So you’ve been in an accident. At this point, you’re probably scared, you’re confused, you’re nervous, you’re focused on your medical treatment, and you have probably a lot of questions about the legal system. In this segment we’re gonna look at the steps involved in a personal injury case, and we’ll take it from beginning to end so you can understand the process.
The first question you have is, “Should I get a lawyer?” Now, we have another video that discusses this in more detail, but the most important point is, although you may save some money on the back-end by not paying a lawyer money, you could lose more money by falling into one of the many landmines that exists in a personal injury case. But check out that video to learn more about that question.
This video will assume you hired a lawyer and it will take you through every step of the process. Big picture overview. There are basically three parts of a personal injury claim. The first step is the preservation and investigation portion of the claim. The second part is the claims portion. This is where you actually submit your claim to an insurance company. And the third part, after case resolution, is dealing with liens.
So let’s take those up one at a time. First, the investigation and preservation component of a case. After an accident, there is a lot that has to happen very quickly. Oftentimes, we’re not contacted, and personal injury lawyers aren’t contacted until well after an accident takes place. People think “Oh, I’ll deal with that later. I’m okay. I’ll just go ahead and focus on seeing the doctor, or feeling better, or getting back to work, and I’ll deal with that later.” But there’s a problem if you do that. And the problem is that every day that passes after an accident is a day that evidence can disappear, evidence that can be critical to proving your case.
A few examples. After an accident, when vehicles are involved in them, typically, you see skid marks on the roadway. You have gauge marks on the roadway as well. You have witnesses who saw it. All of those pieces of evidence can slowly start to fade away. The skid marks can get washed away as storms and rain come through and traffic goes over them. The gauge marks can go away. They can be covered up by the city, not realizing there was an accident there. You have witnesses whose memories naturally will start to fade with time.
Timing is critical. You have to gather all of this information very quickly. So the very first part of the claim is simply, through your lawyers, getting all of this together in one place. Once it’s gathered, the lawyer will talk to you about the next steps and what the information has shown. At the same time, on a parallel track, you have the preservation component of the claim. What that means is, there are certain legal documents that can be sent to opposing parties or third parties telling them to lock down the evidence.
So, as an example, if another car hit you and the other driver’s at fault, you can send, through your lawyer, a letter to the insurance company, to that driver, to that driver’s lawyer, saying, one, “Don’t repair your vehicle until we have an opportunity to examine it and inspect it.” Really important. The physical evidence can prove who’s at fault.
Now, at this point, I often have heard clients say, “Well, you know, we don’t need to do that. The person who hit me admitted fault. He said ‘I’m completely responsible.’ So that’s not going to be an issue.” Well, let me tell you, stories can change with time, and they often do. So, even though that driver may have said that on the scene, you’d be surprised that days, weeks, months later, once they realize the potential liability and after they speak with their insurance company, or after they speak with lawyers, that can all go away.
So, what you want to do is make sure you have the physical evidence locked down. These letters that you send say, essentially, “Don’t touch it, or there will be legal consequences for it.” The fancy legal term is spoliation of evidence, and you want to make sure you get these letters out quickly. The letters can also go to other players involved. As an example, are there video cameras around? If there are, you can send a letter to if it’s a third party, if it’s a company that has this video, or if it’s the government, saying, “Please preserve this video. It may contain critical evidence.”
The problem with waiting is that, over time, most video cameras are on a hard drive these days and they overwrite. After a certain amount of time, which could be a few days, or a few weeks, those hard drives will simply overwrite and go on, and that information can be gone forever. So it’s critical that you send those letters out through your lawyer right away. This is the preservation component, and this really encompasses, with the investigation, the first part of the claim.
Okay, so now you have the information gathered, it’s in one place and you want to know what the next steps are. At this point, typically, you’re going to have the lawyer sit down with the client and explain everything that’s been found, what have the witnesses said, what did the police conclude, what does the physical evidence show? You’ll go over these in a discussion. And there’s one other critical piece of information that your lawyer will give you that’s essential to your evaluation of the next steps. How much insurance exists?
So, you can have a very large, significant claim, but unless there’s insurance, either through the other party or through your own insurance, you could walk away with nothing. So it’s an important part of the claim, identifying every insurance policy that exists. So, for the other driver, that would be the driver’s primary insurance policy. Most states require, by law, that drivers carry insurance. Problem is, many drivers don’t carry insurance. And so, you need to determine: is there a policy, how much is that policy, do you have any umbrella policies, additional policies that might apply?
