Know what you're getting into before you decide to take your personal injury case to court.
In theory, filing a personal injury lawsuit isn't difficult; coming away with a fair result is the challenge. The basic idea of the lawsuit filing process is straightforward: to inform both the court and the person you're suing (the defendant) of the basis for your case. In practice, it's not always easy for claimants to know how the court-based process works.
What Is a Personal Injury Lawsuit?
In simple terms, a personal injury lawsuit is filed in court by someone who has suffered some kind of injury that was the fault of someone else. The injured person (now called the "plaintiff" in court) files the lawsuit against the at-fault person (the "defendant"). The lawsuit essentially asks the court to:
- decide that the defendant caused the plaintiff's injury, and
- determine how much compensation ("damages" in the language of the law) the defendant should be ordered to pay the plaintiff as a result of the injury and related losses.
Types of Personal Injury Lawsuits
Personal injury lawsuits can be filed over any kind of accident or injury you can imagine, including:
- traffic accidents
- slip and fall incidents
- dog bites
- mistakes by doctors and other health care professionals (medical malpractice)
- dangerous or defective products, and
- assault and other intentional acts
What to Do After an Injury or Accident
No matter what kind of accident or incident might give rise to a personal injury lawsuit, the steps you take in the hours and days after your injury are crucial to the success of any lawsuit you end up filing—or any insurance claim you make. Learn more about how to protect yourself and your case:
- Get prompt medical attention after an accident.
- Take notes after an accident or injury.
- Preserve evidence for your personal injury case.
- How witnesses can help an injury claim.
- Get help from a personal injury lawyer.
Should You File a Personal Injury Lawsuit?
Any time you suffer an injury that looks like it was caused by someone else's carelessness, emotions can run high. But before you rush to the courthouse seeking justice, it's important to be sure that a personal injury lawsuit is the right move. Here are a few questions to consider.
Are Your Injuries and Other Losses Significant Enough to Make a Lawsuit Worth It?
If someone else caused an accident that ended up injuring you, you might be angry, and you might want to make the other person "pay." But the reality is that unless your injuries were significant, it might not be worth the stress of a lawsuit.
Have You Tried Resolving the Matter Out of Court First?
Whatever type of injury leads to the filing of a personal injury lawsuit, in most situations the injured person has already made some kind of attempt to get a settlement from the at-fault person before taking the matter to court.
If you haven't yet tried to resolve your injury claim out of court—by engaging in injury settlement negotiations—it almost always makes sense to do so before going to the time and hassle of filing a lawsuit.
Does the Defendant Have Insurance or Assets to Cover Any Court Award?
Whether it's car insurance, homeowner's insurance, or some other kind of policy, If there's liability insurance that covers the incident that caused your injury, there's likely plenty of money available if you win your lawsuit and the defendant is ordered to pay your damages.
On the other hand, if there's no insurance coverage that applies to the incident, and the defendant has little in the way of assets or income, you're likely going to have trouble actually getting your hands on any money even if you win your lawsuit. Learn more about collecting a judgment after you win in court.
Have You Discussed Your Situation With a Lawyer?
Since you're the one who was involved in the accident and who came away with injuries, you're not exactly in an objective position. It's tough to evaluate your options and make an informed decision on the right way forward when you're so close to the action.
An experienced legal professional has the expertise to consider the strengths and weakness of your potential personal injury lawsuit, and can counsel you on the best strategy for you and your case. Learn more about what to ask a personal injury lawyer.
What You Must Prove to Win a Personal Injury Lawsuit
It's a bit of a simplification, but with most personal injury lawsuits, proving and "winning" your case requires establishing two main things:
- that the defendant (the person or business you're suing) is legally at fault for your injuries; proving this element means pulling in evidence like police reports, photographs, witness testimony, and surveillance/security video; learn more about proving fault in a personal injury case.
- the nature and extent of your injuries and other losses ("damages" in the language of the law) resulting from the defendant's negligence or other wrongdoing.
Who Should You Sue?
In most situations where you're considering a personal injury lawsuit, it's fairly clear who was at fault, and who you should sue. For example:
- for a lawsuit over a car accident, you would usually sue the at-fault driver
- for slip and fall lawsuits, the property owner is the typical defendant
- dog bite lawsuits are almost always brought against the dog's owner
- the defendant in a medical malpractice lawsuit is usually the doctor or other health care provider whose mistake harmed the patient, and
- injury lawsuits over a dangerous or defective product are typically brought against the product manufacturer.
You're (Usually) Not Suing the Insurance Company
It's important to clarify that even when an insurance company has issued a policy covering the incident that led to your injuries, if you end up filing a lawsuit over that incident, it'll be against the policyholder (the person who caused the accident), not against the insurance company.
So, let's say you've been trying to negotiate an injury settlement with the other driver's car insurance company after a traffic accident. The insurer isn't coming to the table with a fair offer, so you want to take things to the next level by filing a lawsuit. The defendant in your lawsuit would be the at-fault driver, not the insurance company. That's true even though payment of any court judgment you receive would likely come from the insurance company.
Could Anyone Else Be Liable for My Injury?
There are some situations in which the person who seemingly caused your accident might not be the only one who bears the legal blame.
