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This is the third part of our series on the stages of a personal injury case. If you missed the previous articles, you can read part one here and part two here.
Our previous article covers claim review and investigations, which set the stage for settlement negotiations. During this step, your attorney will present the at-fault party’s insurer with a demand for the compensation of your financial losses or damages. If negotiations fail, your only choice will be to file a lawsuit against the at-fault party. We will take a closer look at both of these stages in the last installment of our series on the personal injury process.
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.