Also, how about from a business? Oftentimes, business policies will apply if the driver was on the clock for work. We call that in the course and scope of employment. Is there a business policy that’s in play? If so, that’s critical, because those policies are typically written in amounts of one million dollars. Not always. There can be smaller policies. But business policies, on average, are larger than individual policies. You examine that. Throughout this entire process, and this goes without saying, we need to make sure, and you with your lawyer, that you’re treated appropriately for all of your conditions.
Your lawyer will also look at those medical bills, the medical records with you, and also try to determine what the future holds for you. In most states, you’re entitled to recover for the damages you incurred. So that includes your medical bills, that includes your pain and suffering, not only in the past but in the future as well. And so, you need to make sure you have an understanding of what the future holds for you.
As an example, if you broke a leg, maybe that’s not the end of it. Maybe it just wasn’t the casting. Or if you had a surgery, that may not be it. And in the future, you may be dealing with other issues. If there’s hardware, you may have to have that removed. Maybe that hardware or the nature of the injury will cause arthritis or other orthopedic issues down the road. You have to make sure that you speak with your doctor to understand what those future injuries might be.
At this point, your lawyer may elect with you to hire what’s called a life care planner. A life care planner is simply a medical professional in the business of predicting your future medical expenses and needs. It’s essential that you go through this process and understand what the future holds for you. It’s a big part of a claim that’s often overlooked. People say, “Hey, I missed work. I have my medical bills. I have my pain and suffering, and that’s it.” Well, depending on the jurisdiction, there may be more. So that’s an important area to look at.
You have this information. The lawyer will say, “Here are your damages, what you’ve lost, and here’s an assessment of liability.” These are the two critical parts of a claim – liability and damages. Liability is simply who’s at fault for the accident. Was it the other driver’s fault? Was it your fault? Was it a combination of the two? Many states these days have adopted what’s called comparative fault. This simply means that the law recognizes the truth and the reality of the situation that there can be more than one party at fault. I’ll give you an example.
If you have someone who’s making a left-hand turn and they make that turn inappropriately when the other driver has the right of way, there clearly, or arguably at least, is fault to go to that party for cutting someone off. Now, on the other hand, if that driver going the other way is speeding, you can have some fault that goes to that driver. This is called the allocation of fault. And juries are asked to do this all the time: determine, out of 100%, how much fault goes to the plaintiff, how much fault goes to the defendant, and how much fault goes to any third party, if there was another player involved, another car, another driver, another contributing factor to the accident.
Many states are pure comparative fault, meaning if you’re a plaintiff and even if you’re only 1% at fault, you can bring the claim. Other states follow the contributory negligence rule that says, “If you as the plaintiff, for more than 50% at fault, you’re barred from bringing your claim.” You need, with your lawyer, have a very candid assessment of this fault. It’s easy to say, “It wasn’t my fault.” And often, that may be the case, but you need to make sure, at this point, at this critical juncture, that you’re being honest and your lawyer is being honest with you. Because if there is fault that might go your way, you need to understand what that means for you. That’s liability. You have the liability, who’s at fault, and you have the damages, your medical bills, pain and suffering, lost wages, future medical expenses, and more.
Put this together with the insurance, and you have a choice. One, do nothing. Two, file a lawsuit. Or three, the option most people pick, assert a claim. To be clear, a claim is not a lawsuit. A claim is simply a document you send to the insurance company that explains the liability and the damages and why they should pay you. Your lawyer will put this together in a product called a demand letter. A demand letter is simply the legal mechanism for opening a claim with an insurance company.
Now, there are lots of different ways to put a demand letter together. The traditional way is you have a document that’s a few pages that says, “Here’s why you’re responsible. Here are my damages. Pay us X,” and you ask for an amount of money, typically, in these demand letters. But more often, now you’re seeing alternative ways to presenting them. Photographs are included. In our practice, we put these demands sometimes on video to bring them to life.
You have to remember, in order to properly present your claim, you need to connect with the reader. In most cases, that’s going to be an insurance adjuster. Sometimes, that’s going to be a lawyer. But they need to understand who you are, what happened to you, and what the future holds for you. And it has to be credible. Your lawyer would advise you not to stretch the truth, not to overstate, not to exaggerate, because if you do that, that will hurt your credibility. You need to present the claim accurately while still, at least from the lawyer’s perspective, being an advocate for the client, making sure that you’re bringing to light all of the facts that really impact the value of the claim.
