Overview

A great deal of information for claimants is available on the Internet, mostly through various trial lawyer's associations including ATLA, which can be reached here.  The first step in successful resolution of a claim for personal injuries, whether from an auto accident, workplace accident, or from any other cause, is to contact an attorney experienced in representing the claimant in such cases. 

Basics

In an accident or injury case, the law generally provides that the innocent party is entitled to be restored to the condition that he or she enjoyed prior to the  accident or injury. This may include compensation for the injury sustained, any resulting disability suffered, any loss in earning capacity incurred, and any loss or damage to property. 

In order for a claimant to prevail, his or her attorney must persuade the other side that the injury was caused by negligence, the extent of the harm, and the need for  compensation.

Because the vast majority of personal injury cases are settled before a lawsuit is filed, this page will discuss the process before a claim would go to court. The process of a court case is beyond the scope of this page.

The first step toward pursuing a personal injury claim is selecting a lawyer or law firm and scheduling an interview with an attorney to review the claim.

The attorney will ask a series of questions designed to gather information about how the accident happened. These questions will address the instrumentalities involved in the accident, the date, time and place of the occurrence, the onset of the symptoms of injury, and the treatment received from physicians, hospitals and other medical care providers. You should be prepared to provide as much detail as possible. The attorney will use this information to evaluate the strengths and weaknesses of your claim.

You will benefit from hiring an attorney early in the process. An attorney can offer protection, shielding you from numerous phone calls from the other party’s insurance adjuster or lawyer. Your claim may require that certain activities (e.g., preservation of evidence or reconstruction of an auto accident) be taken care of immediately. Your attorney can handle these activities, as well as provide you with legal guidance.

When you hire the attorney, you’ll be asked to sign a fee agreement. Some attorneys charge by the hour, while others charge a contingency fee. A contingency fee means that the attorney gets a percentage of the final settlement. You will need to understand which fee structures are available from your attorney, as well as how other expenses (e.g., filing fees, photocopying costs, court costs) will be handled. Before you sign a fee agreement, make sure you understand exactly what is included and what the projected costs would be if you win or lose your case.

If you proceed with your claim, you may be asked to sign wage loss, medical, employment, tax and other general  authorizations for the release of information pertaining to you and to your claim. These authorizations allow your attorney to obtain copies of your records to identify information that is relevant to your claim.

During your personal injury claim, you will be referred to as the claimant (and as the plaintiff if you file a lawsuit). The party from whom you are seeking compensation will be referred to as the tortfeasor (and as the defendant if a lawsuit is filed). Your attorney will determine who the potential defendants are and whether they are legally liable. To identify the defendants, your attorney will start by examining the facts of the case – those that were presented in the initial interview as well as those uncovered during the investigation phase. In addition, your attorney will review the law regarding legal issues in your claim and will consider whether you and the defendant acted reasonably under the circumstances (i.e., whether you or the defendant or both were negligent).

To gather information about your claim, your attorney may ask you to prepare a client statement. This can take different forms. One form of a client statement is a letter from you to your attorney. In this letter, you describe how you were injured, the extent of your injuries, and anything else you think is relevant to your case, including how your life has been affected. Only you know what happened and how you feel. By preparing a client statement, you’ll guarantee that your attorney knows the details of your experience.

Because this is a letter from you to your attorney, it is protected by the attorney/client privilege, which means that the opposing attorney cannot access any information between the attorney and client.

While you prepare your client statement, your attorney will be investigating your claim. This process can include interviewing witnesses, reviewing medical records, reviewing statements you’ve made about your injuries to others (e.g., the police), evaluating your wage loss, investigating the sources of money that are available for compensation, and identifying any expert witnesses you may need to adequately present your claim.

In most instances, your claim should not be settled until you have finished all medical treatment. By waiting until treatment is finished, you will know exactly how much injury you sustained, how much treatment was required, and how much, if any, permanent damage you suffered. If you settle before you finish treatment, you may not know the true long-term effects of your injuries, and you may not be compensated for those long-term effects.

When you finish treatment, your attorney will contact your doctor for a final report. This document will explain your physical condition at the time the report is made, how much disability is present, whether your injuries are permanent, whether your injuries will limit you in your employment, and whether you’ll need surgery or additional medical treatment in the future. In addition, if a previous injury is involved, the doctor will indicate which symptoms or disabilities are due to which injury.

However, you cannot wait indefinitely to decide whether to settle your claim or proceed with a lawsuit. Your state’s statute of limitations dictates how many years from the date of injury you have to file a lawsuit. Be sure to ask your attorney about your state’s statute of limitations. If the deadline is approaching, your attorney will ask your doctor for a final report and will advise you whether to settle or file a lawsuit.

The length of time it takes to settle a personal injury claim is almost impossible to predict. It could easily be a year or more before you and your attorney decide whether to settle your claim or file a lawsuit. It could be even longer if you are still receiving medical treatment. And if you proceed with alternative dispute resolution or go to trial, it could be many additional months.

Your attorney will not be able to give you an estimate of how much your claim is worth until you are ready to settle. Many factors affect the value of your case. These range from your percentage of fault and liability, to the long-term effects of your injuries, to where your claim would be tried if it goes to trial. Also, avoid comparing your claim to other cases. Remember, no two cases are alike. Predicting your claim’s value based on another settlement is unreliable.

If you and your attorney agree that it is best to settle your claim, your attorney will submit a demand letter to the other party’s insurance adjuster. This letter or brochure will present all of the information about your claim, describe how your life has changed, and make a demand. Then, you’ll wait for the insurance adjuster’s answer.

Your attorney will help you decide whether to accept or reject the insurance company’s offer by reviewing the bottom line financial benefit. Your attorney will arrive at this bottom line number by: making a list of your claims, highlighting all of the strengths and weaknesses and important issues; calculating the chances of winning and losing each claim: estimating the chance that a jury will decide in your favor if your case goes to trial; and deducting applicable costs, such as litigation fees, and possibly reimbursement of your insurance company for what it has paid, and payment of outstanding medical bills.

You should also consider non-economic factors, such as whether you want to avoid the time, expense, and distraction of a lawsuit, as well as how much risk you’re willing to assume. Remember, if you go to trial, there is a chance that you will lose your case. In addition, even if you win, there are still costs that you may be required to pay.

Be sure to let your attorney know if your claim involves workers’ compensation. A special formula dictates the percentage of a settlement that you would receive if your case involves workers’ compensation. Your attorney can explain the specifics of the formula to you.

Despite the best efforts of you and your attorney, you may not be able to reach an acceptable settlement with the other party. If this is the case, your attorney will advise you on your options. If you decide to proceed with a lawsuit, your attorney will explain the litigation process.