For example, if you were in a car accident with another driver who was "on the clock" as an employee at the time of the crash, their employer might be on the legal hook if you decide to file a personal injury lawsuit over the accident. Learn more about the concept of "respondeat superior" in a personal injury case.
The Statute of Limitations In a Personal Injury Lawsuit
Keep in mind that you'll need to get your personal injury lawsuit filed before the statute of limitations deadline expires. A statute of limitations is a law that puts a strictly-enforced time limit on when a lawsuit must be filed. Every state has its own deadlines for different kinds of cases, but a two-year time limit is common for personal injury cases among the states.
Depending on the kind of case you're filing and the law in your state, the statute of limitations "clock" may begin running:
- when your personal injury occurs
- when you actually discover your injury, or
- when you should have discovered your injury in the eyes of the law.
If you don't file your lawsuit before the statute of limitations expires, you are permanently barred from ever bringing that lawsuit in court.
For personal injury lawsuits, the statute of limitations ranges from one to six years, depending on where you live. For details, check the statute of limitations in your state.
How to File a Personal Injury Lawsuit
A personal injury lawsuit begins by filing a set of documents with the court, serving those papers on the defendant, and waiting for a response.
The Personal Injury "Complaint"
To explain the basis for your lawsuit, you will need to prepare and file a complaint (sometimes referred to as a "petition"). The complaint is a formal legal document which identifies the legal and factual basis for your personal injury lawsuit:
- The beginning of the complaint will identify you (the plaintiff), the defendant, and the court you're filing your lawsuit in. This part of the complaint is called the "caption."
- The next section will consist of numbered sentences or paragraphs that explain the court's jurisdiction to hear the case, identify the legal theories (i.e. negligence) behind your allegations, and state the facts related to your lawsuit.
- Your complaint will also specify what relief you're seeking, including the amount of money you're demanding from the defendant (your "damages").
- The last part of your complaint will contain your signature (or the signature of your attorney if you have one).
The Summons and Service of Process In a Personal Injury Lawsuit
At some point you'll need to file a summons in court, which is a document that identifies the parties to your lawsuit and explains to the defendant that they are being sued. The summons also usually contains a signature of the court's representative (often the clerk of court) and the seal of the court.
After you file the complaint and summons with the court, you need to serve a copy of each on the defendant. This is absolutely critical because without proper service, the court will not have jurisdiction over the defendant. And without jurisdiction, the court can't impose any judgment on the defendant
"Service of process" is the legal term for serving the defendant with the summons and complaint. Service of process is completed when the defendant (or a representative of the defendant) receives a copy of these documents.
Generally speaking, anyone who is not a minor and not a party to the lawsuit may serve the defendant. Most of the time, professional process servers, court officials, or law enforcement officers complete service of process.
Service of process must take place within a certain time limit, commonly 30 days after you filed your complaint and summons with the court. But if you have trouble serving the defendant, the court will almost always grant time extensions, as long as you're taking reasonable steps to find and serve the defendant.
Are There Fees for Filing a Personal Injury Lawsuit?
Yes, in addition to filing the summons and complaint, you'll need to pay a filing fee. The exact amount of the fee varies pretty widely depending on the court and type of lawsuit, but it's typically between $100 and $400.
Defendant's Response to the Complaint
After you file your summons and complaint with the court, and serve those documents on the defendant, the next step is for the defendant to respond to your complaint. This usually means the defendant files an "answer" to your complaint, in which the defendant responds to each of your numbered allegations in the complaint and either admits or denies each.
Will My Personal Injury Case Settle?
So far we've discussed the usual course of a personal injury lawsuit, but it's important to keep in mind that the most likely outcome to any personal injury case is out-of-court settlement.
The parties involved in a personal injury case (the injured person, the at-fault party, and their insurance companies and attorneys) will likely talk settlement early on (often before a lawsuit is filed). If a mutually satisfactory resolution can't be reached, the injured person will typically file a lawsuit. But the prospect of settlement will be in the back of everyone's mind, and an agreement to resolve the matter could be reached at any point on the timeline of a personal injury case.
Learn more about why most personal injury cases settle.
How Much Is My Personal Injury Lawsuit Worth?
This is a big question on the minds of most personal injury claimants. But the answer is very much dependent on the facts of your particular case. Big picture-wise, the value of any personal injury case is usually determined by a few key factors, including:
- the clarity of the fault picture (Was the other person obviously liable for your injuries?)
- the seriousness of your injuries and their impact on your life (including the extent of your mental and physical "pain and suffering"), and
- the availability of insurance coverage or assets to pay any settlement or court award.
Learn more about figuring out how much a personal injury case might be worth.
Do I Need to Hire a Personal Injury Lawyer?
Understanding how the personal injury lawsuit process works is important, but obviously how your lawsuit is handled is the key to getting the best result.
You might be able to handle an injury-related insurance claim on your own, at least initially, and see if you can come away with a fair settlement. But if you're getting pushback from the at-fault party's insurer, and it looks like it's time to escalate things by going to court, now is the time to discuss your situation with a lawyer, get an objective evaluation of your case, and an explanation of your best options. And if filing a lawsuit is the right move, putting your case in the hands of an experienced personal injury lawyer is crucial.
Learn more about finding and working with a personal injury lawyer, or use the features on this page to connect with an injury attorney in your area.
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