A personal injury lawsuit is a formal demand for compensation for losses that the injured person has sustained. They can go through 7 stages:
- the victim gets hurt,
- the victim hires a personal injury lawyer,
- an insurance claim is filed,
- if no fair settlement offer is made, the victim’s lawyer negotiates on his or her behalf and gathers evidence to support their case,
- a personal injury lawsuit is filed,
- settlement negotiations begin as both sides gather evidence of the incident, and
- if no settlement is reached, the case goes to trial.
1. You get hurt
All personal injury cases begin with the victim getting hurt somehow. That injury is usually a physical injury. However, it can also be:
- mental,
- emotional,
- reputational, or
Some examples of injuries that can lead to a personal injury case are:
- breaking bones in a car accident,
- fatal injuries sustained in a dog bite incident, leading to a wrongful death claim,
- suffering nerve damage in a workplace accident,
- seeing a family member getting seriously hurt by someone else,
- getting slandered or defamed, and
- losing a contract with a business partner after they were induced to break it.
Some of these injuries were caused intentionally. Most, however, are accidental and the result of the other person’s negligence.
Just because the other person did not intend for you to get hurt, though, does not mean that they should not compensate you for your losses.
2. You hire a personal injury lawyer
You should strongly consider establishing an attorney-client relationship with a personal injury lawyer after getting hurt, especially if you suffered serious injuries. The legal advice of an experienced personal injury attorney from a reputable law firm can help you in a variety of ways. Your lawyer can:
- help you understand the extent of the losses that you have suffered,
- let you know if they think that a settlement offer is a fair one or not,
- relieve the stress of what is often an unfamiliar process for victims,
- gather evidence to support your case for compensation, and
- provide insight that is only obtainable by representing numerous victims like you before.
Having legal representation for a personal injury, or tort, claim can increase its odds of success and maximize the amount that you recover. Most attorneys who file civil lawsuits will accept payment on a contingency fee basis. This means you only pay them if your legal action is successful.
3. You file an insurance claim
In many situations, insurance coverage will apply to the situation in which you get hurt. This is particularly common in:
- car crashes, where drivers are legally required to carry liability coverage in their car insurance policies, and
- premises liability cases, also known as slip and falls, where there will likely be liability coverage in a business insurance or homeowners’ insurance policy.
After filing your insurance claim, the insurance company will make its initial settlement offer. This offer might be made even before you file a claim. In either case, it is designed to appear enticing while also deeply undercompensating you. Insurance companies are for-profit entities. Underpaying claims protects their bottom line.
If there is no insurance coverage for the at-fault party that hurt you, you can recover compensation by:
- filing an insurance claim with your own insurance carrier, if any of your coverage applies to your situation, or
- seeking to hold the at-fault party personally liable.
4. The claim is negotiated as evidence is gathered
Your personal injury lawyer will gather evidence showing you are entitled to more compensation. In the meantime, he or she will negotiate with the insurance company or adverse party on your behalf.
How your lawyer investigates your case will depend on the nature of the claim and the circumstances surrounding it. Some common tactics include:
- taking photos of the scene of a slip-and-fall accident,
- obtaining a police report of a truck accident,
- talking to eyewitnesses,
- taking depositions of relevant parties, and
- collecting evidence of your losses, like your lost wages, medical records, and medical bills.
As evidence is gathered, it becomes clearer what happened. The extent of your injuries and other losses also becomes clearer. This helps your lawyer and the insurance adjuster, or the lawyer representing the other side, determine a fair settlement offer.
Many personal injury claims settle at this stage. A fair settlement offer is made and the victim accepts it. To receive the settlement amount, you have to release your rights to file a lawsuit over it.
5. You file a personal injury lawsuit
If no fair settlement offer is made, the next step is to file a personal injury lawsuit. Up to now, you and the insurance company or adverse party would have been engaging in informal settlement talks. If these break down or become unproductive, you can escalate your claim by formally demanding compensation in court.
The lawsuit must be filed before the applicable statute of limitations has expired.
The initial filing is known as the complaint. It has to be filed in court and a copy has to be served on the adverse party, now known as the defendant. There may be more than one defendant.
When you file the lawsuit, you become the plaintiff.
Soon after the complaint is filed, the court will schedule a trial date.
6. A settlement is negotiated
Settlement negotiations continue after a personal injury lawsuit is filed. Additionally, the legal teams representing both the plaintiff and the defendant will continue to gather evidence to support their case.
Settlement conferences will be scheduled. During these, attorneys for both sides will try to arrange a settlement they can agree upon. The court will pressure them to settle.
As more evidence is gathered and you progress in your recovery, it becomes increasingly apparent what you deserve. This should shrink the distance between your demands and the defendant’s offers.
This, along with the fact that trials are risky for both sides, are why the vast majority of personal injury claims settle. One study found that 98 percent of personal injury cases were resolved without a trial.[1]
7. The personal injury claim goes to trial
If the case is not settled or dismissed, it will go to trial. Your lawyer will present your case, arguing that you were hurt and deserve compensation. The defendant’s lawyer will argue that:
- you were at least partially to blame for your injuries,
- you were not actually hurt as badly as you say you have been, and/or
- someone else was responsible for your losses, not the defendant.
The jury, or the judge if it is a bench trial, will consider the evidence presented and issue a verdict.
If you are unhappy with the outcome, you may be able to appeal it.
What are some common types of personal injury cases?
There are a lot of different types of personal injury claims. They depend on how you got hurt and who could be responsible.
A few examples are:
- motor vehicle accidents,
- bike accidents,
- dog bites,
- medical malpractice,
- intentional infliction of emotional distress,
- slip and falls,
- negligent hiring,
- assault and battery and other intentional acts of violence,
- workers’ compensation claims,
- products liability claims, if you were hurt by a defective product, and
- drowning accidents.
What is the statute of limitations under personal injury law?
The statute of limitations is the law that limits how long you can file a lawsuit after getting hurt. The statute of limitations depends on the type of personal injury claim that is being filed.
In California, for example, the statute of limitations is generally:
- 2 years for most personal injury cases,[2]
- 2 years for wrongful death claims,[3]
- 1 year for defamation,[4] and
- 3 years after an instance of medical malpractice, or one year after you should have discovered the injury, whichever comes sooner.[5]
However, there are instances where the statute of limitations can be tolled or delayed.
Personal injury lawsuits that are filed outside of this time limit can be easily dismissed.
What compensation can I recover?
Accident victims are entitled to recover financial compensation for all their losses from the incident.
This is not confined to compensation for your medical expenses and professional losses like your lost wages. It also includes your pain and suffering and emotional distress, as well as your property damage. It even includes compensation for your loved ones’ suffering in the form of their loss of consortium.
In rare cases you can recover punitive damages.
However, if you were partially to blame for your injuries, shared fault laws may reduce what you can recover. State personal injury laws use either:
- contributory negligence rules, or
- comparative fault
These can reduce the compensation you can recover by your percentage of fault, or even bar you from recovering anything.
These laws do this by making the jury in a personal injury trial assign percentages of fault to each party. However, they can still influence a personal injury settlement because lawyers aim to settle a case based on how a jury would likely rule on it.
Legal References:
[1] Bureau of Justice Statistics – Civil bench and jury trial in state courts nationwide, 2005.
[2] California Code of Civil Procedure 335.1 CCP.
[3] California Code of Civil Procedure 377.60 CCP.
[4] California Code of Civil Procedure 340(c) CCP.
[5] California Code of Civil Procedure 340.5 CCP.
