If you’re either contemplating whether or not to file a lawsuit or wondering what to do if you want to file a lawsuit, you’ve come to the right place. This guide to filing a personal injury lawsuit will provide the information you need to know (including what the insurance companies DO NOT want you to know!).
In the U.S., personal injury is a legal term that is used to describe when someone has been harmed either mentally or physically as the result of negligence on the part of another person, party or entity. Negligence is the careless action (or inaction) that results in harm to someone. The legal principle of negligence is the basis for all personal injury claims. In order to win a case, the party bringing about the claim must prove four different elements:
- Duty: The person or company you are suing owed a legal duty to the person who was injured
- Breach: You must prove the party you are suing breached the legal duty by acting or failing to act
- Causation: You must prove the other party’s action (or inaction) was the cause of the injury
- Damages: The person filing the personal injury lawsuit needs to prove they were harmed
While there are many different types of tort (personal injury) claims, the most common types involve motor vehicle accidents (car, truck, motorcycle), premises liability (injuries that occur on someone else’s premises), medical malpractice (hospital errors or physician errors), and product liability (injuries caused by a dangerous or defective product).
Below is the breakdown of civil trial according to the Bureau of Labor Statistics. According to attorney Sam Wendt, a personal injury lawyer based in Kansas City, 95% of lawsuits settle out of court do the fact that going to trial is expensive and usually both parties want to avoid the litigation costs of trial. These figures below only represent around 5% of all personal injury lawsuits filed.
#1: If there are no injuries, you do not have a personal injury claim
If you were in an accident but there are no injuries, you don’t have a personal injury claim. What you have is a possible property damage claim.
#2: If there are injuries, are they minor or major?
If injuries were involved, you then have a possible personal injury case. The general rule is simple. If injury is involved and it’s anything more than a minor injury, you will need the help of a lawyer. If there the injuries are minor, you may be able to handle the claim without the help of a lawyer although that isn’t always the case depending on the insurance company.
In almost all cases where an injury is involved, if you want to get a fair settlement you will need the help of a lawyer so the insurance company does not take advantage of you.
One of the biggest mistakes people make is thinking the insurance company is on their side. The insurance company’s goal is to pay out as little as possible to any claim they handle so they can maximize their profits. Because of this, they will often try to take advantage of people who don’t have a lawyer standing up for them. Do not make the mistake of trying to handle this yourself or you could cost yourself or your family a lot of money.
#3: DO NOT give a recorded statement to the insurance company
The insurance company will ask you to give a recorded statement. Why do they do this? To try to get you to say something that will de-value your claim. We recently created an article that gave tips on dealing with the insurance company after an accident. The #1 most common piece of advice given by attorney? You guessed it. “Do not give a recorded statement to the insurance company“. Keep in mind that the insurance company claim agents are trained to ask you very specific questions. The way you answer these questions can ruin your case so it’s always wise to consult with an attorney first so you are not taken advantage of.
#3: Find a personal injury attorney who is both TRUSTWORTHY and GOOD
Some people don’t like the thought of hiring a lawyer and having to pay a percentage of the fee to handle their personal injury lawsuit. Here’s why that’s a flawed way of thinking. The insurance company is trained to pay you as little as possible. When they see a “layperson” handling their case without the help of an attorney, they know they can take advantage of that person and pay far less than they would if an attorney was involved. They can pay you pennies on the dollar of what your case is actually worth. So don’t make the mistake of thinking that you can handle a case involving serious injury without the help of an attorney. Since you are smart enough to know you need a lawyer, the question now becomes, “How can I find a great attorney?”.
Considering there are thousands of attorneys to choose from, this is not always an easy task. Not to mention that in general, most people do not trust lawyers. Understandably so, as there are many bad ones out there. But there are also many great ones that can turn an unfair settlement offer from the insurance company into a six or seven figure settlement if the injuries warrant it! The best ways to find a lawyer to handle your injury claim are:
- A referral from a friend – Do you know someone who has hired a personal injury lawyer and would strongly recommend them? Notice, personal injury lawyer is in bold. If your friend hired a divorce lawyer or business lawyer that is completely different. You need a lawyer who specializes in personal injury law.
- A referral service – There are referral services out there that can help you find a lawyer. We are not a service, but we are fortunate to know some of the best attorneys across the country so we can provide recommendations if you need help finding a lawyer. This is a free service we provide to our website visitors.
- The Internet – You can research attorneys on the Internet. Just be sure to look at their online reviews and their website “case results” page. If they do not have one, in most cases they don’t have good enough results to show you and this is not a lawyer you want to hire to handle your personal injury claim. If you can see past results handling a case like yours and they have impressive verdicts and settlements, this is someone you want to consider hiring.
#4 – Interview the Attorney
It’s always best to speak to more than one attorney to see if you are a fit for each other. So what are the questions you should ask?
- Do you have experience handling cases just like my situation?
- How many years have you been practicing personal injury law for?
- Where can I see a list of your past settlements and verdicts? (if you do not see this on their website, this is important to find out)
- How often do you take cases to trial? (while most cases settle, you want a lawyer who will occasionally take a case to trial because that can often lead to a larger recovery)
- How much trial experience do you have? (if they have little or no trial experience you probably don’t want this lawyer handling your case)
- Will I be dealing with you or another person in your firm? (you don’t want to be passed on to a young associate instead of the experienced attorney)
- What is your communication process with your clients? (if they don’t offer a cell phone, that’s not a good sign. You need to be able to reach your attorney and need to make sure they are keeping you informed about your case)
- How often will I receive updates about my case?
- Why should I choose you over the other firms in town?
- Are you going to refer my case out or handle it yourself? (some law firms will try and refer the case out instead of handling it themselves)
#5 – Hire the Attorney on a Contingency Fee Basis
Most lawyers handle cases on a contingency fee basis, meaning you pay them nothing for their services upfront. If (and only if) they are able to recover money on your behalf, then you would pay them a percentage of the amount they collect. Typically this ranges between 33%-40% of the amount they recover. While this seems like a lot (and can be a huge amount of money), this is well worth it if they are able to get you a nice settlement. The attorneys that are on our recommended list have turned settlement offers from the insurance companies that ranged from $0-$5,000 and turned them into $500,000+ to millions. Ask anyone who has gone through the process and most will tell you that hiring a lawyer to handle their personal injury claim was the smartest decision they’ve ever made. After you find the right lawyer, they will handle filing the personal injury claim.
#6 -You must file your claim before the statute of limitations has expired
In all personal injury matters, there are time limits in which you have to file a claim. This is called the “Statue of Limitations” and it varies depending on the state you live in. This time limit ranges from one year to six years for personal injury claims. For example if you wanted to file a personal injury lawsuit in Oregon, you have 2 years to file a claim. In the state of Kentucky, you have just 1 year. The statute of limitations can also vary for minors who are injured.
Statute of Limitations
|District of Columbia (D.C.)||3 years|
|New Hampshire||3 years|
|New Jersey||2 years|
|New Mexico||3 years|
|New York||3 years|
|North Carolina||3 years|
|North Dakota||6 years (2 in wrongful death)|
|Rhode Island||3 years|
|South Carolina||3 years|
|South Dakota||3 years|
|West Virginia||2 years|
An important note here, do not wait till the last minute to file a lawsuit. Meaning, if the statute of limitations is about the expire that’s not a good idea to wait until the last minute as too many errors can occur.
#7 – Settlement or Trial?
After each personal injury lawsuit case is filed, this leads to either settlement or trial. Settlement is where the you and your lawyer agree to terms with the other side so the case can be settled out of court. If a mutual agreement can be made, the case will never see the inside of the courtroom which is often the best thing for both parties. This happens in most personal injury lawsuits. However, if your attorney feels that the other side is not offering a fair settlement offer, he or she may end up taking your case to trial. Trials can lost a long time, some can last years. It can be stressful and to the attorney who is handling your case this can be very expensive but it can be worth it to getting a fair amount of money for your lawsuit. This is why it’s important to hire a lawyer who has trial experience and who will be willing to take your case to trial if it is required to get you the money you deserve. Some lawyers never have any intent on going to trial and you can count on the insurance company knowing that fact. If the insurance company has no fear of going to trial, they know they can offer less than they would to a lawyer who will take cases to trial. For this reason, it’s in your best interest to hire a lawyer who will take your case all the way to trial if the insurance company is not offering you fair value for your claim.
Q&A on Filing a Personal Injury Claim
How Much Can you Recover?
The amount of money you recover for a personal injury claim will be different in every case. There is no pre-set formula. However, the more serious your injuries are the more you will be able to recover because of the cost of medical bills and the “pain and suffering” the injured person has to deal with. In order to prove your case, you will need evidence that supports your claim. Documentation of the following may be very important to winning your case:
- Medical records/reports
- Medical bills
- Prescription medication receipts
- Over-the-counter medication receipts
- Proof of lost wages
- Photos, video, etc.
- Logging your medical treatment, pain levels, missed time from work, etc.
How Will I Pay for a Lawyer?
Lawsuits can get incredibly expensive. Fortunately, almost all personal injury lawyers operate on a contingency fee basis, which means you don’t pay them unless they are able to recover money for you. That can be either through a negotiated settlement or taking the case to trial and winning in court. The great majority of all personal injury cases are settled out of court. However, there are times when the other side refuses to pay a fair amount and in those cases (if you have a good personal injury lawyer) your attorney may take your case to trial.
Are Consultations Free?
Yes. All personal injury law firms offer a free consultation so they can evaluate your case and situation. This way you are able to find out your legal options and how they think they can help you. It also enables you to see if you like the lawyer. These cases can sometimes last for years so it’s important to choose a lawyer who you feel you can trust and who you can get along with.
Aren’t all personal injury lawyers the same?
Just like in any profession, there are bad lawyers, average lawyers, good lawyers and great ones. The truth is that some attorneys will never take your case to trial. And while that may sound like a good thing because it may lead to a faster settlement, it’s not. Some attorneys never step foot in the court room and the opposing counsel knows this. When this is the case, the defense has no fear of going to court and often will offer less money to settle a case. In the end, you may end up getting far less money than you need to pay for medical bills (past, present and future) and for the pain you had to deal with or you currently have.
What Should I Expect When Meeting an Attorney?
The attorney will need to know information about your case. What insurance coverage do you have, have you talked to insurance adjustors, have you given recorded statements, what injuries you have suffered, have you received medical attention, etc. Depending on your situation, the attorney may:
- Decline to take your case
- Refer you to another law firm who is better suited to handle your case
- Tell you what your options are from here
- Ask you to sign an agreement for representation (but do not do this without reading the contract)
Should I Consider Handling My Own Personal Injury Case?
If your injuries are minor than “yes”, you should consider handling your own case. If your case involves anything more than minor injuries, the answer is “no”. If you do try to handle the case yourself, the insurance company will take advantage of the fact that you are not experienced in how to handle a personal injury lawsuit. Let an experienced attorney handle this for you. You will often times end up with a much higher settlement even after paying attorneys fees then if you handled the case yourself. The attorneys we work with have hundreds of cases where their client was offered nothing to a very small amount and they were able to negotiate a much higher settlement for their clients.
If You Would Like a Free Consultation
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