If you've brought a car accident claim, you just want a fair settlement so you can get on with your life. Most personal injury claims settle without a lawsuit or a trial. But what happens if the other driver (or more likely, the other driver's insurance company) refuses to come to the table with a reasonable settlement offer? Should you file a lawsuit? And if so, how do you do that?
We'll discuss the differences between a car accident insurance claim and a lawsuit, explain when it makes sense to sue, walk you through how to file your case in court, and more.
Car accident insurance claims and car accident lawsuits share some important characteristics. Most obviously, in both of them, you—the person bringing the claim or filing the lawsuit—want to recover as much compensation for your injuries (called "damages") as you can.
But claims and lawsuits also differ in very important ways.
You bring a car accident insurance claim when you notify the other driver's insurance company that you're seeking damages for personal injuries or property damage caused by the other driver (in insurance terms, the "insured") in an auto accident. The best way to do this is typically through the insurance company's online claims page or with a written claim notice letter.
While the claim is ongoing, you'll likely communicate and negotiate with an insurance adjuster assigned to the claim. The process is informal, and there isn't an independent third party (like a judge) to resolve factual or legal disputes. The claim process generally goes on until the case settles or the parties agree that they can't settle it on their own.
A car accident lawsuit is a formal legal action that happens in the civil court system. In a civil lawsuit, the "plaintiff" (the person filing the lawsuit) sues to recover money from the "defendant" (the person being sued). During a lawsuit, you (or more likely, your lawyer) will communicate and negotiate with the insurance company's lawyer. Your case can still settle after a lawsuit has been filed. In fact, some cases settle during (or even after) the trial.
(Here's a helpful timeline that explains how a personal injury case moves from an accident to an insurance claim, and then to a lawsuit.)
First things first: Do you live in a no-fault insurance state? If so, you can't file a car accident lawsuit against an at-fault driver unless your medical expenses or injuries meet certain state law minimums, called "thresholds."
If you can't settle your insurance claim and you want to collect damages (and you aren't in a no-fault state), then you'll need to think about whether to file suit. Here are some things to consider.
Before you file, make an honest assessment of your case and the likelihood you'll win. This means weighing the strengths against the weaknesses and figuring the odds that you can get what you want—more damages—out of the suit.
As you work through this process, keep in mind that every case has weaknesses. The key is whether the strengths of your case are enough to overcome them.
You file a lawsuit because you think you can win more damages in court than by accepting a settlement offer. But a lawsuit will mean increased expenses, too. As you factor in the costs involved, focus on these three things.
As the saying goes, "time is money." A typical car accident lawsuit will take between nine months and a year to get to trial. The case can go on long after trial as well, especially if there's an appeal.
Stated a bit differently, a lawsuit will almost certainly prolong, not shorten, the time it takes to collect the damages you're after. Before you commit to filing suit, make sure you can tolerate the delays that are likely to occur.
Case expenses include things like court filing fees, costs for witnesses, travel, transcripts, and much more. Even in a relatively simple car wreck case, these expenses alone (not including attorneys' fees) can exceed $10,000 if the case goes to trial. If your case involves complicated facts, injuries, or legal issues, the costs can be many times that amount.
In some cases, an experienced lawyer will agree to advance the case expenses needed to get your lawsuit to trial. If you win, those expenses will be deducted from your settlement or verdict. If you lose, the fee agreement between you and the lawyer might require you to repay the case expenses. Be sure you speak with your lawyer about who's ultimately responsible for case expenses if you lose the case.
If you've got a good case, chances are you'll be able to find an experienced car accident lawyer who will take your case on a "contingency fee" basis. This means the lawyer won't charge you by the hour. Instead, they'll take a percentage—typically between 33% and 40%—of any settlement or verdict you receive.
Before you file a lawsuit, make sure you can collect any verdict you might get. Most often, this means finding out if the defendant has insurance that will cover your damages. Generally speaking, filing a lawsuit against an uninsured defendant is throwing good money after bad.
