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Claim vs. Lawsuit

You might have a personal injury claim if someone injured you through their own wrongful behavior (in a car accident or a motorcycle accident, for example). That doesn’t necessarily mean you will file a personal injury lawsuit.

Many personal injury claims resolve through private settlement, with no lawsuit necessary. If you have a personal injury claim, it is up to you whether to file a lawsuit.

Table of Contents

What is a Personal Injury Claim?

A personal injury claim is a legal right to receive compensation from another party for an injury you suffered. The opposing party doesn’t have to be the party that injured you. Depending on the circumstances, you can instead pursue a claim against an insurance company.

Although you must normally prove that the party that injured you was at fault, this is not always the case. For example, there is no need to prove fault in a workers’ compensation claim or a product liability claim.

What is a Personal Injury Lawsuit?

A personal injury lawsuit is a formal legal action in which the parties:

  • Assert their respective positions to a court in writing;
  • Gather evidence from each other and from third parties during the court-supervised discovery process;
  • File motions and pleadings with the court, such as a motion to dismiss the case or a motion to suppress certain evidence; and
  • Participate in at least one hearing (the trial).

If you don’t like the result of your lawsuit, you might be able to appeal the verdict.

The Claims Process

The claims process typically begins with a demand letter to an insurance company and ends with either a settlement agreement or a jury verdict. This process varies, however, from case to case. Following is a general overview of the process.

Filing Your Claim

The first step is to send a demand letter to the insurance company (or whoever is liable for your claim). The demand letter should provide basic facts about your accident and your losses. In most cases, it is not a good idea to ask for a specific amount at this point. An insurance company will investigate your claim.

Offer and Counteroffer

The opposing party (the defendant or an insurance company) will either reject your claim or make an offer. If they flatly reject your claim, you might need to discuss with your personal injury lawyer whether to file a lawsuit immediately, even if you still hope to settle the case. If they make an offer, it will almost certainly be insufficient.

Before making a counteroffer, you might need to wait until your doctor tells you that you have reached Maximum Medical Improvement (MMI). MMI means you have recovered as much as you are ever going to. You might need this information to calculate damages for a counteroffer. The offer/counter offer stage continues indefinitely until the opposing party issues a fair offer, or you lose patience and decide to file a lawsuit.

Suing

Filing a lawsuit doesn’t necessarily mean you will end up at trial. It does mean that the court will get involved and that it will eventually schedule a trial unless you settle. There are three main reasons ‌to file a lawsuit, even if you still hope for a settlement:

  • To prove to the opposing party that you mean business. If you have selected a law firm with a strong trial record, filing a lawsuit could strongly encourage the opposing party to raise their offer.
  • To gain access to the court-supervised discovery process, as described below.
  • The personal injury statute of limitations is approaching. In California, you typically have until two years after an accident to file a lawsuit (limited exceptions apply). After that, your claim’s value will drop to zero.

You initiate a lawsuit by filing a formal Complaint, paying the filing fee, and serving the Complaint and a court summons on the opposing party. Since a Complaint is tricky to write, have your lawyer draft it for you. 

The Discovery Process

The discovery process offers three primary tools that allow you to gather evidence ‌you might not otherwise have access to:

  • Depositions, where you can examine and cross-examine witnesses under oath but outside of court;
  • Interrogatories, where you send written questions to the opposing party; and
  • Request for documents, where you demand relevant documents from the opposing party.

If the other party refuses to cooperate, you can seek a court order compelling the opposing party to either cooperate or face sanctions. The opposing party can demand evidence from you as well. In some cases, you can demand evidence from a third party, such as a bank.

Negotiation, Mediation, and Arbitration

Courts are inundated with trials, and they seek to reduce crowded dockets. Consequently, the court will almost certainly pressure you to settle your case before trial. Following are some options:

  • You can continue negotiating, with bargaining power between the parties shifting as fresh evidence surfaces;
  • You can seek a neutral third-party mediator to help you settle (without the power to impose a settlement on you);
  • You can agree with the opposing party to appoint an arbitrator (a private judge) to decide your case; or
  • You can proceed to trial.

Only a small fraction of personal injury claims ever make it to trial.

Litigation

If you cannot resolve your claim, sooner or later, the court will schedule a trial date. At the trial, you can call witnesses, cross-examine the opposing party’s witnesses, present evidence, and argue your case. Although the jury will decide the case if you don’t settle, you can settle your case at any moment before the jury announces a verdict.

When You Need a Lawyer

You might not need a lawyer for a small or simple claim. The larger your claim and the more complex it is, the more likely you need a lawyer. If you are not sure whether you need a lawyer, remember that most personal injury attorneys offer free initial consultations.

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