That letter, or that package, is sent to the adjuster. The insurance adjuster will review it, typically come back and ask for information, say, “Well, I’d like more information about your job. I’d like more information about your medical bills or records.” And typically, but not always, will say, “Give me more time.” Now, there’s no one way to do it, but 30 days is typically the amount of time you would put on a claim to say, “Would you please respond within 30 days of this?”
Now, at that point, 9 times out of 10, the adjuster will come back and say, “We want another 30 days,” or “We want another 60 days,” and those are often granted. That professional courtesy is extended. So if your lawyer says, “Hey, the insurance company is asking for an extension. We recommend granting it,” probably should listen to your lawyer, because you want to make sure that you’re not biting the hand that ultimately feeds you. You need to be cooperative, to a point. Now, it may come where you can’t play nice anymore. But out of the gates, always a good idea to build a strong relationship there.
After the insurance company evaluates the claim, they’re going to give you one of three responses. “Yes, we will pay you exactly what you asked.” Rarely happens. “No, we deny your claim entirely. Go pound sand.” Sometimes happens. Or what happens most frequently, “We think you have a claim, but we don’t think it’s as valuable as you do, so we’re going to give you an offer that’s less than what you want.” This is what you typically see, and I want to focus on that. You get the offer back. Don’t be insulted out of the gates, because it’s probably gonna be a low offer. Insurance companies follow a formulaic response to this, and typically, it’s first to give a very low amount in their initial opening offer. What typically happens then is you in consultation with your lawyer will discuss it and possibly come back with a counter offer. That process can ping pong back and forth three, four, or sometimes five times. Offer, counter offer, offer, counter offer, until the case is resolved.
If it doesn’t look like that claims process will resolve it, oftentimes, lawyers will talk about going to mediation. Mediation is a form of alternative dispute resolution, ADR. And this is popular in the law these days. This simply means you don’t have to go to court every time to resolve a claim. That’s expensive, it’s costly, from a time perspective, the courts are backed up. So let’s do it a different way. Mediation can be a very good way to resolve a case.
And simply put, what happens is you go and you do a negotiation with the insurance company with the help of a facilitator. No one is forced to make any decisions, no one has to accept any offers. A mediator simply comes in and facilitates discussion. Oftentimes, the parties don’t even sit in the same room. You’re gonna have the plaintiff in one room, the defendant in another, the insurance company will sit with the defendant, and the mediator will shuttle back and forth, trying to bring the parties to resolution.
A third way that the claim can get resolved is through what’s called arbitration. Oftentimes, people not familiar with the law don’t understand the difference between mediation and arbitration. Here’s the difference. Mediation means there’s a facilitator. Arbitration means there’s a decision maker. In an arbitration, the parties would agree, and in some cases, depending on state law, the courts will require that you go to a third party who will hear the evidence and make a decision on the claim.
Typically, these arbitrations are binding and there are very limited circumstances where you can appeal them. The benefit, of course, is it’s faster, it’s cheaper, and you have resolution right away. The downside is, if you don’t like it, you’re really stuck with the outcome. Arbitration is the third way. So, you can have independent negotiation, mediation, or arbitration. Those are the ways claims are resolved pre-litigation.
Now, if none of those work, what’s the next step? At this point, you’re at a critical crosswords. You have to determine are you going to walk away or are you going to file a lawsuit, and begin the claims process in court? This is an important point and you need to reflect on it. Many people will say “Of course you’re going to file a lawsuit.” And oftentimes, that’s the right answer.
But you at least need to understand going into it that if you do that, you’re going to be spending a good deal of time, perhaps many years, living with this case. Your lawyer’s going to spend money advancing the case, between court filing fees and hiring expert witnesses that need to be paid money to advance the claim, there is a real cost, an economic cost, a time cost, and an emotional cost with litigation. You need to go in with your eyes wide open there. But sometimes, there is no choice.
Lawsuit is filed and the case begins. The first thing that happens when you go into the litigation process is you have a complaint. That’s the document that initiates a lawsuit. The defendant then will, through the insurance company, typically have a lawyer appointed. Insurance companies have a duty to do this. They have a duty to defend, hire a lawyer, and a duty to indemnify, pay for any loss you have, up to your policy limits.
That lawyer will file an answer, typically, and that is where they say, “We admit the allegations,” or “We deny them.” By the way, they’re often denied. Don’t be surprised. Or they can come back and file a motion with the court. Often, it’s called a motion to dismiss, saying, “Judge, get rid of this case right away. It’s defective on its face.” Once these documents are exchanged, the clock starts running and you have a number of steps that happen. You have documents that are exchanged. You have what are called disclosure statements where you provide information to the other side. They provide information to you. You have an opportunity to take depositions. That’s where the other lawyer asks you questions under oath, and you get to ask the defendant and any of the defendant’s witnesses questions under oath through your lawyer. This process can take a year, it can take longer at times. There’s a lot that happens. You have documents that are exchanged, medical records that are exchanged, and you have this form of questioning through depositions and what we call interrogatories, which is just a fancy way of saying written questions that you send to the other side.
