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Some people with a valid personal injury claim may feel overwhelmed or intimidated by the legal process designed to address and amend such grievances. In this three-part series, we present the steps to take when pursuing a typical injury case, from medical treatment to resolution. We hope that this series will help members of our community make informed decisions with regard to pursuing their personal injury claims.
Situations that give rise to personal injuries claims are diverse. A person may pursue such a claim – and possibly a lawsuit – after sustaining injuries in a car crash, a slip and fall accident or following an injury that resulted from medical malpractice. Each claim is as unique as the circumstances that led to it and the parties involved in the mishap. At the same time, however, all personal injury claims share many common characteristics. For example, in order for a claim to be valid, the victim must prove that the injuries he or she sustained occurred as a result of the negligence or recklessness of another party. In addition, the injured party must be able to show that the injuries led to financial losses or damages. In general, all personal injury claims – regardless of the state or jurisdiction – must meet these two basic conditions.
Similarly, even though the details of each individual personal injury case may be different, each follows the same basic process governed by the provisions of American tort law. If you or your family member are considering filing a personal injury claim in relation to an accident or a mishap you have suffered, it is important that you understand the various stages of a typical personal injury case. This knowledge may help you and your family prepare yourselves for what lies ahead and make informed decisions at each stage of the process, thus increasing your chances of a successful resolution of your case.
In this three-part series, we will provide a straightforward explanation of a typical personal injury process in Kentucky and Tennessee – from treatment through settlement negotiations to trial and verdict. In doing so, we hope to clarify many common misconceptions and help our readers to approach their claims with confidence.
Step 1: Seek Medical Care
The importance of seeking medical attention as soon as possible after sustaining an injury cannot be overstated. Delaying treatment can have grave consequences, not only for a person’s long-term physical health but also for their chances of obtaining financial compensation for their injuries.
While in the case of extensive bodily harm it is obvious that the victim must be taken to the hospital without delay, some of those who sustain less serious injuries never actually seek medical attention nor receive the treatment they may require.
At times, an accident victim may reason that if their injuries seem minor and if they don’t experience any apparent symptoms – save for some pain and soreness – a visit to the doctor’s office isn’t really necessary. However, even seemingly minor accidents and trivial injuries can negatively affect a person’s well-being in the long run. Soft tissue damage or a concussion are just two examples of serious medical conditions that can seem insignificant or even imperceptible to the victim at first. Therefore, seeking medical attention after an accident – even if only to receive a check-up – should be of primary concern to the victim.
As mentioned, obtaining treatment is also important from a legal perspective. When a person receives treatment in the hospital or from another health care provider, medical records are created. These records describe the type and severity of injuries sustained and contain details of the treatment. Such information can then constitute important evidence in a personal injury case. If a victim doesn’t seek medical care, no medical records will be produced. Later on, when all visible proofs of the injury may cease to exist, their potential personal injury claim may become virtually invalid.
In addition, waiting too long before seeking treatment can jeopardize a person’s chances for just and satisfactory compensation. If a victim procrastinates seeking medical attention, the at-fault party’s insurer or attorney may argue that the injuries weren’t, in fact, all that serious and therefore any claims for financial compensation are unsubstantiated.
For the reasons summarized above, seeking medical care and treatment can be rightfully called the first step of the personal injury process. In the following article, we will explore the importance of the next two steps – choosing the right attorney to represent your case and the subsequent review of your claim by your lawyer.
STEP 2: Consult With A Personal Injury Attorney
It’s no secret that laws and legal procedures can be complex and difficult to navigate. Personal injury law is by no means an exception to this rule. In order to successfully present a personal injury claim, a person must be able to comprehend highly specialized terminology, correctly fill out stacks of paperwork, and precisely respond to counterclaims of the at-fault party and their representatives. Trying to do all that while still recovering from both the physical and emotional impact of the accident is a true feat most victims may not feel capable of.
Fortunately, a personal injury lawyer can take care of a vast majority of formal work related to your claim or lawsuit. A competent attorney will do all they can to make sure you don’t feel unnecessarily burdened by the technical and legal complexities of your case. This will allow you to focus all your time and energy on recovery.
The decision and the responsibility to choose the right attorney, however, are yours and yours only. It is important that you realize how crucial this choice is when it comes to the ultimate success or failure of your case. Some accident victims may feel that they can work with the very first attorney they encounter – regardless of the attorney’s professional background. However, if you’d like your case to prevail in the courtroom, you need a competent, experienced lawyer who is accustomed to representing victims in circumstances similar to yours. Therefore, take your time when choosing an attorney. Do your research, ask around, review their record of previous cases they’ve handled. Only when you’re convinced that you’ve found a lawyer who will best represent you and your case should you hire one.
