If your personal injury lawsuit has gotten to the point where you have settled the case or won a judgment at trial, then it is almost certain that the defendant has liability insurance. After settling an injury case, your lawyer will simply wait for the settlement check to come in the mail. If you won at trial, you should be prepared for a one to two year appeal process to play out before you will see a check for the judgment.
This article will address the usual procedures for processing a settlement or responding to an appeal in a personal injury lawsuit, and will close with a discussion of what often happens when the defendant is uninsured.
Once you settle a lawsuit, the lawyers will report to the court that the case was settled. The court will then issue an order of settlement, which will require the parties to complete all of the settlement papers within 30 or 60 days, depending on the court. The most important settlement paperwork is the Release.
The Release is a document prepared by the defense attorney that sets forth the settlement terms. There is no legal reason why it can’t be a relatively short document, but some defense attorneys and insurance companies insist on a ten or fifteen page document dense with legalese. Once the defense attorney prepares the Release, he/she will send it to your lawyer for approval. Depending on what is in the document, the Release can be very straightforward, or it can be objectionable.
Your lawyer will read it carefully to determine whether it is acceptable. Sometimes, the lawyers will argue for days over the terms of the Release. They generally reach an agreement, but, if they don’t, they will request that the judge decide. That will slow down the settlement considerably.
Once the Release is acceptable, your lawyer will send it to you to sign. You will usually have to sign it in front of a notary public, sometimes in triplicate. Before signing it, you will want to read it carefully and discuss it fully with your lawyer, asking all of the questions that you need to ask. Once it has been signed and returned to the defense attorney, there is no chance of changing of the terms.
Before your lawyer can disburse your share of the settlement proceeds to you, he/she must deal with any liens against your lawsuit. A lien is a legal right to someone else’s assets. The two kinds of liens that usually exist in personal injury lawsuits are medical liens and governmental liens. Medical liens are liens from the plaintiff’s health care providers and health insurers. Governmental liens are usually from Medicare, Medicaid, or from a child support agency.
Liens must be paid off before the plaintiff can receive anything from the settlement.
If you win your lawsuit at trial, the defendant will usually appeal. This is a long process. It will take a year or maybe even two years for the appeal to be heard and decided. The appellate court can do one of three things with the judgment:
If the appeals court upholds or reverses the judgment and your state has two levels of appellate courts, either you or the defendant can appeal again to your state’s supreme court. The supreme court can then uphold or reverse the judgment or send the case back to the trial court for a new trial. If your case is sent back for a new trial, then you have to do the whole trial all over again. And after the second trial is over, either side can appeal (again!). You can see why most plaintiffs agree to settle their cases.
Lawyers rarely take cases against people with no insurance, and even more rarely settle or try cases against people with no insurance. This is because most people with no insurance have limited or no assets. There is usually no good reason for suing someone with no money.
But occasionally there will be someone with some assets who for whatever reason does not have insurance -- or who has only limited insurance. In such a case, the settlement procedures would be the same as in a case where the settlement or verdict was funded by an insurance company, except that your lawyer would certainly want to get a certified or bank check from the defendant before turning over the signed Release or agreeing to dismiss a lawsuit.