For the average person, the process of personal injury claim is typically shrouded in mystery. If you or a loved one have been injured due to someone else’s negligence or recklessness, you might not even be aware you have a case. You need to protect yourself by learning the basics of the claim process to identify the best course of action and secure compensation for your injuries and losses. In this article, you will find an overview of the typical personal injury claim process, as well as in-depth explanations about each step.
What Are the Steps in a Personal Injury Lawsuit?
How does personal injury claim work? The answer can be divided into six general steps:
- Contacting a Personal Injury Lawyer
- Determining Responsibility and Sending a Demand Letter
- Filing a Lawsuit
- Discovery Phase
- Mediation and Negotiation
- Possible Trial
These steps will be covered in more depth below.
6 Steps of the Personal Injury Claim
Filing a claim can be an intimidating process, especially if you have no idea what you are doing. Most people do not expect to be involved in an accident serious enough to warrant a lawsuit. Thankfully, the personal injury claim process follows a relatively predictable path, regardless of what type of claim you are filing.
1. Get a Free Consultation From a Personal Injury Lawyer
When you have decided to file a claim, your first step should always be to consult an experienced personal injury lawyer. Most lawyers offer a free initial consultation, so take advantage of the opportunity. You will want their expert legal advice on concerns such as:
- If you have grounds for a case
- What your case may be worth
- Typical outcomes for similar cases
- Any problems or difficulties that could arise
If the consultation goes well, consider hiring them to assist with the rest of the claim process. They can help you gather the right evidence, build a solid case, and handle negotiations with stubborn insurance companies. A previous study by the Insurance Research Council (IRC) found that victims who hired attorneys typically walked away with 40% higher settlements than those who did not. Lawyers have the expertise to handle exploitative insurers and will fight to protect your best interests at every turn.
2. Case Reviewed, Demand Letter Sent, & Negotiations May Begin
After hiring a lawyer, it is time to comb through the details of your case. An important step here is establishing who was responsible. To successfully sue someone for a personal injury, you need to prove that they had a duty of care to you and were negligent in fulfilling it. For example, a property owner must keep their property safe for visitors and passersby. If they neglected maintenance and created hazardous conditions (torn carpeting, slippery floor), they will be liable for injuries those hazards caused.
Once it has been established that someone was at fault, you need to notify them of your demands. This will be accomplished by sending a demand letter. This letter will lay out your argument for why the insurance company owes you compensation. Details can include:
- A summary of your injuries
- Why the at-fault party is responsible for your injuries
- The medical expenses you incurred for treating your injuries
- The income you lost from taking time off work for your injuries
- The pain and suffering caused by your injuries
The last three in particular will be the basis for the compensation amount you are seeking. The compensation should cover all the expenses for your injuries, whether they have a financial value or not. Your lawyer can negotiate with the insurance company to work out a fair settlement, but if they underpay or flat out refuse, the next step is filing a lawsuit.
3. After Lawsuit Is Filed
You can think of a lawsuit as a legal complaint. As the insurance company did not want to settle fairly, you need to report them to a higher power — the court. Your lawyer can handle the drafting and filing.
After the lawsuit has been filed and served to the at-fault party, they have the right to respond. This will typically be accomplished through a written response that addresses each of the facts in your complaint. When the answer has been filed, the at-fault party can then file a motion to dismiss the case. Most courts do not grant this motion and will instead move the case to the discovery phase.
4. Discovery Phase
Discovery is usually the longest part of the process. During this phase, both parties will exchange information to help build up their cases. You could request documents (like records, emails, etc.) or ask factual questions. They can also request the same from you. You may end up in front of a judge during this stage to sort out disagreements.
Deposition is another crucial part of this stage. A deposition is a question-and-answer under oath. Any information gained can be used in the case. You, the at-fault party, and any witnesses can all be called subject to deposition. Consult with your lawyer to avoid making statements that could compromise your case.
5. Mediation and Negotiation
Ideally, the process for your personal injury claim ends here. Mediation is essentially another chance at negotiations. A neutral party will mediate the discussions to help both parties reach an agreeable compromise. If you manage to agree on a fair settlement, there is no need for costly court proceedings. If the at-fault party truly refuses to back down, your case can go to trial.
6. Possible Trial
If a trial is unavoidable, the court will set the date for your hearing. The hearing typically begins with jury selection. Afterward, both parties will be given time to present opening statements.
As the one that filed the lawsuit, you can call witnesses and present evidence. You may also be called to testify and be interrogated by the at-fault party’s attorney. The witnesses you call can also be subject to the same interrogation.
After your attorney is done presenting evidence, the opposing side gets their turn to provide evidence. When they are done, both sides can then present their closing arguments.
If there is a jury, the judge will give them guidelines for applicable laws before they begin deliberation. They will weigh the evidence provided and use it to come to a decision.
Ideally, the jury will rule in your favor. There is a limited time window after the decision where either side can make an appeal. After this period passes, the decision is final.
Personal Injury Claim Settlements
The goal for your personal injury claim should not be a trial. 95% of personal injury cases are settled before trial. This is in everyone’s best interests, as going to court can be an expensive and time-consuming process. Most cases will be resolved through mediation and negotiation.
When a fair settlement is agreed upon, the amount is finalized and a written record is made. Some additional conditions can be included, such as agreeing to not pursue further compensation in the future. The record will then be submitted to the court, where it turns into a legally binding contract.