What to Expect During a Drowning Accident Trial in Upstate New York

1. Pre-Litigation: Consultation and Investigation

Preparing to take a case to trial is an intensive process.

Before filing a lawsuit, you’ll likely need to schedule a free consultation with a drowning accident attorney. Even if you’re confident in your claim, a lawyer can typically help assess your chances of obtaining compensation.

Depending on the circumstances of your case, a drowning accident attorney may recommend taking the following steps:

1. Retaining counsel;
2. Reviewing the evidence you’ve already obtained;
3. Identifying the correct defendant, or defendants;
4. Initiating an investigation, and sending spoliation letters to prevent the destruction of evidence; and
5. Assessing your damages, the extent and type will depend on whether you are filing a personal injury lawsuit, a premises liability complaint, or a wrongful death

Once the facts of your case have been established, your attorney may draft a lawsuit and file it in court. However, investigations often continue even after litigation begins, as more evidence could become available during discovery.

2. Filing Your Claim in Court

Your lawsuit, sometimes termed a “claim,” a “complaint,” or a “pleading,” must be filed in a court of appropriate jurisdiction. In New York, most drowning accident-related proceedings take place in the following:

1. A New York Supreme Court, which oversees both criminal prosecutions and civil claims. Most counties—including Erie County, Monroe County, and Onondaga County—have their own supreme courts.
2. A New York Court of Claims, which has jurisdiction over most complaints filed against the state and other government entities.
3. A New York Surrogate’s Court, which handles claims involving individuals who have died. Surrogate’s courts don’t typically administer civil lawsuits, but they must be engaged during probate and may be the only court permitted to distribute settlement proceedings to the victim’s living beneficiaries.

If a jury verdict or court-ordered award is appealed, your case may be escalated to a higher court, including the New York Appellate Division courts or the New York Court of Appeals.

3. Pre-Trial Discovery

Discovery is one of the most important stages in pre-trial litigation.

During discovery, attorneys for each side—you, and the defendant—will be able to request and review evidence held by the opposing party. Discovery can help fill in critical gaps and better establish liability. Its length is often determined by the complexity of your case and the defendant’s cooperativeness.

4. Pre-Trial Motions

Pre-trial motions can occur before, during, or after discovery. They are a routine part of the pre-trial process and may include requests to compel discovery, dismiss certain claims, or delay a scheduled trial.

5. Trial

If your claim proceeds to trial, you can usually expect proceedings to last between 3 and 10 days. Most trials follow a similar format:

1. Your attorney will make an opening statement, after which the defense will share theirs;
2. Both sides will have the chance to present evidence and arguments;
3. Each party may introduce different lay and expert witnesses, after which cross-examination may occur;
4. The defense will present closing statements, after which your attorney will give your final argument; and
5. The jury will receive instructions for determining a verdict and depart for deliberations.

6. The Most Likely Outcome: An Out-of-Court Settlement

Most drowning lawsuits don’t make it to trial.

If your case is underlain by strong evidence and the right theory, it will likely be settled before it goes to court.