You've been hurt—maybe in a car accident, or by a doctor's carelessness, or in a slip and fall—and you're trying to figure out how to file a personal injury (PI) lawsuit. At the risk of over-simplifying matters, much of what you need to know comes down to these five deceptively simple-sounding questions.
While the questions sound simple, the answers are more involved. We'll walk you through those answers so you'll be better prepared to file your personal injury suit.
Before we tackle those questions, here are some things you should do to prepare for filing a lawsuit. They'll help you to answer our questions and might improve your chances of success with your PI case.
A personal injury lawsuit is a type of civil case. Both sides must follow detailed court rules and procedures. A judge supervises the entire process, resolving pretrial disputes and presiding over a trial if the case doesn't settle.
In most cases, a lawsuit follows after you've been unable to settle your personal injury insurance claim. An insurance claim is an informal process that involves you and an insurance adjuster exchanging information and trying to negotiate a settlement of your claim.
The days and weeks after you've been injured can be hectic and confusing. To the extent you can, try to focus on these tasks to move your case forward:
To make an informed decision about whether to file a PI lawsuit, you should understand the basics of personal injury law. Specifically, take the time to learn about:
To succeed in a PI lawsuit, you must prove that someone else—a person, a business, or the government—is legally responsible for your injuries. How do you decide who to sue?
As a rule, you should sue every person, business, or government body that you believe in good faith is, or might be, responsible for your injuries. Once you sue these parties (called "defendants"), they'll often fight among themselves over who's liable for your damages. While it's up to you to prove that each defendant is to blame, in a case with several defendants, sometimes they end up doing much of the work for you.
In some circumstances, you can't (or shouldn't) sue everyone who might have been involved in causing your injuries. Here are a couple of examples.
If someone who injured you files for bankruptcy before you've filed your PI lawsuit, federal bankruptcy law probably prohibits you from suing them without permission from the bankruptcy court. Proceed with caution: You should file a proof of claim in bankruptcy court, but don't sue the bankrupt party without first talking to a lawyer.
Give careful thought to whether it makes sense to sue an uninsured party. Unless they have other assets you can look to for payment, odds are you're just throwing good money after bad.
Your best bet likely will be to focus on other ways to recover your losses. If your injuries were caused by an uninsured driver, for instance, you can look to your uninsured motorist insurance, if you have it.
In most PI lawsuits, you claim that the defendant acted negligently (carelessly) and that this negligence caused you an injury. To compensate you for your losses, you ask the court to award you damages. Let's have a closer look at common PI legal claims and damages.
Here are some of the most common kinds of PI claims.
Car accidents make up a significant portion of all PI lawsuits. If you live in a no-fault insurance state, you might not be allowed to file a lawsuit against the person who's responsible for your injuries, at least not right away.
When a doctor, hospital, or other health care professional provides negligent care that causes you an injury, you can sue for medical malpractice.
Product liability describes cases brought against manufacturers, sellers, and others when a dangerous product causes injury.
Most times, injuries caused by a dog bite or an attack by another dangerous animal are the responsibility of the animal's owner. Occasionally, others who are obligated to control the animal—say, a dog walker or animal trainer—might also be to blame.
In nearly all personal injury lawsuits, you ask the court to award you damages, meaning compensation for your injuries. Your injuries and damages are the biggest factors that drive the value of your case. (Learn about common personal injuries and how they're valued.)
Successful PI lawsuits end in an award of compensatory damages. As the name suggests, these damages compensate you for your injuries and related losses. Compensatory damages come in two varieties:
Special (Economic) Damages
Special damages reimburse you for expenses like medical bills, lost wages and benefits, costs of medical equipment, and other out-of-pocket losses. Special damages are fairly easy to calculate and prove.
General (Noneconomic) Damages
General damages are intended to compensate you for more intangible injuries like pain and suffering, emotional distress, and disability. It's more difficult to put these damages into dollars. In some cases, insurance companies and lawyers use a damages formula to calculate general damages.
