The losing side has the right to appeal an adverse verdict to the Appellate Division. Appeals can be based upon a particular ruling that went against the losing party during the case, or upon the evidence as a whole if the verdict was against the weight of that evidence. An appeal can also be based upon the amount awarded being too high or too low. Appellate courts try not to reverse jury verdicts, so to have a jury verdict reversed requires a strong showing that something went wrong at the trial. If the plaintiff succeeds in convincing the jury and receives a verdict in a personal injury case and the defendant does take an appeal, one saving grace is that the defendant must pay statutory interest dating back to the date of the judgment if the appeal is unsuccessful. Because the statutory interest rate is 9% straight interest (not compounded) this can provide a deterrent to frivolous appeals by the losing defendant. The law, however, does not permit the plaintiff to receive interest on the amount awarded back to the date of the injury. Thus, the defendant does not have the same incentive to avoid delay during discovery as it has to avoid unnecessary delay during the appeal.

When all discovery is completed the plaintiff in New York files what is called the note of issue, which states that the case is ready for trial and requests that a trial be scheduled. If a specific judge has not been previously assigned to the case then one will be assigned with the filing of the note of issue and that judge will then be responsible for scheduling the case for trial. A judge may already be assigned at this point if some court intervention was necessary due, for instance, to a failure of one party to properly respond to demands for discovery made by the other or if a motion to dismiss the case was made. In medical malpractice case judges are always assigned early on as part of a special package of procedures that apply only to this class of cases.

The length of the discovery phase varies from case to case based upon many factors, some in the lawyer’s control, but most not. For the majority of cases the discovery phase measured from after the answer is filed or served takes about six months to two years. In complex product liability or medical malpractice cases, the period can be longer. Moreover, if the judge makes a ruling during the discovery phase that is appealed by one party to the appellate court, referred to in New York as the Appellate Division of the Supreme Court, then this process can take considerably longer.

Once the case is assigned to a specific judge the decision of when it will be tried is based upon a number of factors including: the type of case, judge’s backlog of other cases to be tried, other previously scheduled trials for the lawyers, availability of witnesses and others. Some cases are given a date certain for trial while others are put on a calendar and called for trial when they reach the top of that list. Typically more complex trials requiring medical and professional witness testimony such as medical malpractice and toxic tort cases will receive dates certain because of the difficulty arranging testimony from such witnesses on short notice.