Despite what you may see on television, the early steps of a personal injury lawsuit have little or nothing to do with an actual court of law. Making informed decisions in the early stages can mean the difference between a swift, acceptable settlement and a protracted court battle that can drag on for months -- or even years.
Interviewing and retaining a competent, ethical and professional attorney is the first step that should be taken in most injury lawsuits (all but the most basic ones where there isn't much money on the line).
Personal injury attorneys can be a “dime a dozen.” They are the stars of daytime television commercial breaks, back covers of phonebooks and bus benches across the nation. And while there are many personal injury attorneys that both excel at their job and act as true advocates for their clients, there are scores of disreputable attorneys looking to make a quick buck.
Friends and family are often the best sources of information when choosing an attorney. Talk to people you trust and start collecting names of attorneys they’ve used. Interview attorneys until you find one you’re comfortable with. Any initial consultation in a personal injury case should be free-of-charge. If an attorney wants to charge for a consultation, move on to the next attorney.
Remember, you’re hiring someone that will navigate your way through rough and murky waters. Reputation, ability and professionalism are all important, but so is a sense of comfort with the attorney you hire. You want a counselor and an advocate; someone that you trust not only with personal information, but also with your personal and financial well-being.
See our section on Using a Personal Injury Lawyer for more on finding and hiring the right one.
In the early stages of a personal injury case, your attorney should draft a letter outlining the facts of the case from your perspective, and putting the potential defendant on notice that you intend to pursue a claim. The letter should describe the injuries you’ve suffered, set out why the other side is at fault, and request a dollar amount to settle the matter.
The initial demand letter should also request that the potential defendant contact his or her insurance company and inform them of a potential claim. Whether you were injured in a slip and fall, auto accident, or were the victim of medical malpractice, it is highly likely that the person or business responsible for your injury has insurance. Any settlement or verdict is likely to be paid through an insurance company.
Depending on the severity of your claim and the settlement amount you requested in your initial demand letter, your case may resolve early. Generally, uninsured defendants or defendants that have been sued before are more inclined to settle out early. Either they do not want to report another claim to an insurance company, or have been through the litigation process and do not want to incur the cost of another lawsuit.
Insurance companies, ever cognizant of the cost of litigation, often try and engage in early resolution as well. Early resolution could be as simple as an exchange of information and medical records followed by some haggling over the dollars and cents. Or, an outside mediator could be employed to attempt to find common ground between the parties.
Early resolution can be a win/win proposition for the right case. If your injuries are relatively minor and the facts of the case are straightforward and not in dispute, insurance companies will want to save themselves the time and expense of going to court, thus saving you the cost of experts, filing fees and other expenses that come along with any suit. Early resolution offers defendants and insurance companies cost-certainty, and offers you financial recompense far faster than a court case ever could.
Be warned: as a trade off for settling early, insurance companies will often want to negotiate down from your initial demand. A discounted settlement is considered fair trade for expediting payment. Any offer of settlement should be discussed and analyzed with your attorney. While early resolution can be appealing, if it does not make you whole, it is the wrong choice.
The actual drafting and filing of a lawsuit with a court is the last step in the early stages of personal injury litigation. A formal suit is initiated through the filing and service of a Complaint stating the facts surrounding your injury, the laws or duties you contend the defendant violated in causing your injury, and the amount of damages you have suffered.
Once the complaint is filed, the middle stages of personal injury litigation commence. Costs begin to rise, and the entire process becomes dramatically more personal and invasive. The risk of dismissal and/or an adverse verdict dogs both parties, and proceedings that were cordial can pretty quickly turn adversarial. Your attorney, as ever, should be your strongest ally and greatest advocate going forward.
The early stages of a personal injury lawsuit can be rote, repetitive and frustrating. But attention to detail -- by you and by your attorney -- can often lead to an acceptable resolution to your case. Choose your attorney wisely, and the first steps you take on the road to a formal lawsuit will be sure-footed.