Until a lawsuit actually begins, your lawyer can keep a lid on the claims process. For example, the insurance company has no right to interview you directly unless an actual lawsuit is underway. And the insurance company cannot speak to your doctors. Nor can it force your lawyer to do any more work, or run up more in expenses, than the lawyer decides is necessary to investigate and prepare your claim. Once a formal lawsuit begins, however, your lawyer may have to do considerably more work, responding to procedures initiated by the insurance company’s lawyers. This can run up both stress and expenses that you and your lawyer cannot completely control.
A lawsuit technically begins when a complaint -- a legal document setting out the facts and legal basis for your claim against the defendant -- is filed in court. This complaint must be filed within the time limit set by your state’s statute of limitations. But the real action of a lawsuit does not begin until the defendant and his or her lawyer are formally brought into the case when your complaint is served on—formally delivered to—the defendant.
The decision of when to serve the defendant, and therefore when to start the expensive and stressful activity of a lawsuit, depends on whether settlement negotiations are making any progress. If they are not, your lawyer may feel that proceeding with a formal lawsuit is the only way to pressure the insurance company enough to get a reasonable settlement offer. A decision about beginning the lawsuit process should be made jointly by you and your lawyer after a thorough conversation about the pros and cons.
The legal process used to get information from the other side in a lawsuit is called discovery. Discovery can involve the relatively simple exchange of written questions and answers called interrogatories, as well as other exchanges of documents. But it can also include expensive procedures called depositions—in which lawyers from both sides get together and question you, the defendant, or a witness in person, under oath, while a court reporter records the answers (and then later prepares a written transcript).
Although depositions are a basic part of most lawsuits, the number of depositions scheduled in a case can vary considerably.
In a case involving huge amounts of money, lawyers take the deposition not just of the plaintiff and defendant but of every conceivable witness, hoping to turn up even a single crumb of information. However, this is not the way to run a lawsuit in which smaller amounts of money are involved. Your lawyer needs to bear in mind the expense to you of taking depositions. Ask that your lawyer not schedule the deposition of anyone other than the defendant unless the lawyer discusses it with you first and gets your approval. The same thing may be true for requests for records and reports, although the amounts of money involved are not as great as for depositions.
Even though you may have already provided the lawyer with your medical and billing records, lawyers sometimes order them again out of habit. But the doctor’s office will charge for these records, and may charge a larger fee to a lawyer than to the patient—and the lawyer, in turn, will pass this cost on to you. Also, lawyers sometimes want to get a doctor to write a report concerning your injuries. Such reports are sometimes important for your case, but they cost hundreds of dollars. Ask your lawyer -- tactfully -- not to order any duplicate medical records, or request a medical report, without at least discussing it with you first.
Setting a lawsuit for trial means asking the court to assign a date for the actual trial to begin. Often lawyers are forced to set cases for trial in order to put enough pressure on an insurance company to get a reasonable settlement offer.
Getting a trial date from the court is a simple matter—your lawyer just sends the court a written request. It’s what happens next that you have to be concerned about. In the first place, many contingency fee agreements provide that the lawyer’s fee goes up—often from 33.3% to 40%—as soon as the case is set for trial, regardless of whether the trial ever actually takes place. If your fee agreement has such a provision, you do not want your lawyer to set the case for trial unless it is truly necessary. This means that the insurance company has not come up with a reasonable settlement offer and there are no more legal maneuvers, short of setting for trial, available to pressure the insurance company. Also, once the case is set for trial, the pace of legal maneuvering and preparations may speed up dramatically. The lawyers may schedule depositions and other expensive proceedings they had been putting off. And your lawyer may have to spend more of your money hiring outside experts to begin preparing for trial.
If you decide that what the insurance company is offering is just not enough, even after you have tried negotiating and your lawyer has done everything possible to persuade the insurance company of your damages and the other party’s liability, you may end up in a trial. Then you will have to rely on your lawyer almost completely.
This article was adapted from the book, How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).