STEP 3: CLAIM REVIEW & INVESTIGATION
Once you have settled on an attorney, his or her first objective will be to gather all the necessary information about the accident, your injuries, and the resulting financial losses you have sustained. The information will help your attorney to prepare a strong case that will give him or her a good basis to present the at-fault party’s insurer with reasonable and just financial demands.
This stage of the personal injury process is called claim review or investigation. It usually starts with your attorney asking you questions about the circumstances of your case. Your attorney will also help you retrieve your medical records and analyze them in order to assess the seriousness and scope of your injuries. He or she may even put you in touch with other health care providers and doctors to make sure you have reached the point of maximum medical improvement.
Another important part of your attorney’s job will be to review the testimonies of the witnesses – or try to obtain such testimonies. Your attorney will also closely analyze any other available evidence. Depending on the type of accident, this may include police reports, photographs from the accident scene as well as photographs of any property damage that may have occurred.
Claim review and investigation will allow your attorney to gather evidence of fault and design the best strategy for your claim. Once he or she has gathered all the necessary information, your claim will be ready for the next stages of the personal injury process – settlement negotiations and a potential lawsuit.
Step 4: Demand Letter & Settlement Negotiations
In order to formally initiate settlement negotiations, your attorney will prepare a demand letter and send it to the at-fault party’s insurance company. The letter will include all the information pertaining to the accident such as an explanation of the circumstances that led to it, parties involved as well as the scope of the injuries you sustained. It will also serve to present all the evidence of fault gathered during the investigation stage, clearly showing why the other party should be held liable for your injuries. The demand letter must also enumerate your financial losses, itemize general damages such as pain and suffering, and state the total amount of compensation you are demanding from the insurer.
Demand letters are rarely met with an immediate, positive response. In the majority of cases, the insurance company you’re presenting your claim to will try to contest either the basis for making the demands, the total amount of compensation demanded, or both. The insurer is likely to make counterclaims and present your attorney with a counteroffer. Settlement negotiations will proceed until the sides manage to strike a satisfactory deal or until one side decides a constructive settlement isn’t possible.
If the at-fault party’s insurance company isn’t willing to concede to legitimate financial demands presented by your lawyer, or if it isn’t responsive to any efforts to settle the claim outside the courtroom, your lawyer will likely decide it’s time to take the next step in the personal injury case – the lawsuit.
Stage 5: Litigation
Against order to initiate a lawsuit, one of the parties must file a complaint at the courthouse in the county where the accident occurred or where the other party lives. In the context of litigation proceedings, we no longer talk about the injured party and the at-fault party; rather, the party who files a complaint is called the plaintiff while the party the lawsuit is brought against is called the defendant.
In the complaint, the plaintiff must set forth who the parties are, the reasons for bringing the lawsuit, and the type and amount of damages, or financial compensation, being sought. The defendant, in turn, may choose to respond to the complaint, admitting or denying the allegations, and even producing a counterclaim in which they may argue that they are, in fact, in a position to seek financial redress.
After the litigation process has been officially set in motion, the lawsuit enters into the discovery phase. During the discovery, both parties have an opportunity to gather more information in order to support their respective cases. The discovery process may include:
- Depositions – a formal interviewing of witnesses under oath but before the actual trial
- Interrogatories – a formal request for information by the means of a written response
- Request for documentation – a request for a copy of documents in possession of the other party
Before the actual trial, both parties engage in pre-trial motions. A motion is a formal suggestion regarding the lawsuit. For example, parties may request that a piece of evidence be excluded from the trial. In addition, a defendant may request that the lawsuit be dismissed or argue that there is no real issue to be tried and ask the judge to rule in their favor without a trial. However, if you work with an experienced lawyer, the argument he or she constructed will most likely be strong and coherent enough to defend itself against such attempts and the case will go to trial.
During the trial, the plaintiff tries to prove the validity of their case while the defendant tries to defend themselves and show that the plaintiff is not entitled to the damages. Both sides are able to bring and examine witnesses, provide expert testimonies, etc. Before the trial starts – as well at any time before the verdict has been delivered – the parties are allowed to enter into settlement talks in order to reconsider a deal. If a settlement is reached, the case is closed. Otherwise, the trial comes to an end with a verdict taken and pronounced by the judge or the jury after the case has been heard. The verdict announces which party prevailed in the lawsuit and – in case the defendant is found liable – it also specifies the damages and compensation amounts that the plaintiff is entitled to.
Admittedly, the personal injury process may feel extensive and even intimidating, however, as shown in this series, a person with a valid injury claim can take comfort in knowing that their grievances can be addressed and amended in an orderly, systematic, and just way governed by this very process and the principles of the law. As Hughes & Coleman Injury Lawyers, it is our hope that this series of articles will help members of our community make informed decisions with regard to exercising their legal right to seek financial compensation for unjust injuries.