1.) The claim is filed – First, a claim must be opened with the at-fault driver’s insurance company. (Your injury lawyer can do this for you if you do not want to deal with it.) The insurance company might ask you for a statement about how the accident happened. They might even ask to record your statement. You do not have to do so. Any communication with the insurance company about the accident should go through your injury lawyer’s office.
2.) The insurance company determines liability – Once the claim has been opened, the insurance company has a limited time to either accept the claim, deny the claim, or request more information about the claim. This decision starts with an investigation into who was at fault for causing the accident. The person who was legally at fault (“liable”) also has a legal obligation to pay for the injuries caused by the accident.
The insurance company might try to say that you were partly or wholly at fault for the accident because they only have to pay for the portion of injuries and damages that were caused by their client. You want an experienced injury attorney on your side to prove just what happened and who is legally at fault for causing the accident.
3.) Your attorney documents the full value of your medical bills and other losses – Your medical records and billing invoices document the necessity of your medical care. Your attorney will compile these in a format that is easy for a claims adjuster to review. In many cases, the injury victim has not finished receiving medical care by the time the case must be filed.
Your attorney can hire a life care planner to estimate the value of the future medical care you will need throughout your lifetime. The same process is done to document your lost wages. If you were out of work for a limited time, your employer could provide a statement showing exactly how many hours you missed and what your rate of pay is.
If you are permanently unable to work, your attorney can hire a vocational expert to testify about what your employment prospects are in light of your injuries. An economist can then calculate the difference between your wages before and after the accident. You are entitled to compensation for all the future wages you will lose because of your injuries.
4.) Your attorney makes a settlement demand to the insurance company – Once these calculations are complete, your attorney is ready to negotiate a settlement offer from the insurance company, starting with a “demand letter.” The demand letter itemizes each area of compensation (including medical bills, lost wages, and future losses) and supports them with documentation of these losses. The letter will also demand fair compensation for your pain and suffering. The demand letter and supporting documentation are sent to your assigned claims adjuster for consideration.
5.) The insurance company negotiates the value of your claim with the insurance company – Claims adjusters approach demand letters in a variety of ways. In cases that involve relatively minor injuries and a lower settlement amount, the adjuster might use a very basic computer program that analyzes the amount of the claim, a very impersonal and inaccurate method of valuation. It does not take into account your particular pain and suffering. Your attorney can counter an offer created by a computer with evidence of your specific losses.
In complex cases, the assigned adjuster might need to consult with a senior claims adjuster or supervisor – or even an attorney in the insurance company’s legal department. These employees tend to have more experience, so they have a better understanding of what pain and suffering is fairly worth. The attorneys also understand the strengths and weaknesses of a case at trial. Sometimes, it is actually easier to have settlement negotiations between your lawyer and a lawyer for the insurance company because they can focus on the legal issues of your case.
In any event, your attorney will work with insurance company employees to negotiate a fair settlement offer for your injuries. If an agreement can be reached, you will sign a release of liability, and the insurance company will send a check to your attorney. Your attorney will deduct their fee, administrative costs, and any medical liens against your settlement that must be paid. The remaining funds will be paid directly to you. If no settlement can be reached, your attorney may advise you to file a lawsuit against the defendant.
6.) Your attorney files a lawsuit against the negligent driver (or company) that caused your injuries – If your case cannot be resolved through settlement, your recourse is to go through the court system. This process starts by filing a complaint against the negligent driver (and any other defendants). You do not need to go to court for this. Your attorney will prepare the complaint and related documents, have them filed with the court, then serve the defendant and their insurance company with formal notice of the lawsuit.
Sometimes, the mere fact that a lawsuit has been filed is enough to get the insurance company to make a fair settlement offer, which can be an effective strategy when the other side needs to know that you are serious about litigating your case. If the initial complaint does not lead to a fair settlement offer, your attorney will proceed with the rest of the litigation process.
7.) The parties proceed through pretrial investigation and court hearings – After the initial complaint has been served and the defendant files a formal response to the lawsuit, the attorneys begin their investigations of the case, known as “discovery.” The attorneys discover admissible evidence by issuing subpoenas for documents, deposing witnesses, sending each party formal written questions to answer, and hiring expert witnesses to review the evidence that they receive from the other side.
This process is important, as it helps each attorney prepare their own case for trial. Additionally, discovery also assists attorneys in assessing the strengths and weaknesses of their opponent’s case, which can lead to more productive settlement negotiations. Your case can settle at any point in the discovery process. If it does not, your attorney will continue preparing the case for trial.
The court will hold periodic status conferences throughout the discovery process, which gives the attorneys a chance to update the court about their progress on the case and advise the court of any legal issues that they cannot resolve. (If, for example, the attorneys cannot agree about whether a certain piece of evidence is admissible at trial, the court can hold an evidentiary hearing and listen to arguments from both sides before making a ruling on the issue.) All these steps help to prepare your case for trial.
8.) If necessary, your case will go to trial – Your case can settle at any point prior to trial. Some cases even settle in the very moments before the trial is set to begin. If, however, the insurance company simply refuses to make a fair settlement offer in your case, your best legal option might be to go to trial and let a jury decide what your case is fairly worth. The trial starts with jury selection.
The court will call in a large panel of prospective jurors, and the attorneys will each get to ask them questions. The court can excuse any prospective juror if they cannot be fair and impartial. The attorneys can also use “peremptory strikes” to excuse jurors for any reason. Once a jury has been chosen, the court will swear them in and give them instructions about the case. The case then proceeds with each attorney making their opening statement.
Because the plaintiff filed the case, the injury victim’s lawyer is the first to make an opening statement and call their witnesses. The defense lawyer then follows and has the right to cross-examine the plaintiff’s witnesses. Once the plaintiff’s attorney has presented their entire case, it is the defendant’s turn to call witnesses. Here, too, the other attorney gets to cross-examine the witnesses.
After each side has presented its case, the lawyers will make their closing statements (again, plaintiff first, then defense). The jury is then excused to deliberate about the case. The verdict can take a few minutes or a few days. Judges are hesitant to declare a hung jury and call a mistrial, so they often allow juries lengthy periods to deliberate as much as they need to. When the verdict does come back, it will be read aloud in court. Your attorney will advise you if there are legal steps that should be taken after the verdict is issued (for example, filing an appeal).
