About 95% of personal injury cases settle out of court, but there are no guarantees. You still have to prepare under the assumption a trial will take place. Understanding the steps to take in order to reach a settlement will help you start the process off right.
Your first order of business is finding an attorney. Many personal injury attorneys offer free initial consultations where you can discuss your case.
Based on the consultation, the attorney may or may not take your case. If they accept, you'll likely discuss fees next. Most personal injury attorneys work on a contingent fee basis, also known as a "no win, no fee" basis.
This means you only have to pay your attorney if you win a judgment. For example, you might agree to pay your attorney one-third of any amount recovered.
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The statute of limitations defines how much time you have to file a lawsuit after your injury occurs. Once the statute of limitations is up, you're no longer able to sue.
The specific limitations on personal injury cases depend on the state. For example, Kentucky only allows claims for 1 year after the incident, while Maine allows them up to 6 years later.
The document that gets the ball rolling is called a complaint (or petition). The complaint includes the following information:
The cost of filing the lawsuit will vary by state and court. For example, filing a civil suit in Illinois circuit court costs $337, while filing in Iowa district court costs $185. If you can't afford these fees, you can usually apply to have them waived.
You and your attorney then usually have about a month after filing to serve the complaint and a summons on the defendant. (The summons simply says where the lawsuit will be litigated.) Serving these papers on the defendant involves physically delivering them in a way that can be proven.
Once the defendant is served, they have 30 days to answer the complaint. If they fail to answer it, the court will award a default judgment in your favor.
Discovery is a key stage of the personal injury case process. During discovery, both sides will produce evidence and witness information. Both sides will take depositions of witnesses as well, meaning they'll question witnesses under oath outside the courtroom.
Each side will also have to exchange documents they intend to use as evidence, such as medical records. The discovery process usually takes months, but in complicated trials, it may take years. Extensive discovery may cause the court to postpone the trial date.
Attorneys on both sides can also file several motions before trial that may resolve the case:
Motion to dismiss. Attorneys usually file motions to dismiss before discovery. A motion to dismiss may be based on the court's lack of jurisdiction, improper service of process, or the plaintiff's failure to state a claim on which relief can be granted.
Motion for summary judgment. This is appropriate when there are no facts in dispute and the moving party is entitled to judgment as a matter of law. These motions often come after discovery if one or both parties realize a trial is not necessary.
Motion for default judgment. If, for example, the defendant fails to answer the complaint after being served, the plaintiff can move for a default judgment against them. This effectively resolves the case in the plaintiff's favor.
More often than not, a personal injury case will settle before trial. A settlement is an agreement where the plaintiff drops the lawsuit in exchange for some kind of compensation.
Once the settlement is finalized, it becomes a contract between the parties. Typically, the parties will present the settlement to a judge to ensure it will be enforced as a legally binding agreement.
If the case results in a trial, a judge or jury will decide if the defendant is liable for the plaintiff's injuries. The judge or jury will assess the evidence by a preponderance of the evidence standard, which means it must be more likely than not that the plaintiff's claims are true.
Trials can take weeks, and juries can deliberate for hours, days, or weeks after that. This can be prohibitively expensive if you're paying your attorney by the hour, but the contingent fee spares you that expense.
If the judgment isn't in your favor and your attorney believes an error of law was made, you can appeal the decision up to 30 days after the judgment was entered. Appeals require a higher court to review your personal injury case to determine if an error occurred. The court will then either uphold or overturn the decision.
The personal injury case process often takes a while to complete. An attorney can help you navigate through it and present the strongest case possible.