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What Is the Personal Injury Lawsuit Process?

Herrig & Vogt Sept. 25, 2019

No one wants to become involved in a lawsuit, but if you have been injured in an accident caused by negligence or by the intentional conduct of another party, you might not have a choice. A personal injury lawsuit may be necessary to enable you to recover compensation for your medical care, lost earnings, and pain and suffering.

The following information about the process should help you to have a better understanding of what to expect while pursuing a personal injury claim.

1. Document the Accident

What you do at the scene of an accident can affect what happens in your personal injury lawsuit. You should begin preparing for your claim immediately after the accident occurs. Documenting the accident preserves essential information your attorney will need, including:

  • The names and contact information of other parties involved in the accident.

  • Photos of the accident scene and of the injuries you suffered.

  • Names and contact information of any witnesses to the accident.

2. Visit a Doctor

In some cases, an injured party is immediately treated on the scene of an accident by emergency responders and possibly transported to the hospital for further evaluation. Even if you are not taken to the hospital by ambulance, you should:

  • Immediately see a physician for an evaluation and treatment of your injuries. 

  • Document all visits to your doctor and any treatments for injuries related to the accident.

  • Make a list to give to your lawyer of all health care professionals you see in connection with your injuries and any medications prescribed by them.

3. Consult with A Personal Injury Attorney

You should meet with a personal injury attorney as soon after the accident as possible. Bring all of the reports, pictures, and information you gathered at the time of the accident for your attorney to review.

An experienced personal injury attorney will use the first meeting with you to ask questions about the accident and your injuries to help determine if there are grounds to pursue a claim. The consultation, for which most personal injury lawyers do not charge a fee, provides you with the opportunity to ask about the attorney’s experience and success rate handling cases similar to your own. 

Reputable attorneys will not pressure you or make promises of huge settlements to entice you into retaining them. Instead, they want you to trust in their ability to provide outstanding service and to be comfortable about your decision to retain them.

4. Investigate and Contact the Insurance Company

An investigation into the circumstances of your injury will be conducted by your personal injury attorney. The evidence gathered will give the attorney a clearer understanding of the party at fault, the extent of your injuries, and the best strategy for obtaining the compensation you need and deserve. The length of time it takes to complete the investigation can vary, depending upon the availability of reports and witnesses.

The attorney will keep you informed about the results of the investigation and discuss strengths and weaknesses in the evidence supporting your claim for damages. It is at this stage that your attorney will contact the company insuring the other party to discuss the claim and let them know that you have legal counsel.

5. Efforts to Settle out Of Court

Settlement negotiations in personal injury cases are an ongoing process. Once your lawyer obtains copies of your medical records to fully understand the extent of your injuries, negotiations will take place with the insurance company and the attorney defending the other party. 

An attorney dedicated to looking out for your best interests might hold off on making a settlement demand until you have recovered sufficiently from your injuries to have reached a point of maximum medical improvement. Settling a case too soon could fail to take into account future medical treatment. 

Your attorney will keep you informed about negotiations and won’t agree to a settlement without your approval. Settlement discussions go on for as long as both sides believe there is hope of a resolution.

6. File a Lawsuit with The Court

The filing of a lawsuit does not mean your case will go to trial and not be settled. The majority of personal injury cases are settled before trial, but there are time limits for commencement of a lawsuit, referred to as the statute of limitations. For instance, the California statute of limitations for personal injury lawsuits is only two years. Failing to file a lawsuit before expiration of the statute of limitation could cause you to lose the right to sue.

Following are the stages of a personal injury lawsuit:

Initial pleadings: Your attorney will prepare and serve a complaint on the other party. The complaint contains the allegations upon which your claim for damages is based. The other party, referred to as the “defendant,” has 30 days to serve an answer admitting or denying the allegations. How much time is spent on this stage of the lawsuit depends upon how long it takes for your attorney to prepare and serve the complaint, but experienced personal injury lawyers should be able to get a complaint completed within a matter of days once the decision is made to start a lawsuit.

Discovery: Either party to the lawsuit may demand additional information from the other. Discovery takes the form of documents, testimony during depositions, reports from doctors and other experts, and the names of witnesses in the position of the opposing parties. The discovery stage can take several months to complete.

Motions: Motions may be used by either party to ask the court to do something. For example, attorneys can ask the court to order a party to comply with a demand for discovery or risk sanctions, including dismissal of a claim or a defense for failure to comply. The party served with a motion has 14 days to serve written opposition to it and the other party has 5 days to respond to the opposition papers. 

Mediation: The process of mediation may take place at any time upon request of the parties. A neutral mediator hears from the parties and their lawyers and attempts to negotiate a settlement. Mediation is not binding, which means the mediator cannot force a party to accept a particular result. A mediation session could take several hours with cases usually requiring only one session to determine if the case can be settled.

Trial: It can take a year or more for a lawsuit to reach the trial stage. The plaintiff, the party making the claim, presents evidence through documents and witnesses to support the claim. The defendant has the opportunity to present evidence in opposition to the claim. Once each side has completed presenting evidence and the attorneys present closing arguments, the judge or jurors deliberate and reach a decision known as a “verdict”.

A verdict after trial does not mean the case is over. The losing party has the right to make post-trial motions asking the judge presiding over the trial to set aside or alter the verdict. Either party also has the right to file an appeal asking for review by an appellate court.

The Importance of Finding the Right Lawyer

The attorney you choose to handle your claim for personal injuries plays an essential role in the outcome. A skilled and experienced attorney understands the process of negotiating to achieve a successful settlement, but has built a reputation as someone who is prepared to take a case to trial in order to achieve an outcome that is most beneficial to you. Before you decide on the attorney who will represent you, be sure to compile a list of questions to ask the personal injury lawyer.