If you have been injured in an accident caused by another person’s negligence, you need financial compensation for your injuries.
You may be wondering whether or not the negligent party’s insurance company will offer you a settlement, or whether it will be enough to pay for your medical treatment, lost wages, and your pain and suffering.
While there are good reasons to seek a settlement first, if negotiations break down and the insurance company doesn’t offer an amount that you’re willing to accept, your other option is to pursue damages in a court of law.
In this article, we describe the process of pursuing a personal injury lawsuit to get compensated for injuries.
Determining Whether You Have a Viable Case
A successful personal injury lawsuit must establish three things:
- That a person was severely injured in an accident
- That another person had a Duty of Care to avoid harming the injured person
- That their neglect of that duty at least partially caused the accident and thus makes them liable for financial damages associated with the injuries
For example, if you were struck by an automobile while crossing the street in a marked crosswalk and were in the hospital for several days, you clearly have a potentially viable personal injury case.
- You were admitted to the hospital, lost time from work, and were billed for emergency and other medical treatment. This demonstrates the severity (and financial impact) of your injuries.
- The law requires drivers to yield to pedestrians in crosswalks. This constitutes a duty of care.
- You were struck when the driver failed to yield. Their neglected duty of care caused the accident.
When to File a Lawsuit
Pursuing compensation in a court of law for your injuries and damages resulting from another party’s negligence typically entails substantial trial expenses and higher attorney fees, which are generally subtracted from your award or settlement. The process can also last for months or even years, and carries the risk of losing.
For these reasons, in most circumstances, a lawsuit will be brought only when settlement negotiations with the other party’s insurer have failed to produce an acceptable offer for compensation.
The Complaint and Answer Phase
Your personal injury attorney will submit a complaint to the court in the jurisdiction where the accident occurred, including the following information:
- A detailed description of the accident in which you were injured
- Allegations of liability (fault)
- A declaration of your need for compensation, supported by evidence including financial and medical records
Your complaint is then “served” (officially delivered) to the person or entity you’ve named as the negligent party. They must “answer” this complaint in writing within a given timeframe (usually 30 days from the date of service). The answer document prepared by the negligent party’s insurance company attorneys will include an admission or a denial of liability.
The Discovery Phase
The discovery phase of a personal injury trial is the stage during which you bring forth all of the evidence you’ve collected, including:
- Police documentation
- Photo or video evidence
- Eyewitness testimony
- Expert testimony (especially medical experts)
- Medical records
- Financial records
Any evidence that may be pertinent to your case should be submitted during the discovery phase. The insurer’s lawyers will likewise gather and submit evidence to refute or minimize their liability.All of this evidence will then be shared by your lawyer and the insurance company attorneys. The discovery process can include deposition (oral questions “under oath”), as well as written questions and requests for documentation, by either party.
The Motions Phase
Motions are requests submitted by either party to the court in an attempt to get the judge to take action on a particular detail of the case.
For example, the defendant can file a motion with the court asking the judge to dismiss the case before it ever goes to trial. Such a dismissal may be granted if you fail to produce compelling evidence that the monetary award you’re requesting has a viable basis, or that the named negligent party is substantially liable for your damages.
Attorneys for either party typically have 28 days to file a written response in opposition to any motions submitted by the opposing party.
Sometimes it is unclear from the documentation and evidence submitted whether a motion should be granted. In such cases, the judge may schedule a hearing to seek clarification on key aspects of your case. This process can result in a motion being denied or granted, and/or a case being dismissed.
Courts will often order a settlement meeting conducted by a skilled neutral mediator in an effort to avoid trial.
Although the case will proceed to trial if mediation fails, settlement negotiations will commonly continue during the trial, as attorneys for each party come to understand more about the strengths and weaknesses of each side of the case and the likely outcomes.
During the trial, the court will attempt to reach two critical decisions:
- Is the defendant liable for your injuries?
- Is the amount you’ve asked for fair compensation for your losses?
If the answer to the first question is yes, you’ll likely receive a verdict in your favor. If the answer to the second question is yes, the defendant will likely be ordered to pay that amount to you in restitution.
If the answer to either question is no, you may receive no award at all or the court may order the defendant to pay a reduced amount.
Stages of a Personal Injury Trial
The trial can be broken down into six parts:
- Jury selection – a jury of your peers is selected.
- Opening statements – each party (or typically, their lawyers) states their case.
- Witness testimony and cross-examination – each party presents evidence in support of their claims and questions opposing evidence.
- Closing arguments – each party restates their case, in a final effort to sway the opinion of the court.
- Jury instruction – final instructions from the judge to the jury, such as a reminder of what burden of evidence must be met in order to find liability
- Jury deliberation and verdict – the jury discusses the case in a closed session and attempts to reach a unanimous decision
Either party to a personal injury trial may file an appeal, which is a challenge to the court’s decision due to errors in the application of law and procedure in a trial. If an appeal to a higher court is granted, the verdict or the award in your case could be changed, or a new trial ordered.
Likewise, if you lose your case, you may be able to appeal if you believe there was an error in the court proceedings. An insurance company that has lost a personal injury case will often use the threat of appeal to negotiate a lower settlement, even after a jury award.
Consult a Qualified, Specialized Accident Lawyer
Typically, the fastest and most reliable way to get the financial compensation you need after being injured in an accident is to craft a powerful demand letter and negotiate a fair settlement with the negligent party’s insurance company, although negotiation doesn’t always succeed.
Be sure to discuss your case with an experienced personal injury lawyer prior to even considering taking an insurance company to court over a personal injury accident.
A free case evaluation with a seasoned attorney can help you get a better sense of the value of your case, the best way to get a reasonable, timely settlement, and the risk and expense as well as the potential benefits of litigation.