At the heart of any legitimate personal injury case is, of course, an injury of some kind. However uncertain the defendant's liability or the extent of the plaintiff's losses might be, no case will make it far without some proof of the plaintiff's injury.
If the plaintiff's losses (called "damages") appear to be more than the local small claims court dollar limits (typically around $5,000 to $10,000), most plaintiffs will talk with an attorney. If, after the initial consultation, it appears that the plaintiff might have a case, the attorney may agree to investigate.
Part of the attorney's investigation will likely focus on whether the defendant has insurance or sufficient assets to cover any settlement or judgment. If the consultation and investigation lead the attorney to conclude that the case is viable, the plaintiff and attorney will sign a fee agreement and the attorney-client relationship will be official.
Personal injury lawyers usually work on a "contingency fee" basis, meaning their fee is dependent on a favorable outcome for the client.
Learn more about how a lawyer decides whether to take a personal injury case.
After establishing that a legitimate case exists, the plaintiff's attorney will file a personal injury complaint in the proper civil court. The complaint is the first official document in the case, laying out in very broad detail what the plaintiff claims the defendant did to cause the plaintiff harm.
After the complaint is filed, the plaintiff's attorney will have a month or more to "serve" the complaint on the defendant. Serving the complaint basically means physically delivering the complaint to the defendant in a way that can be verified, ensuring the defendant cannot later claim to not know about the lawsuit. Along with the complaint, the service papers will tell the defendant when to appear in court.
The defendant will typically have a month or more to find an attorney before the first court date. If the defendant has assets or an applicable insurance policy, finding a personal injury defense attorney willing to take on the case shouldn't be difficult.
If the defendant has an insurance policy that potentially covers the alleged harm, the defendant must notify the insurance company. The insurance company will then appoint and pay for a lawyer if the defendant has not already hired one. Defense attorneys work at an hourly rate, not under a contingency fee agreement, so defense attorneys get paid whether they win or lose a case.
In the pre-trial process, both sides will ask each other for evidence and witness information in a phase called "discovery." In the early stages of the case, both sides will also appear in court to inform the judge of how the case is proceeding, to agree (or not agree) to mediation or arbitration, and to set a trial date. As discovery proceeds, both sides will begin to schedule depositions (question-and-answer sessions under oath) of the opposing party and witnesses.
This process of discovery and periodic court appearances can take months (even a year or more), with the trial date frequently getting pushed back. Eventually, once discovery has concluded, the defendant may ask the judge to throw out the case on "summary judgment," arguing that the plaintiff cannot possibly win at trial (judges deny these motions more often than not).
As the case moves closer to trial, the parties will significantly ramp up their efforts as they engage in mandatory settlement conferences and make motions to determine what evidence will be allowed at trial (called "motions in limine").
Finally, the trial will begin and, for a typical personal injury case, last at least several days. At trial, the judge or jury will determine if the defendant is at fault for the accident and for the plaintiff's losses, and if so, how much the defendant is required to pay out in damages. After the trial, either party can file an appeal. The appeals process can last from several months to several years. After the appeals process has been exhausted, a losing defendant will be required to pay the damages ordered at trial or on appeal.
Most personal injury cases settle before trial. At any point in the process described above, the parties can settle and end the case, even before the complaint is filed. Learn more about the personal injury settlement negotiation process and get tips on getting the best settlement.
If you're thinking about taking a personal injury case to court, it might be time to discuss your situation (and plot out your best course of action) with an attorney. Get tips on how to find the right personal injury lawyer.