Once this whole discovery process takes place, you eventually get to the point where you’re nearing trial. This now, from a time perspective, again, is going to be between eight months, maybe to a year and a half, sometimes longer, depending on the schedules of the lawyers. At that point, a trial is nearing, and you have pre-trial conferences with the judge. This is the next point where you see cases most often settle, if they’re going to settle. The lawyers have the information they need, the parties have a better understanding of the case, and people feel better equipped to come to the table and try and resolve it, and try to limit any potential loses they may have.
Oftentimes, you hear mediators say, “A good settlement is one where nobody is happy.” While I don’t subscribe to that completely, there may be a kernel of truth in it. There may be situations where there’s gonna be give and take involved in it. But my advice and encouragement to everyone out there is to be creative. It’s typically about dollars and cents, but it’s not always about dollars and cents. We’ve seen many cases where you’ve had creative ways of settling claims, where the insurance company agrees to implement new strategies, the defendant agrees to put up memorials, or to train employees. And I would encourage everyone out there to try and think outside the box and explore different ways of settling a claim. Money is the driver and our civil system is premised on compensation through money. There’s not another way, and I think it’s a great system. But it’s not a perfect way. But there are ways to improve that.
So let’s assume this doesn’t work. You’re not able to get the case resolved. It doesn’t settle, and now you’re facing a trial. First off, you need to understand that depending on the study, depending on the stats, in excess of 95% of cases do not go to trial. They settle before it gets to that phase. Now, if you watch TV, you’re gonna think every case goes to trial. That’s what people love to see: the courtroom drama, the questioning, but that’s not reality. It’s the rare case that goes to trial.
But if you do go to trial, what can you expect? Well, you can expect that your lawyer will have an opportunity to make an opening statement in that trial. The defendant will make an opening statement. And you’ll go through and you’ll call witnesses and do what you see on TV. They ask questions. Although, typically, you’re not gonna have those impactful moments where someone cracks. That doesn’t happen very often. But the evidence does come out, and often, that goes before a jury. The jury is evaluating the credibility of the witnesses, evaluating the evidence, and they’re sizing you up as a plaintiff. So it’s important that you be yourself, you be authentic, and you be truthful.
Juries are smart and they can sense if you’re not being truthful and authentic. And even if you have some fault and if you’ve done something wrong, the best thing to do is acknowledge that and admit that. It speaks to your character and it shows you’re not stretching. And your lawyer will, of course, advise you every step of the way. And I think most good lawyers will advise you to do just that. Lawyers then will give their closing arguments and the trial will conclude. The jury goes back and will either say “You win,” or “The defendant wins.”
And if you win, they’re going to give an allocation of fault, how much fault goes to you, how much to the defendant, how much to any third parties, and they’re gonna give a number. Every jurisdiction is different. But in most jurisdictions, your number is reduced by the amount of fault that’s attributable to you. Easy example. Jury awards you $100 but says you’re 25% at fault for the accident. What happens practically is that you get $75 for that. Your total award is reduced by the amount of fault attributable to you. Every jurisdiction is different, though, so consult with your lawyer to understand it.
If you lose, there are options to appeal. But appeal takes more time, it can be costly, and you also need to understand that if you lose the case, again, depending on the jurisdiction, you can be responsible for the other side’s cost, taxable cost. So you may have to pay for some of the other side’s cost that they incurred in pursuing that claim. So there’s always a risk in trial, so you need to understand that going into it.
Whole process, beginning to end, if you go from bringing a claim to trial, can be anywhere between a year and a half to three years, depending on the jurisdiction. It’s a long one. But understand most cases don’t go there. But that’s what the future could hold for you. And of course, when you go to a jury, you’re rolling the dice. You can have a big verdict or you can have a small verdict. But you will have an opportunity to express your case to the people on the jury.
So, that’s a lot to digest, but that’s typically the process. You’re gonna have a lot more questions about it for sure, but that is at least the thumbnail introduction to bringing a personal injury claim. A lot more information on our website. Check it out at staginglamber.wpengine.com/tucson. Subscribe to our YouTube channel. If you like this, give it a thumbs up. I look forward to talking to you soon.
Personal Injury Roadmap