If you’ve suffered an injury that required expensive medical attention and believed someone else was at fault for the injury, you may be considering filing a lawsuit. Before making a final decision regarding legal action, you need to understand the process of filing a personal injury lawsuit.
Understanding Personal Injuries
Personal injury proceedings involve a civil suit by which an individual seeks compensation because another person caused them harm or injury to their body or mind.
Several types of injuries qualify as personal injuries under the law, but not all qualify for legal liability or compensation. The laws that determine fault for a personal injury vary by state, but in general, a person found liable for harm or injury must be found legally negligent. Negligence includes acting carelessly or thoughtlessly or failing to behave as a reasonable person should under the circumstances.
Such negligent behavior can include:
- Car Accidents– The law regarding fault and liability in a car accident varies from state to state. In many situations, it comes down to whether the driver who caused the accident exercised reasonable caution given the conditions.
- Slip and Fall– Property owners have the legal obligation to keep their premises reasonably free of hazards for the safety of others. The legal duties of a property owner do, however, depend on the situation and the state’s specific laws.
- Medical Malpractice– If a health professional’s inadequate or negligent care leads to a patient injury, the patient can file a medical malpractice lawsuit.
- Libel and Slander– Libel and slander refer to the defamation of a person’s reputation due to untrue statements made verbally or in writing. If these statements damage a person’s character or cause them pain and suffering, they may qualify as personal injuries.
- Dog-related Injury– The exact laws of owner responsibility vary from state to state, but in most cases, dog owners are financially responsible for injuries caused by their dog on or off their own property.
The Filing Process and Court Procedures
1. Legal Representation– Should you be involved in what appears to be a valid personal injury case, you will want to contact a lawyer as soon as possible. Whether you want representation for all areas of your claim or need help preparing a small claims case or arbitration, contacting a law professional can help you navigate the complex process and procedures.
Once you have a lawyer, they will interview you about the incident and gauge your case’s validity. They’ll also review any relevant medical records and bills. Then, your lawyer may attempt to negotiate a settlement with the other side’s attorney before ever filing a lawsuit. Many personal injury proceedings end at this point with an agreed-upon settlement.
In many situations, the attorney representing an injured individual will wait until their client’s maximum medical improvement (MMI) to demand a settlement or file a case. That way, they have all the medical and financial information needed to win their client the most compensation possible.
2. Complaint Filing– If you and your attorney do decide to pursue a personal injury lawsuit, you will have to file with the court, which begins litigation officially.
The defendant will be “served” official documentation regarding the lawsuit, which will also include pertinent information such as when and where they need to appear in court.
3. The Discovery Process–This pre-trial process involves both parties gathering evidence and witness information and appearing in court to decide upon mediation, arbitration, and to set a trial date. The discovery process can take months, even years; both sides have to schedule depositions, gather evidence, and meet for mandatory settlement conferences. If mediation fails, the case will move to the trial phase.
4. Trial– The trial will begin and may last several days. Based on evidence and testimony, the judge or jury will determine if the defendant is at fault and decide on any associated payout for damages.
5. Appeals– After trial, either the defendant or the plaintiff may begin the appeals process. Once all appeals have been exhausted, a losing defendant will be required to pay the damages decided by trial or on appeal.
What to Consider Before Filing
Choosing to file your personal injury lawsuit is not only a personal consideration but a legal one as well. It is imperative to take the time to evaluate your situation before you file, and to consider all of the following:
- Is there enough evidence to prove the other person’s fault or negligence? What proof, witnesses, photos, or other evidence do you have?
Direct and circumstantial evidence prove negligence within a case. Personal knowledge, photos, and videos are considered direct evidence, while inferences based on produced evidence are recognized as circumstantial. As previously mentioned, you must prove negligence, meaning the accident would not have occurred had the defendant acted with reasonable care and caution.
- Did your actions contribute to the injury in any way? Does your state have comparative or contributory fault laws?
Sometimes, not just one person is responsible for an injury, and your state’s laws will determine how the court assigns fault. The specifics vary from state to state, but in general, states have either contributory negligence or comparative negligence laws. Under contributory negligence, an injured person cannot recover compensation if they contributed at all to the incident that causes their injury. On the other hand, comparative negligence laws allow the injured person to recover compensation if they are found partially at fault, but only up to a certain percent.
- Is it worth it to you financially? What about your time and the possible emotional impact?
Even if your lawyer agrees you have a viable case for court, lawsuits do not have guaranteed outcomes. Chances are you and your lawyer have a fee agreement, but are you able to cover those costs should you not win the case? Are you prepared to spend the time and energy gathering evidence, meeting with official parties, and awaiting the possible exhaustion of appeals? A personal injury lawsuit can average several months, if not years before it is settled.
- Are you within the statute of limitations?
If you wait too long to file your lawsuit, you may find it’s too late. The statute of limitations varies by state, so it’s important to investigate how your case fits into the legal system where you live.
- Can you find a trustworthy lawyer?
Finding the right lawyer can be challenging in personal injury lawsuits. You want a lawyer with the experience and the know-how of working with claimants. The best way to proceed is to do a little investigative work on your own and compare a few lawyers first. Meet with each of them to discuss your case before making any decisions. For instance, if you live in Oregon, injury attorneys from Oregon will be better versed in the time constraints and necessary requirements of your claim than an insurance lawyer with decades of experience with insurance cases.
Harm or injury can have an overwhelming effect on anyone. Choosing to begin a personal injury lawsuit is not a decision to be made lightly. Take the time to evaluate your situation with the needs and expectations of the law in your state before you decide.