Guide to Personal Injury Cases
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If a car accident leaves you injured, you might consider filing a personal injury claim. With personal injury cases, you can seek monetary retribution for any harm done to you.
This guide will outline the different steps of a personal injury case, should you decide to pursue a claim.
NOTE: If you're injured in a car accident, you should first seek medical attention. The injuries could be more serious than you think, and medical stability/safety should be your primary concern.
Hire an Attorney
After you've been injured in an accident, life can seem overwhelming. You barely have time to recover as medical and insurance bills pile up. Even more frustrating, the car crash wasn't your fault, yet you are stuck with injuries and payments.
It's time to hire a personal injury lawyer. Make sure that whoever you decide on has experience handling personal injury cases.
Advantages to hiring a personal injury attorney include:
- Having someone who knows the ins and outs of personal injury court claims on your side.
- They will be able to do most of the paperwork and investigation for you.
- NOT having to pay attorney fees unless they win your case.
- NOT having to personally argue in court against other experienced lawyers.
- Having an attorney who knows how to negotiate settlements will help determine if you're getting a fair deal.
When you've decided on a lawyer, you will need to describe the accident in as much detail as possible, and your lawyer could even ask to see your medical records. Initially, your attorney must remain objective and clear-minded in order to build the strongest case possible.
Remember, anything discussed between you and your attorney should be kept confidential. If any information about your case gets out, it could diminish your chances at winning the claim.
File a Complaint
Having an attorney makes the process of filing court papers much easier than if you were to do it alone. As the plaintiff/prosecution you will be responsible for initiating the personal injury case.
The first step to filing a personal injury claim is writing out a complaint (which your attorney will usually do for you). The complaint will consist of a few different sections that aim to describe who is involved and what the case is about.
Specifically, the complaint will include:
- The people/parties involved (plaintiff and defendant).
- Legal basis for taking the matter to court.
- Your legal claims against the defendant.
- Supporting evidence/facts about your personal injury claim.
- A demand for judgment.
- What you want the court to enforce against the defendant (e.g. pay damages).
A summons is a court order to the defendant (sent with the complaint) letting them know that they're being sued and under what circumstances. A summons will usually include:
- The court/location of the case.
- A referral to the complaint.
- The amount of time they have to respond to the complaint.
- The defendant will either need to give a written answer to the allegations or seek to have the case dismissed.
If the defendant does not respond to the summons and complaint in a timely manner, they will be found guilty by default.
Defendant's Answer to the Complaint
In response to the complaint and summons, the defendant will provide a written answer. In their answer, the defendant will either admit, deny, or neither admit nor deny each claim you've made against them.
In some cases, the defendant may even file a counterclaim to your personal injury allegations.
If a counterclaim is filed against you, you have the option to respond with a written answer.
The discovery part of your personal injury case is simply the gathering of information by both sides. You, the plaintiff, have as much of a right to know everything you can about the defendant's argument as they do yours.
You and your attorney will gather information through:
- Written discovery: Interrogations and admission/denial of certain facts by the defendant.
- When the defense interrogates you, your attorney will most likely be present to advise you on how to answer their questions.
- Document production: The process in which both sides are able to request any documents relating to the case, including:
- Accident reports.
- Phone records.
- Medical information.
- Billing information.
- Depositions: Sworn statements made by those involved in the case, prominently witnesses, about the incident.
- Answers are recorded by a court reporter and are meant to give some indication as to how well the other side will answer and how your own witnesses will perform.
The discovery process can be lengthy and frustrating, but is crucial to building a strong case. Remember to be honest, even if it means saying that you simply do not know the answer.
Going to trial can prove to be quite the sacrifice. Completing the entire process could take weeks or months, which means missing work and other commitments at the risk of not winning.
There are a few instances in which you can avoid trial altogether, although they are usually dependent upon the actions and decisions of the defendant:
- A motion can be filed.
- A settlement may be reached.
There are different kinds of motions that the defense can file in order to avoid going to trial.
Motion to Dismiss
A motion to dismiss is brought before the judge on the basis that the complaint lacks legal validity. A few reasons why the defendant might file a motion to dismiss include:
- The court lacks legal jurisdiction over the matters at hand.
- E.g. filing a domestic complaint in criminal court as opposed to civil court.
- The court cannot exact its jurisdiction over the defendant.
- E.g. the defendant lives in a state that's different from the state in which court proceedings are happening.
- The summons and/or complaint were not filed in the correct manner.
Summary Judgment Motion
In this case, the judge must decide if the facts are indisputable, basically ruling that it would not be worth it to take the case to court. Either the defense or the plaintiff can file a summary judgment motion if they believe it's in their best interest.
Motion for Default Judgment
Your attorney will most likely seek this type of motion if the defendant failed to respond to the complaint and summons in a timely manner. If the judge rules in favor of the motion, the defendant is automatically found guilty.
A settlement is an agreement reached between the plaintiff and the defendant. Basically, the plaintiff agrees to not take the claim to trial as long as the defendant agrees to pay a certain amount in reparations.
A few things to take into consideration before agreeing to a settlement are:
- Your chances at winning the case in court.
- The amount of money being expended, including:
- How much you'll owe your attorney.
- How much you owe in medical and insurance bills.
- The possibility of a partial settlement.
- The effect of a trial on your life and daily obligations.
Remember that you have the right to go to trial—even if your lawyer suggests a settlement, you DO NOT have to agree.
NOTE: The majority of personal injury claims are settled. In fact, agreements are usually made before lawsuits are ever filed.
Going to Trial
If motions or settlements are not filed, then you and your lawyer will go to trial. A full trial consists of several steps including:
- Jury selection.
- Opening statements.
- Witness testimonies.
- Closing arguments.
- Jury deliberation and decision.
Say you've won your personal injury claim; the hard part is over, right? Wrong. Now, you must collect the payment the defendant owes you.
Usually when you're dealing with a company you will receive timely payments, as businesses tend to not enjoy dealing with collections agencies. However, when you're dealing with an individual, the process for collecting money can become difficult.
There are a few options that you have when deciding on the most efficient and fair way to collect your monetary retribution. These include:
- Taking a small percentage of the defendant's paycheck.
- Collecting a small amount from their bank account over a period of time.
- Having law enforcement officers forcibly remove money or assets from the property.
- Applicable when dealing with a company or corporation.
If the defendant files for bankruptcy, then you WILL NOT be able to collect money from them. This is why, with the help of your attorney, it's a good idea to conduct a post-trial investigation into their financial capabilities.