How do you file a lawsuit and get the case ready for a trial? We'll briefly take you through the main steps, from filing to trial.
If you plan to handle the lawsuit by yourself, before you start you should find a current version of your state's "rules of civil procedure." These rules—together with another set of rules called the "rules of evidence"—cover much of what will happen during your case. The rules are technical, complex, and sometimes difficult to understand and apply.
Chances are you're not familiar with these rules. The time to try and learn them isn't when you're representing yourself in the middle of a car accident lawsuit. Give serious thought to hiring an experienced car accident lawyer. Your opponent will be represented by legal counsel. You should be, too.
Courts tend to be somewhat lenient with unrepresented parties, and most judges will tolerate an occasional good-faith mistake. But repeated failures to follow the rules might land you in hot water with the court. Judges have the power to "sanction" (penalize) parties who frequently violate the rules.
In most states, a lawsuit begins when the plaintiff files a document called a "complaint" (some states call it a "petition") with the court.
A complaint consists of numbered paragraphs describing:
In some states, the complaint must specify the amount of damages the plaintiff wants to recover. In other states, this isn't necessary.
You must file your lawsuit in a court that has:
Most often, you'll file your car accident complaint in a state court in (or nearest to) the place where the car accident happened.
As a rule, the court can't exercise its authority over the defendant, and the defendant isn't required to respond to your lawsuit, until the defendant has been "served" with the lawsuit. Service means delivering to the defendant (in a way allowed by your state's rules of civil procedure) a copy of the complaint, together with a "summons" that commands the defendant to appear in court and defend the suit.
While the time allowed to serve a lawsuit varies from state to state, 30 days from the date the complaint was filed is typical. This deadline usually can be extended for a good reason, like when the defendant is difficult to track down. If you need more time, you should ask the court, in writing, for an extension.
The court will dismiss your lawsuit if you fail to serve the defendant as required by the rules.
Once properly served, the defendant must respond to the lawsuit. In many cases, the defendant's first response will be a written request (called a "motion") that the court dismiss your complaint. You'll get a chance to respond to the motion.
If the defendant doesn't ask the court to dismiss your case, or if the court denies the defendant's motion, then the defendant files a document called an "answer." The answer is organized in numbered paragraphs. Each paragraph usually admits or denies the allegations listed in the corresponding paragraph of the plaintiff's complaint.
Also, the answer is where the defendant will identify any legal defenses to the plaintiff's claims.
Discovery is the part of a lawsuit when the parties exchange information that's relevant to the case. The scope of discovery—meaning the things the parties are allowed to discover—is quite broad.
In general, discovery will result in the exchange of:
Discovery is designed to give all parties a fair opportunity to gather important facts so they can plan their side of the case. Permissible discovery methods are described in the rules of civil procedure. Most routine car accident lawsuits will include these kinds of discovery.
Once discovery is complete, the case can move forward to trial. Most car accident cases are tried before a jury, but the parties can agree to waive a jury trial and instead try the case to the judge.
Here are the main steps in a civil trial:
After closing arguments, the jury (or the judge) considers the evidence and reaches a verdict, usually in favor of the plaintiff or the defendant. In a case with many legal claims, though, the plaintiff might win some and the defendant might win others.
Once the verdict is announced, the court enters a "judgment" on the verdict. The judgment is simply an order that:
In a word: Yes.
Here are just a few of the skills and abilities an experienced car accident lawyer brings to your side of the case:
The insurance company will be represented by experienced lawyers. Without a car accident attorney on your side, you're at a disadvantage you'll find tough to overcome. You only get one chance to file and present your car accident lawsuit. Your best chance at success will come from having an expert car accident attorney on your side.
Once you've decided to file a car accident lawsuit, your next step should be to hire an experienced car accident attorney. Here's how to find a lawyer that's a good fit for you.