If you have filed an insurance claim after an accident and are trying to collect, you most likely want a fair car accident settlement amount so you can move on with your life. But sometimes, the other driver and their insurance company dispute the facts of the case, where liability falls, or the extent of the injuries you suffered in the crash.
So what should you do if the other insurance company or driver will not make a reasonable offer for your car accident injuries and damages? Unfortunately, you may have to file a car accident lawsuit and take the case to court. This article will discuss the steps involved in the car accident lawsuit process, as well as pros & cons of filing a lawsuit vs settling with an insurance company out of court.
If you’ve been trying to settle your auto accident claim without a lawyer, you’ll likely need to hire one at this point.
Key Differences Between a Car Accident Lawsuit and a Car Accident Claim
There is sometimes some confusion on the difference between a car accident lawsuit and an auto insurance claim. Generally, an auto accident claim occurs when you tell the insurance company about a loss in an effort to collect insurance benefits under the at fault drivers insurance policy.
Negotiations that occur will usually take place between you and the adjuster for the insurance company, and because of the relative ease and low cost in comparison to litigation, this is the first step in the car accident lawsuit process, and the way most auto accident settlement negotiations end – no one really wants to spend months going to court.
A lawsuit is formal litigation that happens in civil court. The plaintiff tries to recover compensation from the defendant.
Pros And Cons of Filing a Car Accident Lawsuit
There are many pros and cons to filing a car accident lawsuit instead of settling directly with the insurance company. A personal injury lawyer will be able to advise you on the best way to proceed with your claim.
Pros of Filing a Car Accident Lawsuit
-You have more control over the outcome of your case if you file a lawsuit. If you only go through the insurance company, they have control over how much or how little they are willing to pay for your injuries. In a car accident claim you can ask, in a lawsuit you can demand.
-The car accident lawsuit process will require your injury attorney to gather more evidence and information about what happened. This could lead them to discover something that was left out of the investigation or give you a better chance of receiving compensation in the form of punitive damages from the person who injured you.
-In some cases, it’s best to file a lawsuit because the insurance company knows you mean business. Many auto accident claims have been settled in the final hour before a lawsuit was to be filed, because when insurance companies look at the very real possibility of all the costs associated with going to court, they’ll often recalculate their initial settlement offer and give the victim what they wanted in the first place.
-Many jurisdictions offer a pre-trial discovery phase, where your attorney requests the other party’s version of events. In personal injury cases, this helps show the “story behind the story.” Your lawyer might uncover something during this period that wasn’t included in the police report or revealed in the insurance investigation. This might lead to an increase of your settlement.
Cons of Filing a Car Accident Lawsuit
-It takes a lot more time: Even though some car accident lawsuits settle last minute, more times than not they take months or even years to resolve.
-It takes a lot more effort: Filing a car accident lawsuit means taking time off work to show up at court, meeting with your car accident attorney to prepare documents and evidence for trial, and a lot of other tedious, time consuming tasks that you’d probably rather not be doing.
-Car Accident Lawsuits are expensive: Auto accident attorneys fee’s are often higher for this type of litigation, because it takes a lot more time and work for them to prepare and work through the car accident lawsuit process than a normal settlement with an insurance company. While all personal injury attorneys charge a slightly different fee, 33% for an out of court settlement with the other driver’s insurance company is pretty standard, but it’s not uncommon to see a 40% contingency fee if the law firm ends up filing a lawsuit and entering the litigation process.
-You could lose your case in court and end up with nothing: This is definitely a worst case scenario, but you could lose in court and not be entitled to any compensation. It’s important for everyone to recognize that the car accident lawsuit process is not without risks. Winning in court isn’t automatic. You might lose in court and be forced to pay all of the defendant’s attorney fees, making your injuries even more painful to bear.
Consider All Options
It’s important to consider all of these things when considering whether or not to file a car accident lawsuit, especially if there’s a reasonable offer from the auto insurance company on the table already. Settling an auto accident claim out of court is often less time consuming, less risky and sometimes more profitable in the long run.
Every situation is different, so here are a few key questions to ask yourself when deciding whether or not to file a car accident lawsuit or try to settle out of court:
- Do I have a strong enough case that it makes more sense to try and win in court?
- Am I willing to put time, money and effort into settling my claim out of court?
- Is the offer (if there is one) enough to cover my expenses?
- Are the car accident lawyer fees any higher if we decide to go to court?
- How much can I expect to receive from a car accident lawsuit if I win?
- How much time will it take before the court reaches a verdict on my case?
If after asking yourself these questions, you determine that you want to file an auto accident lawsuit, below is how to do it.
Steps In The Car Accident Lawsuit Process
The car accident lawsuit process starts in most states when the plaintiff files the complaint with the civil court that will hear the case. A complaint is a legal document that usually has several paragraphs that states what happened, the damages that are claimed, and the legal reason for filing the liability lawsuit.
Different states have different filing protocols, but for the most part you’ll have to first file a document with the clerk of court or another administrative office in your state. This document is a notice which lets everyone involved know that a car accident lawsuit has been filed.
