Introduction To Personal Injury Claims Process
If you have been involved in an accident that wasn’t your fault, you deserve to be compensated by the other party for the emotional and financial trauma caused by the accident. Of course, while most of us know that we have the option to hire a personal injury lawyer and pursue a personal injury claim, very few people actually know the process of a personal injury claim from start to finish.
In this step-by-step guide, we’ll take you through each step of the personal injury claim process and answer some common questions about each step in the process, so you can make informed decisions as you pursue the compensation you deserve.
What is a Personal Injury Claim?
Let’s cover the basics on the personal injury claims process to make sure we’re all on the same page. A personal injury claim is where someone, who was injured due to no fault of their own (known as the plaintiff), seeks financial compensation from another person, business, or entity who was responsible for their injury (known as the defendant), to cover the costs of their injury, any financial difficulties they’ve experienced due to the injury, and emotional distress. Personal injury lawyers or personal injury attorneys specialize in these types of legal claims and can help you navigate through the difficult legal process of personal injury claims.
What To Do If You’re Still at the Scene
If you are still at the scene of the accident call for an ambulance or ask someone nearby to do so for you. It’s important you are seen by a medical professional to record the accident and note down any injuries you have sustained. Be aware that it’s likely you are currently in shock and may have injuries the adrenaline is hiding.
If you are on a business’s premises, ask the manager to make an accident report and ask if there is any CCTV of the incident. If you have been in a car accident call the police and your insurance company. If you are able, get the names and phone numbers of the witnesses, and take pictures or video of the incident.
While any evidence you can gather now will help your case, your primary concern at this point should be in your own wellbeing. Sometimes it is better to have a loved one or family member gather any evidence, like take photos or witness names. It all depends on your circumstances.
Step 1: Hire Your Attorney
The first thing you need to do as soon as you can after your accident is research and hire a personal injury attorney. An experienced personal injury attorney will be able to guide you through the process, put together a great case for your claim, and combat any defense from the person or entity you are claiming from.
Most people start by searching “personal injury lawyer near me” and looking at the top results, but make sure you do your due diligence, even if you feel like you need an attorney as soon as possible. Look at each lawyer’s testimonials, meet with them, and ask them about how they will tackle your case. (If you’re looking for a personal injury lawyer in St. Louis, Missouri, contact us today and we can get that process started for you.)
Take a list of questions with you, make sure they answer them all and ask them about what they think the outcome of your case will be. While you want your attorney to be confident that they can get you a great settlement, beware of those who are willing to guarantee you a huge settlement. Yes, there are cases where an attorney can feel confident they’ll win you a great settlement, but too much bravado is a red flag.
Finally, discuss fees. Most personal injury lawyers are willing to work for a contingency fee (so they only get paid their fee if you get a settlement), so make sure you know how they charge, what they charge, and when they expect their payment.
If you agree to work together, your lawyer will first interview you about the accident and look at all the evidence surrounding the case, so they can decide if you have a good case. If they believe you do, you will move on to step 2. If they don’t believe you have a case, they will tell you at this stage and they won’t take your case any further.
Step 1 FAQs
Do I have to hire an attorney?
No, you don’t have to hire an attorney to file a personal injury claim, but it is recommended. Without one, you won’t have the guidance you need to get the largest settlement for your claim, and if the person or entity you are claiming from has a good lawyer, your claim may fail.
My accident was some time ago, but I am now feeling the repercussions. Can I still file a personal injury claim?
It depends. In Missouri, the statute of limitations for a personal injury claim is five years after the injury occurs.
All the attorneys I’ve spoken to charge the same fee. Is that normal?
Yes, most personal injury lawyers charge a similar percentage fee of the settlement, so you only need to worry if an attorney is charging much more or much less than the others you have spoken to.
An attorney I spoke to doesn’t believe I have a case. Can I seek a second opinion?
Yes, if one attorney isn’t willing to pursue your claim for you, you can speak to another and see if you can find representation elsewhere. You may find, however, that there isn’t enough legal evidence to pursue a claim.
Step 2: Send a Demand Letter
The next step is to send a demand letter. A demand letter gets the ball rolling and is the formal request from you (the plaintiff) to the defendant for payment for your damages. Your attorney will help you do this, but your demand letter will include what injuries and damages were sustained, why they are legally responsible for the injuries and damages, and the consequences of the accident. Consequences may be your medical bills, income lost from any time you were unable to work, and any ongoing pain and suffering.
The demand letter will be sent directly to the other party or their insurance company. This process is known as pre-litigation. In most cases, this demand letter will prompt an investigation by the insurance company’s “adjuster”. They will decide if there is a case and how much the claim is worth. They are looking out for the best interests of the insurance company and will do their best to minimize the claim and avoid a lawsuit.
