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Timeline of an Accident Claim & Settlement
There is no formula for exactly how long your personal injury case will take because of a number of factors unique to every case, but we can confidently say that there is no incentive in personal injury cases for your personal injury attorney to drag out the case. Although there are certainly other areas of law where the attorney makes more money for dragging on a case (e.g., family law, business law, etc.), personal injury cases are not that way.
This is because personal injury cases are paid on contingency fee, which means your personal injury attorney is only paid based on a percentage of the overall case settlement or jury verdict, generally 33% in most states. This normally works out better for victims because personal injury attorney is incentivized to maximize the settlement for the victim instead of incentivized to extend your case. So how long the case takes is instead dependent on how long it takes to maximize your case value. However, many clients are still interested in the basics of the case process, which generally goes as follows:
There are many types of personal injury cases, whether it a motor vehicle accident, a slip and fall, or a claim for medical malpractice. The main theme that must hold true for the accident is that it almost always must be because of another’s negligent act (except workers’ compensation claims).
The first thing that personal injury victims need to do is seek out emergency medical treatment, if needed. This includes going by ambulance if recommended by paramedics, a visit to the emergency room, or at a minimum a visit to a primary care physician. Next, especially if the victim is experiencing musculoskeletal issues, like back pain, neck pain, headaches, migraines, etc. they will want to seek out a competent injury chiropractor. If the victim has torn ligaments or broken bones, they will want to seek out competent injury physicians. Personal Injury attorneys can almost always assist clients in knowing who to seek out for specialty areas because of past client successes.
Meeting With Your We Win Injury Law Personal Injury Attorney
After seeking out medical care, it is normally advised to seek out a personal injury attorney quickly in the process. I often find clients unfamiliar with the process wanting to wait to seek out an injury attorney. This is not advised, especially if the victim is significantly injured. Certainly, we’re biased as personal injury attorneys, but it is because we know the risks of doing recorded phone calls with insurance companies and how waiting can make it difficult for an attorney to advise clients on proper mitigation of injuries, how to make sure their medical provider will work on a lien, and other similar issues. In fact, personal injury attorneys can normally assist victims in settling their property damage claim, or assisting in getting a rental car quickly, at no cost.
At the initial consultation you will want to provide your personal injury with as much information as you have with you. For example, driver’s exchange, police reports, or any medical documents you have will assist the attorney in evaluating your claim and giving you good advice. The attorney Don’t worry if you don’t have some of these documents, as your attorney can request them on your behalf once you have signed the attorney-client agreement and HIPPA release.
After signing the attorney-client agreement, the attorney will normally want to wait on any demands to insurance companies until after the victim is done treating. This is sometimes a long process based on the severity and extent of the injuries. Typically, the victim will want to update the attorney on any completion or change in treatment, or any major shift. For example, if the injury is unable to recover from traditional chiropractic methods, the client may be referred to a pain management doctor, or to do a surgical consult.
Behind the Scenes
While the client is continuing treatment, the attorney is doing some initial filings, including representation letters to insurance providers, and getting any policy information for policies that may be available for the victim. This can include motor-vehicle policies, homeowner’s policies, workmen’s’ compensation policies, etc. In Utah, insurance providers are also required to share what the policy limits are for each policy.
During this time your personal injury attorney will also be requesting documentation, including medical bills and records, wage, and income information, etc. The attorney may also retain medical professionals, occupational therapists, and other experts to assist in determining the costs of future medical care, earning capacity, and life plans depending on the severity of the injuries and/or the amount of insurance proceeds available.
The insurance company is contacted early in the process and normally involves back and forth with various insurance adjusters about the case. At times, this back and forth is only informational, letting insurance companies know of major milestones like a surgery. When the insurance company is informed will also depend on what policy limits are available. This is because if injuries are significant, your attorney might pressure them to settle for the entire policy limits. Other times, the personal injury attorney will present a formal demand letter asking for a set amount of compensation based on medical bills, pain and suffering damages, lost wages, costs of future medical bills, future lost earning capacity, etc. There are other times where punitive damages might be demanded if the at-fault party did something intentional or egregious, like driving under the influence. The insurance company normally will counter-offer and this back and forth can last weeks and months to get the insurance company as high as they will go.
When Settlement Negotiations are Successful/Unsuccessful
If the amount offered is for the policy limits, or a settlement is accepted by the client, a formal agreement will be created, which details the terms of compensation and requiring the client to release all future claims against the insured at-fault party. Everyone signs the settlement agreement, including the attorneys. Proceeds are reduced from the settlement amount and reductions are requested from medical providers, if necessary.
If insurance providers are not offering fair compensation, and the two sides are far off from what they believe is fair compensation, then the personal injury attorney will recommend filing a lawsuit. A complaint will be prepared and served on the other party.
Personal Injury Lawsuit Proceeds in Civil Court
There are times when there are not as much formal settlement negotiations and the case proceeds directly to the filing of a lawsuit in civil court. This can occur for a variety of reasons, including when there are multiple at-fault parties, multiple victims, or for extenuating circumstance, like statutes of limitations for medical malpractice claims. The personal injury attorney will advise the client early of any reason to file a lawsuit without entering into informal settlement negotiations.
Additionally in Utah under UCA Section 31A-22-321, when the amount of settlement being sought by a party is less than $50,000, the parties can elect to arbitrate. The benefit of using an arbitrator is that you save the costs associated with a final jury trial by using an arbitrator who determines the amount the insurance company must pay. However, there are certain restrictions forgetting to use this cost savings, including 1) the injury must be because of a motor-vehicle accident, 2) the injured victim can no longer sue the at-fault party personally, and 3) the victim is limited to recovery only against available limits of insurance coverage.
Discovery/Alternative Dispute Resolution
After the filing of the complaint and answer by both parties, the parties go through an evidence gathering period called “discovery.” These include requesting documents each party may have in their possession, interviewing witnesses through questions submitted in writing, called “interrogatories”, or through a formal under oath interview, called a “deposition”. The parties can also use the subpoena authority by the court to compel witnesses to testify, which might not have been available if a lawsuit was not filed.
During the discovery period, the parties can still enter informal settlement negotiations, but may be required by the court to go to use alternative dispute resolution options, which normally consists of formal mediation, although in some jurisdictions like the federal courts, the court will appoint a judge that is not assigned to the case to assist the parties in pre-trial settlement negotiations. Additionally, during any time during the lawsuit, the case can settle. In fact, most cases settle prior to a final trial, but normally after requests for documents, interrogatories, and depositions take place.
Jury Trial and Appeals
If the case does not settle, then there is a final jury trial. The jury will here all the evidence, including experts to testify about injuries, lost income, etc. The jury will decide issues like liability and how much to award for damages. Once the jury makes this determination, the judge will enter a final judgment and award. Either party can then appeal this decision to a higher court. However, if the jury doesn’t find that the at-fault party caused the injuries, the jury will award nothing.
This article is meant to give an overview of the entire settlement process. For a more detailed look at only the personal injury jury trial, check out our separate blog post here.
As there are enormous risks when trial is a winner takes-all-or-nothing trial, it is easy to see why many cases settle prior to a final jury trial. Having an experienced personal injury attorney can always assist an injury victim to determine whether or not to go to trial, or whether to settle. Contact our We Win Injury Law attorneys today for a free consultation. Remember, we don’t charge you anything and we only get paid if We Win!