After this initial notification process there’s usually a short period of time before the actual complaint goes to the civil court. The time between these two events can be extremely short, often only hours, or it could take several weeks depending on the policies in your state.
Serving the Defendant a Complaint
The next step is one of the great aspects of the US legal system – providing notice to the defendant that he or she is the subject of some kind of legal proceeding. For example, if the state charges you with a crime, you have a right to know what the charges are.
A car accident lawsuit is a civil case, but you still must serve notice to the defendant that he is being sued.
When the complaint is filed with the court, it will be reviewed by a clerk. The clerk will determine whether or not everything is in order before the case can proceed to the next step – filing of an answer. After reviewing the filing of the attorney for each party, he or she may issue some type of notice of what is contained within.
Telling the defendant about the lawsuit means that you will serve them with a copy of the complaint. It is referred to in most cases as a summons. There are rules about who can serve the complaint, when and how. Rules vary from place to place. Usually you have 30 days to serve the defendant notice.
The defendant now responds to your complaint. He will admit or deny the allegations that are made in the complaint. The answer also allows the defendant to put forth a legal defense, such as claiming that you slammed on your brakes and that’s why he rear ended you, or that there was a street light out that caused the accident rather than his negligence.
The answer also sets forth any counterclaims that the defendant has. It is not unusual for defendants to file a counterclaim for money, claiming that they were in fact the victim here. This is where having a police report can come in very handy, but even though you may have a police report, there can still be questions about the accuracy of it. For example, if the defendant claims that he slowed down before hitting your car and you claim that you saw him coming at you and slammed on your brakes to avoid an accident, this could result in a legal dispute.
The answer will also contain a request for discovery from both sides. Discovery is information that is obtained from each party through written questions, depositions and requests for documents. Lawyers call this “getting your ducks in a row” because the information that is gathered is essential to proving or disproving liability.
From here, both sides will request documents from each other through written questions and requests for production of documents. This part of the lawsuit involves gathering any evidence which could support either side’s case. The lawyers may also file requests for admission, meaning that they are asking the other side to admit or deny fact without the need to produce any documentation.
The purpose of this phase is to give the defendant the opportunity for both sides to see the facts, so they can plan their case, which includes building evidence and arguments.
The parties will usually attempt to resolve their disputes during discovery, but if this fails then a court date is set by the judge. If it looks like a settlement is being reached, then the court date may be adjourned until later in order for both sides to continue settlement negotiations. In the end, if litigation can be avoided, both the insurance company and the parties involved usually benefit.
After the discovery process is finished, each side has all the information needed to make its case, and the trial phase of filing a lawsuit begins.
The trial usually will feature each side making an opening statement. An opening statement in an auto accident lawsuit is a chance for you to give the judge a brief overview of what happened and why you feel that you should be entitled to the amount of money you’re asking for. It also gives you a chance to introduce the jury to the evidence you’ll be introducing in the coming days or weeks.
After the opening statements have been made, you as the plaintiff will present your evidence and make your case. This usually includes producing documents such as medical bills and medical records, police reports, and photos of the crash scene, property damage, or your injuries.
In many auto accident lawsuits, witness testimony is also heard by the jury. Witnesses called to testify in an auto accident case are usually passengers in one of the cars involved in the accident, bystanders that saw how the crash occurred, or the first responders that showed up at the accident scene.
It’s also common to see expert witnesses brought in if your personal injury attorneys thinks they strengthen your case. Examples of expert witnesses in a car accident case would be an accident reconstruction expert, a medical expert who can help explain the injuries that you sustained in the accident, or an economist who can show how much money lifetime use of your right hand was worth.
Once both sides have presented all their evidence, each side will get a chance to give closing arguments. Closing arguments are when both sides summarize what they heard and saw during
Then the defense will be able to cross examine your witnesses, present a defense,
Then, the other driver’s insurance company and their defense attorney will have a chance to present any evidence they have and then your personal injury lawyers can cross examine the witnesses for the defense.
It is possible during the liability lawsuit that each side may file various motions to have evidence introduced or removed.
Once both sides have presented all their evidence and had a chance to call and cross examine witnesses, each side will get a chance to give closing arguments. Closing arguments are when both sides summarize what they heard and saw during the trial. Closing statements are the last part before the judge or jury renders a decision.
The verdict is reached through determining whose case is better according to a preponderance of the evidence. If you win, the defendant will be ordered to pay a certain amount. An appeal of the verdict is also possible from the defendant if they lose, although jury verdicts are rarely overturned, even though judges often disagree with the verdicts.
Remember that most car accident claims settle out of court because lawsuits are expensive and time consuming. That said, there are cases where it would behoove you to go to court because the defendant either refuses to offer a settlement or offers a small amount.
The best thing you can do if you’re trying to decide whether or not to file a lawsuit for your auto accident injuries or accept a settlement offer, the best thing you can do is speak to an experienced attorney. Most personal injury lawyers offer a free initial consultation and can give you a better idea of the economic damages you might get in a lawsuit as opposed to taking an injury settlement offer from the insurance company.