other party shall have an additional 10 days to file the bond. See La. C.C. Pro. Art. 1734.

Attorney Return of Papers La. C.C.P. Art. 3496 3 years

Under La. C.C. Art. 3496, a client in a personal injury action has the right to seek the return of his/her papers delivered to an attorney for purposes of a lawsuit. The three-year period begins to run from the rendition of a final judgment or the termination of the attorney-client relationship.

Once a personal injury action is resolved by settlement, judgment or an end of the attorney-client relationship the client should be delivered his medical records, tax information and wage information provided to the attorney throughout the litigation. If these documents are not returned at the conclusion of the case, the diary system needs to be activated to ensure that the documents are not discarded before the three-year period.


Your legal staff should become very familiar with the deadlines applicable to a personal injury practice. New and old employees should be made aware of the malpractice implications for missed prescription deadlines as well as other important dates. Whatever system your firm may use, there is no substitute for a knowledgeable well-trained and competent staff. Your calendaring system is only as good as the people handling it. No computer software or manual calendar can take the place of a good staff.


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