If they refuse to pay or compromise the case progresses to a lawsuit, which is known as litigation. A claim may go to litigation if the defendant believes the accident wasn’t their fault, they don’t believe there is enough evidence for your claim or they don’t believe you truly sustained these injuries from the accident. If this is the case, your attorney will file a complaint.
Step 2 FAQs
If they agree to pay but not the full amount requested, do I have to accept?
No, you don’t. Your attorney will advise you on whether you should entertain their offer or not.
If they offer to pay the full settlement, do I still have to pay my attorney?
In almost all cases, yes, you do. Refer to your contract or agreement with your attorney.
How does an insurance adjuster decide what to offer?
Adjusters examine the same evidence that would be presented in court. They’ll look at medical expenses, damages, footage, witness reports, and more. They’ll also consider the policy limits and the strength of your case. The insurance company will never offer more than the maximum outlined in the defendant’s policy. If your damages exceed this limit, any remaining amount will have to be recovered from the defendant directly.
My attorney isn’t willing to send a demand letter until after I finish my medical treatment. Is this normal?
Yes, it isn’t unusual for an attorney to wait until a point of “maximum medical improvement” to send their demand letter. This is so they can demand the full cost of your medical treatment, or have an idea of your ongoing medical bills.
Step 3: File a Complaint
If an agreement has not been reached, the next step is to file a complaint. Filing a complaint is the official notice to the court and the defendant that you are filing a lawsuit against them and intend to seek compensation. This formal complaint will contain the people or entities involved, which court has jurisdiction over the case, the circumstances surrounding the claim, and the amount you are seeking.
Once your complaint is filed with the court, you and your attorney have 30 days to serve the complaint to the defendant, which must be done in person so there is proof of delivery. In most cases, this responsibility is outsourced to a process server.
When the complaint is served, they have another 30 days to respond, and the process moves on to the next step. If they fail to do so, the court will judge in your favor.
Step 3 FAQ
Do I have to file in the jurisdiction where the accident happened?
Not necessarily. If the defendant resides in a different state, you can sue them in that state because that state has jurisdiction over that person. Your attorney will be able to advise you on where you should sue.
Step 4: Discovery (Evidence Gathering)
The next step is known as “discovery”, which is essentially where both the plaintiff’s attorney and the defendant’s attorney question witnesses, investigate the claim and gather evidence to be used in court. The evidence they collect may be:
- Video or photo evidence
- Witness testimonials
- Internal accident reports
- Police reports
- Insurance reports
- Medical records and bills
- Income information
During this time, either side can file a motion for the case to be dismissed, delayed, or for a judgment to be reached. Alternatively, the two parties can negotiate in a meeting called “mediation”.
Step 4 FAQ
Does mitigation happen often?
Yes, most personal injury cases go to mitigation, and 95% will reach a settlement there.
Step 5: Settlement
Most personal injury cases end with the two parties going to mediation and deciding on a settlement out of court. In almost all cases, the plaintiff (you) agree to an amount of compensation you are happy with, and the defendant is able to keep the case from going to trial, at which time they lose control. It can also be favorable for the plaintiff if the evidence collected isn’t particularly strong. Your attorney will advise you on whether it’s a good idea to agree to their settlement or not.
If you agree to settle out of court, the amount is put in writing, finalized, and reviewed by the court to become a legally binding contract. In most cases, this contract will include an agreement to prevent the plaintiff from seeking further compensation, or from disclosing the settlement amount to others.
Step 5 FAQs
What happens if my attorney wants to settle but I don’t?
In most cases, you are in control of whether to take a settlement offer or not. You will need to discuss how to move forward with your attorney. If they believe you should settle it is worth taking into account their opinion, as they have seen numerous cases and will know what kind of settlement a claim like yours can expect. Remember you should have say in how the personal injury claims process moves forward, so don’t let your opinion go unheard.
Step 6: Going to Trial
If your case is in the minority (around 5% according to the Bureau of Criminal Justice) of personal injury claims that have to go to trial because the two parties could not agree on a settlement, then your case will be presented in court.
Each side will present their case in front of a judge or jury who will then make a decision. If they side with the plaintiff, the defendant will be ordered to pay (and the court decides the amount) for the damages sustained. If they decide the defendant isn’t legally responsible, the case will be dismissed.
Once this judgment is made, the “losing” side has a limited amount of time to decide whether to accept the decision or file an appeal. Once this time has elapsed, the claim has concluded.
Step 6 FAQ
Why do most cases settle out of court?
Most personal injury claims reach a settlement out of court because a trial is both costly and time-consuming, so unless the two parties are completely unable to agree on a settlement amount, it will benefit both to settle prior to a trial. The personal injury claims process can be an exhausting process sometimes, which is why it’s crucial you work with a good personal injury lawyer. One that will understand your personal needs and work with you throughout the entire process.
If you’ve had an accident that wasn’t your fault, we’re here to help. To find out more about how we can help you, contact us today for a free case evaluation.