When You and Your Lawyer File a Personal Injury Lawsuit

Part two of working with a personal injury lawyer: deciding if and when to file a lawsuit in court.

Updated By , J.D.

Continued from Page 1 - Working With Your Personal Injury Lawyer

Deciding When to Get the Court Involved in Your Injury Case

Until a civil lawsuit actually begins, your lawyer can keep a lid on the insurance claim 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. But once a formal lawsuit begins, your lawyer may have to do considerably more work, including responding to steps initiated by the insurance company's lawyers. This can run up both stress and expenses that you and your lawyer cannot completely control.

A personal injury lawsuit technically begins when a "complaint" is filed in the local branch of your state's civil court. The complaint is a legal document setting out the facts and legal basis for your claim against the defendant. 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 often stressful course 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 to step up with a reasonable settlement offer. A decision about taking your case to court should be made jointly by you and your lawyer after a thorough conversation about the pros and cons of filing a personal injury lawsuit.

Conducting Discovery in a Personal Injury Lawsuit

The legal process that each side of a lawsuit (plaintiff and defendant) use to get information from each other 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 the plaintiff, the defendant, or a witness. The questioning is done 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 useful information. However, this tactic is rarely used when smaller amounts of money are at stake. Your lawyer needs to bear in mind the expense of taking depositions. You might want to ask that your lawyer not schedule the deposition of anyone other than the defendant without discussing it with you first.

Even though you may have already provided the lawyer with your medical and billing records, lawyers sometimes order them again out of habit, or to ensure that the file is complete. 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 may cost a thousand dollars or more. Ask your lawyer (tactfully, of course) not to order any duplicate medical records, or request a medical report, without at least discussing it with you first.

Setting a Personal Injury Case for Trial

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's 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.

The Trial in a Personal Injury Case

If you decide that what the insurance company is offering is just not enough, even after your lawyer has done everything possible to persuade the insurer of your damages and the other party's liability, you may end up in a trial. At this point, you will rely on your lawyer almost completely, which is why it's so important to find the right legal professional for you and your case.

This article was adapted from the book, How to Win Your Personal Injury Claim by Attorney Joseph Matthews (Nolo).

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