How Personal Injury Cases Work
You might don’t have any idea how personal injury cases work. Let’s try and demystify the personal injury process just a little bit…while keeping in mind that every case is different.
That way you won’t be as anxious about your case, and you’ll understand what’s happening at every step of the process.
Step 1 – You get injured
This is where the injury case begins. Whether it’s a car accident, a slip, and fall, or something else going very wrong, you get injured, and the injury is the result of some negligence on the part of someone who had a duty to you.
Ideally, at this phase you do three things: watch what you say, gather evidence, and get medical attention. You focus on following your doctor’s instructions and you take care of yourself. You also avoid saying or doing things that may be used against you later, like, “That was my fault,” or “whoa, I didn’t see that puddle there.”
By evidence gathering, we don’t mean, of course, that you have to be a detective. You should just take some photos and gather some names, numbers, and insurance information if you can. If you’re too injured to do these things don’t worry about it: getting medical care is always your priority, and we have had plenty of clients who were knocked unconscious during their accidents.
Step 2 – You retain a lawyer…or don’t
One of three things happens here.
The first is you try to retain a lawyer and they tell you that you don’t have a case, or your case isn’t very large. If you have minor injuries there’s a decent chance you’ll get a fair settlement from the insurance company. They don’t start fighting until big dollar amounts are involved.
If you’ve at least called the lawyer you’ll know this is the case. You won’t assume it, which is the second thing that happens. You’ll assume you don’t have a case or that it’s not worth it to call a lawyer. You’ll end up saying things to the insurance company that irrevocably damage your case, and you’ll probably end up taking a settlement that ends up being too low for your injuries if you had a case or a high-value case. This is, of course, the worst possible outcome, and the one you’ll want to avoid.
If you don’t take the lowball settlement you might hire a lawyer later, and the lawyer might still be able to help you. But chances are high you’ll have damaged your case at least a little, and the defense will have a much larger head start on putting theirs together. Thus, you could walk away with a lot less money.
The third scenario is that you call the lawyer right away and the lawyer, after a free consultation, agrees to take your case. The lawyer will then file your claim on your behalf, and you won’t have to deal with insurance companies at all. This minimizes the chances that you’ll say or do something detrimental and allows you to get back to healing. It also means your lawyer is moving on with the third step at roughly the same time the defense is.
Step 3 – Discovery takes place
Discovery is an investigation into the facts of the case, and it can take several forms.
The first is gathering evidence, reports, and documents that can help outline the facts of the case. The second is contacting and questioning witnesses. Your lawyers may examine discovery with each of these witnesses. This puts their answers on the record and allows us to bring up those answers with them again in court if they happen to change. We’ll examine both witnesses for your case and witnesses for the defense’s case.
This is also the time when our investigator might be hard at work discovering facts of the case, or when we might be contacting witnesses who can strengthen your arguments or help you display financial impact and loss to the courts.
Step 4 – You reach maximum medical improvement
Your case can’t move to the finish line until this happens. While you might still need some follow-up care, physicians can usually offer a prognosis at this point and help outline what that care might look like and how much it might cost.
This gives us an idea of what your final settlement should look like and the amount it will take to cover your bills.
Step 5 – Your lawyer attempts to settle your case
95% of the time, this will be the step that ends your case. Most cases are settled through a negotiation process.
You aren’t getting “less” when this happens. Indeed, you might get more money. You won’t, for example, have to watch experienced witness salaries get deducted from your final settlement.
If your lawyer is a skilled negotiator with a lot of experience in the personal injury field, he or she should be able to hand you something very close to what a really good jury or judge would offer you in court. This is, in reality, the best outcome as it’s risk-free. As long as both sides are willing to talk numbers that are within the range of fairness, you are guaranteed some sort of win.
Unfortunately, that doesn’t always happen. When the insurance company gets unreasonable, you also need a lawyer who is prepared to go to trial.
Step 6 – Court
If your injury case is one of the 5% of cases that will go to court then you’ll either have a jury trial or a bench trial. A jury trial is decided by a jury. The role of the judge will be to adjudicate between the two lawyers and to make sure legal processes are followed. The jury will decide each party’s percentage of liability and the award amount.
In a bench trial, there is no jury, and the judge decides each party’s percentage of liability and the award amount.
There are pros and cons to each type of trial and the type your lawyer requests will depend on the ultimate trial strategy.
The court will then hear the facts of your case. Witnesses will be called and cross-examined. Trials are extremely unpredictable, and you may even walk away with nothing at all by the time it is done. Of course, if you have a highly experienced, thoroughly prepared personal injury lawyer on your side, this is less likely to happen.
At times, the defendant may appeal, which can stretch the case out a bit. They only have one month to do it, however, and the Court of Appeals does not hear all cases.
Step 7 – The Payout
Assuming you get a payout, the money will go to your lawyer, who has a fiduciary duty to disburse it to those who have the first claim on it. That will most likely be your medical providers, any insurance companies who covered bills that were rightfully the defendant’s problem, and witness fees. Lawyers also get their contingency fees at that time.
What’s left is still likely to be up to ten times higher than what you would have gotten if you had simply taken whatever tiny check the insurance company wanted to offer before you got representation. At that point, you can choose to take it in a lump sum, or you can get a structured settlement that gives you some money within a certain period.
Either way, the money gets to you. And if it doesn’t necessarily make you rich beyond your wildest dreams, chances are it does allow you to get back on your financial feet. This is how personal injury cases work.