Should the injured individual always start making demand before file a lawsuit even if the treatments have not been completed before the statute of limitations? Can you explain under what circumstances the lawsuit should be filed without demand in the car accident injuries before the statute of limitations?
This is a personal preference of the attorney. Sometimes I go a year without filing, sometimes I file right away. Many things will determine how your attorney will want to proceed and the strategy should be discussed with your attorney.
Different attorney's have different philosophies on this topic, and certainly each case will vary depending upon a multitude of factors. For instance, certain insurance companies are infamous for making horrible pre-suit offers. So, making a pre-suit demand and then negotiating over the course of several weeks or months is often a significant waste of time and resources. Also, extenuating circumstances like a DUI defendant may be better suited for litigating. At the end of the day, the decision to file suit is like most other decisions regarding a personal injury claim -- do we believe the additional time/money of making that decision, in this case filing suit, will yield a better resolution? If so, then it is worth the investment of that time and money to maximize the value of my client's case.
Generally it is a good idea to make demand and attempt negotiations. Generally, without a pre-suit demand for an auto collision, there won't be the ability to set up any potential bad-faith claim.
You may file suit without demand if you are right up against a statute of limitations, or if there are very low damages and low likelihood the awarded damages will exceed the insurance coverage.
There may be a variety of reasons to file an early lawsuit. Number one being that the defendant is going to move our of state or flee internationally or otherwise hard to serve with summons and civil process. Additionally, you may have to file suit early to learn of other parties who may be vicariously liable or who have additional insurance coverage that is applicable. Generally, it is best to have completed medical treatment and release as having reached "maximum medical improvement" before you make a demand or settle a case. If you have a claim you are always better off being represented by an attorney who is trained and experienced in handling auto BI cases. Use Avvo's find a lawyer feature.
Answers to questions are for general purposes only and do not establish an attorney-client relationship.
A demand is not required. Its just a way of trying to get the case settled. Sometimes there are reasons to wait until treatment is farther along, but it doesn't have to be finished because it is possible usually to estimate the costs of future treatment. I think its best to have an attorney familiar with the medical records and the case make the strategy decisions.
If the statute is about to lapse you can start an action without a demnad letter but thee is no reason to wait until the last minute for either the demand letter or to file suit. Get counsel involved without delay.
File suit to preserve the statute. You can file suit on day one if you choose. But generally one waits until they have reached MMI (max medical improvement). Don't let the statute run on you or you'll have nothing. Good luck.
It would depend on the length of time before the statute runs as to whether or not a negotiation would be fruitful prior to perfecting the issue being joined in a timely manner.
I always try to discuss the possibility of a resolution before filing a suit. I think that is part of our job when it is possible.
Sign up to receive a 3-part series of useful information and advice about personal injury law.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline