Steven A. Bagen | October 26, 2022 | Uncategorized

Personal Injury Law Question

How Does a Personal Injury Claim Work?

Accident victims often suffer injuries that leave them in pain—and need ongoing medical treatment. When an accident results from someone else’s negligence, accident victims may be eligible to file a personal injury claim or lawsuit to recover various damages. After establishing that there is a potentially wrong-doing leading to an injury your pursuit to filing a claim involves three main steps:

  1. The first step to pursuing monetary compensation after an accident is to file a personal injury claim—usually with the at-fault person’s insurance company. The next step is negotiating with the insurance company adjuster and pursuing favorable settlement compensation from them. If the insurance company disputes fault for the accident—or the settlement adjuster will not offer sufficient monetary compensation—the accident victim’s lawyer can file a lawsuit in court seeking damages.
  2. After filing a lawsuit, your lawyer may continue settlement negotiations, but the case will continue moving forward through the court system. The parties may resolve their dispute at a jury trial, mediation hearing, or binding arbitration proceeding if necessary.
  3. One of the most important steps in your personal injury claim or lawsuit is to retain knowledgeable legal counsel to represent you. If the insurance company sees that you do not have legal representation, their adjusters will take advantage of you and likely offer you far less than your case is worth.

A knowledgeable personal injury attorney can advocate for you at all stages of your claim, including during settlement negotiations and court proceedings. Your injury accident lawyer will work hard to help you recover the full damages you deserve for your accident-related injuries.

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What Leads to a Personal Injury Lawsuit?

Accident victims are typically eligible to file a personal injury claim or lawsuit when their accident and injuries result from another person’s negligence. A person or entity is negligent when they fail to follow the applicable standard of care and act unreasonably under the circumstances.

Common examples of negligent actions and inactions include:

  • Violating a traffic regulation and causing a motor vehicle collision in which others suffer injuries
  • Failing to properly maintain premises, causing a slip and fall or other accident
  • Failing to properly manufacture or design a product, causing it to explode or malfunction and cause a consumer to suffer injuries
  • Failing to perform repairs in a safe, careful, and workmanlike manner, causing a machine to malfunction and injure someone
  • Failing to properly supervise or manage employees—or hiring and retaining a negligent employee who causes an accident while on the job
  • Medical providers botch a surgical procedure, misdiagnose or fail to diagnose a patient, or otherwise breach the duty of care they owe to their patients.

If you suffered injuries in any of these incidents resulting from another person or entity’s negligence, you might have legal options. Your attorney can advise whether you are eligible to file a personal injury claim or lawsuit under your circumstances. If you are, your lawyer can file the claim promptly and begin negotiating a settlement with the insurance company.

Common Injuries that Accident Victims Suffer

When individuals suffer injuries in accidents resulting from negligence, they may require extensive medical treatment that lasts for many weeks or months. An accident victim’s injuries depend upon various factors, including the type of accident that occurred, the force of the impact, and the body parts affected.

Some of the most common injuries that accident victims suffer include:

After your accident, you must follow up at an emergency facility as soon as possible. An ER doctor or urgent care provider can physically examine you, order the necessary imaging studies—including MRIs and X-rays—and render an accurate medical diagnosis. Your provider can make the necessary recommendations if you require additional medical care. For example, your provider might instruct you to follow up with your primary care doctor or a medical specialist, such as an orthopedist or neurologist, if your injuries worsen over time.

Seeking prompt medical treatment after an accident is extremely important. This is because, in some instances, injury symptoms do not appear right away. For example, it sometimes takes days or weeks for symptoms to appear in the context of soft tissue injuries and traumatic head injuries.

Seeking early treatment helps prevent seemingly minor injuries from worsening over time. Moreover, seeking early medical treatment shows the insurance company and their adjusters that your injuries are serious and that you are prioritizing your medical treatment. That way, they cannot later claim that you waited too long to treat your accident-related injuries.

While you complete most of your medical treatment, your personal injury attorney can start handling the legal aspects of your claim or lawsuit. First, your lawyer can gather your lost wage documentation, medical treatment records to date, injury photographs, accident scene photographs, police reports, eyewitness statements, property damage photos, and a victim impact statement.

Your lawyer can then draft a settlement letter and assemble all of these documents into a complete demand package to forward to the adjuster once your treatment is complete. Your lawyer can then begin negotiating a settlement offer with the adjuster on your behalf.

Steps Before Filing a Lawsuit

Before filing a personal injury lawsuit, your lawyer will first need to file a claim with the at-fault individual’s insurance company. The claims-filing process begins when your attorney submits the settlement demand package and demand letter for the insurance company adjuster’s review. The adjuster will review all of these documents and decide whether to accept or reject liability for the claim. If the adjuster accepts fault for your accident, they might make an offer to resolve your claim via settlement. Remember that most initial settlement offers from adjusters are very low—and well below the true value of your personal injury claim. Therefore, your lawyer may need to engage in numerous settlement negotiations with the adjuster in an attempt to convince them to increase their offer.

If the settlement offer eventually increases, you have the option of accepting that offer. However, if the adjuster refuses to compensate you fairly for your accident-related injuries, your lawyer may file a lawsuit in court and begin the litigation process. Your lawyer can help you decide whether a particular settlement offer is “good”—and whether it is worth accepting, given the circumstances of your accident and the extent of your injuries.

Initiating the Lawsuit

The litigation process begins when your lawyer files a personal injury lawsuit in court. However, just because your lawyer files suit does not mean your case can no longer settle. In fact, the majority of personal injury claims settle well before the scheduled trial date.

After your lawyer files a lawsuit and the defense lawyer files a formal Answer, the court will likely enter a scheduling order in your case. This order will establish various deadlines for certain case milestones, including discovery. The court may also set a pretrial conference, settlement conference, and trial date in your case.

During litigation, your lawyer may continue negotiating with the adjuster and assist you during every step of the discovery process.

Discovery

The main purpose of litigation discovery is for both parties to obtain more information about the case. During discovery, the parties typically answer one another’s written questions, called interrogatories. They may also take one another’s depositions. For example, the defense lawyer may take the accident victim’s discovery deposition to learn more about how the accident happened and the injuries they’re claiming.

The defense lawyer might also ask questions about the accident victim’s medical treatment and the overall impact the accident had on their life.

A court reporter will normally record the deposition testimony stenographically. Moreover, a deponent provides their testimony under oath—just as if they were testifying in court.

During discovery, your lawyer can help you answer interrogatories and thoroughly prepare you for your deposition so that you will testify convincingly.

Trial

If the parties’ issues remain unresolved by the end of discovery, the personal injury lawsuit may proceed to trial. At trial, a jury will decide the outcome of all disputed issues in the case. In most instances, the primary issue in dispute is that of damages—or the amount of money to award the accident victim in the case.

Under certain circumstances, jury verdicts are appealable. However, these circumstances are extremely rare. A knowledgeable personal injury lawyer can help you decide whether it might be beneficial for you to take your case to a civil jury trial, given your accident circumstances. Your attorney can also explain the potential risks and benefits of going to trial.

Alternative Dispute Resolution

As an alternative to trial, the parties may consider several alternative dispute resolution (ADR) mechanisms. For example, they might take their case to mediation, at which time a neutral mediator can help them resolve the issues in dispute.

Moreover, the parties may consider binding arbitration. At a binding arbitration hearing, a neutral, third-party arbitrator will listen to the evidence that the parties present through their attorneys. The arbitrator will then decide the amount of damages to award the accident victim.

Potential Damages in a Personal Injury Claim or Lawsuit

If you suffered injuries in an accident that a negligent individual caused, you might be eligible to recover various damages. To recover damages, you must prove all of the legal elements of your claim or lawsuit. Specifically, you must demonstrate that another person or entity owed you a duty of care, that they violated this duty of care, and that, as a result, you suffered injuries in an accident of their making.

The damages that accident victims may recover typically depend upon the extent of their injuries, the cost of their medical treatment, and their pain and suffering.

Common damages that accident victims may recover include compensation for:

  • Medical expenses, including the costs associated with doctor visits, surgical procedures, and physical therapy
  • Lost income, including the amount that an injured individual lost in wages from being unable to work after their accident
  • Loss of earning capacity, where an accident victim had to switch jobs and take a pay cut due to the injuries they suffered in their accident
  • Loss of the ability to use a body part, such as where the accident victim sustained a permanent injury, including full or partial paralysis
  • Loss of life enjoyment, where an accident victim’s activity levels, ability levels, and overall quality of life decline due to the injuries they suffered in their accident
  • Emotional distress and mental anguish, such as when an accident victim suffers post-traumatic stress disorder or some other mental health condition that requires treatment from a counselor, psychologist, or psychiatrist
  • Humiliation, such as where an accident victim suffers unsightly scarring in an accident
  • Permanent disfigurement or disability, such as where an accident victim suffers a disfiguring injury—or an injury that completely disables them—in an accident
  • Loss of spousal companionship and consortium, where an accident victim’s injuries prevent them from spousal intimacy

Your lawyer can maximize the damages you recover in your personal injury lawsuit by downplaying any weaknesses in your case and highlighting the strengths. Moreover, your lawyer will advocate for your legal interests during settlement negotiations—and at a jury trial or binding arbitration proceeding.

In a personal injury claim, time is of the essence. This is because accident victims only have a limited period in which to file their claim or lawsuit. Therefore, you must retain experienced legal counsel in your case as soon as possible after your accident.

Your lawyer can begin working on your case immediately, gathering the necessary claim documents and filing a claim with the appropriate insurance company. If necessary, your personal injury lawyer can file a lawsuit within the statutory limitations period and bring your case to an efficient resolution in the court system.

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