Many states have limits, called "caps," on the amount of general damages you can collect. Caps might apply to all types of PI cases, or only to certain kinds of claims, like medical malpractice cases. Damage caps can significantly reduce the value of your PI claim.
There's no such thing as an "average" or "typical" value for a PI case. And nobody can tell you, with much certainty, that your case is worth a specific amount. Your goal should be to estimate a range of values based on the facts of your case and your injuries. If you want more information about the value of your case, contact an experienced PI lawyer.
Every state has deadlines, called "statutes of limitations," for filing PI lawsuits in court. These deadlines differ from one state to the next. States often have different deadlines for different kinds of cases. If you're thinking about filing a PI lawsuit, one of the first things you should do is find out the statute of limitations in your state for the kind of PI case you want to file.
Missing the statute of limitations on your case is likely to be a costly mistake. The statute of limitations is a claim killer. Miss it and you lose your right to sue for your injuries, forever. If you try to file your case after the statute of limitations has expired, the court will have no choice but to dismiss it.
Statutes of limitations are among the most complicated and difficult to understand of all laws. If you're uncertain about how long you have to file your PI lawsuit, get help from a lawyer—quickly.
Deciding where to file your PI lawsuit depends, at a minimum, on these factors:
Most PI cases are filed in the state where the accident or event causing the injuries happened. It makes the most sense to file there. It's likely where the witnesses (eyewitnesses, law enforcement officers, and others) live and where you were treated for your injuries.
Once you decide the state in which to file, you need to figure out where in the state you should file. The rules that will guide you—called venue rules—can be found in your state's court rules, called the "rules of civil procedure." You might be able to find these rules online by looking at the webpage for your state court system.
The venue rules often tell you that you should file in the court that's closest to where the accident or event that caused your injuries happened. Sometimes, though, the rules will direct you elsewhere, like to the court closest to where the defendant lives. Be sure to follow the venue rules and if you're unsure, get advice from a lawyer.
You'll file your PI lawsuit in the state trial court, not a court of appeals or the state supreme court. But you might find that your state has more than one trial court. For example, it's common for states to have one trial court to hear cases where the amount in dispute (that is, the damages you're seeking) is low—say, under $25,000, and a second trial court for cases where the amount in dispute is $25,000 or more.
Chances are you want to file in the court that can decide bigger cases. Once again, if you're not sure which court is the correct one for your PI case, get legal advice.
Your state's rules of civil procedure will fill in the details but generally speaking, this is how you file a lawsuit.
The complaint (in some states it might be called a "petition") is the document that starts your lawsuit. Be sure to check your state's rules of civil procedure to find out what it must (and must not) include. In separate, numbered paragraphs, your complaint should describe:
A summons is a legal form that orders the defendant to appear in court and defend the case. You might be able to find a blank copy of the summons on the trial court's website. Fill it out completely.
Take the summons and complaint to the court clerk's office (ask the clerk how many copies of the originals you should bring) and file the complaint with the clerk. You'll have to pay the filing fee (unless you're asking the court to waive it), which is usually between $100 and $300. The clerk will sign the summons, affix the court seal, and return it—along with one or more copies of the complaint stamped "Filed"—to you.
Once you've filed the complaint, the lawsuit has started. But you still must "serve" the defendant with a copy of the summons and complaint. Serving the defendant means formally delivering these documents as spelled out in the court rules. Make sure that you serve the defendant:
If you don't serve a defendant properly and in time, the court can dismiss that defendant from the case.
As you've probably concluded by this point, filing a PI lawsuit is no simple task. If you're not familiar with the process, you'll quickly find yourself in over your head. The time to learn how to prepare and file a PI case isn't while you're trying to do it for the first time.
Can you file a PI lawsuit on your own? Maybe—if it's a small case with simple facts, minor injuries, and not much in the way of damages. Otherwise, it isn't a good idea. The insurance company will have lawyers on its side. You should, too.
If you're ready to hire a personal injury lawyer, here's how to find the right one for you and your case.