In most personal injury cases, the injured person sends a demand letter to the person or business responsible for the injury, and asks for a certain amount of compensation. If the responsible party responds to the demand letter, the next step in the case is settlement negotiations.
However, a demand letter may be unanswered and ignored. This may be caused by an unwillingness to compromise, or a complete denial of any wrongdoing, among other reasons. At this point, you can either abandon your claim or file a lawsuit in court.
(Note: It is important to send the demand letter via certified mail to confirm receipt of the letter. Furthermore, before proceeding to court, you can attempt to contact the addressee of the demand letter and informally inquire into the reasons for his or her failure to respond.)
(For more on demand letters and the settlement negotiation process, see the articles we have filed under Settle Your Personal Injury Case.)
If your demand letter goes unanswered or isn't effective, you might want to talk with an experienced personal injury lawyer to determine whether your case is worth pursuing in court. The litigation process is complex. Things can take a while, and the process can get expensive (although most personal injury attorneys work on a contingency basis.)
When a demand letter fails and a settlement cannot be reached, the first step is to locate the appropriate court to handle your lawsuit (probably the local county branch of your state's court).
Once all the case information is gathered, you'll draft and file a legal document called a Complaint. The Complaint sets out all the facts of your case and states each claim (called a "cause of action") that you are pursuing against the defendant (the person you are suing). For example, you slip and fall on a slippery substance at a convenience store. The Complaint should explain what happened at the store that caused your injury, the parties involved (who owns and operates the store), the legal theories under which you're asking for compensation), and the relief you're seeking (sometimes an exact dollar amount, sometimes not).
Keep in mind that there is typically a court filing fee of $300 to $600.
Discovery is a process where the parties exchange information related to the lawsuit. It's often the most complicated and lengthy part of a personal injury lawsuit. During discovery, you want to obtain important information from the defendant and other persons with knowledge of your case. This information can be obtained by submitting written questions or requests for documents to the defendant.
The written questions, referred to as "interrogatories," are submitted to the defendant in order to ascertain information about the incident and the defendant's role in any wrongdoing. The defendant must answer or object to the interrogatories within a certain time period, such as 30 days. For example, in the convenience store slip-and-fall case mentioned above, you could ask the defendant to "specify whether an employee washed the floor on the date of the fall."
A request for documents usually accompanies the interrogatories. In a request for documents, you want to request any pertinent records that help prove that the defendant is liable for your injury.
Depositions are out-of-court proceedings where the injured person's attorney or the defendant's attorney ask questions of parties and witnesses. Answers are given under oath, and a court reporter is present to create a transcript of the proceedings. The attorney will file a notice with the court and can compel a person to come to the deposition and provide oral answers to questions related to the case. Testimony given during a deposition, as well as answers to interrogatories and documents produced, are admissible in court.
It's important to remember that settlement remains a possibility throughout the lawsuit. You can agree with the defendant to settle the case at any time before the final verdict in your case. In some cases, a settlement can be reached at mediation. Mediation is a legal proceeding in which the parties meet with a neutral third party and attempt to settle the case. The case can be resolved if the parties come to an agreement at mediation.
The last step in a personal injury lawsuit is trial. You and the defendant will present the case to a judge or jury and they will decide whether you will recover -- and if so, how much -- from the defendant for your injuries. Trial is costly and the majority of cases will settle or be dismissed prior to this stage.
If you're having trouble settling a personal injury claim, see the following related articles:
Does Your Personal Injury Case Warrant a Lawsuit?
Tips for Getting the Best Injury Claim Settlement
Are Lawyers Optional in a Personal Injury Case?
Overview of The Injury Settlement Negotiation Process
Proving Your Personal Injury Case
If you need advice on your particular case, you'll need to talk to an injury attorney in your area.