Typical personal injury claims include claims arising from car accidents, medical malpractice, and dog bites, among many others. Most personal injury claims never see the inside of a courtroom. Even among those that do, few make it to trial. When claims do make it to trial, however, there is often a lot of money at stake.
Although no two personal injury cases are exactly alike, the following sequence describes the process of filing a personal injury claim in some detail. Your case will probably differ from this description in at least a few particulars.
Talk to a Lawyer to Find Out if You Have a Claim
It’s a waste of time to pursue a claim that you have no realistic chance of winning. In many cases, all it takes is a free initial consultation with a personal injury lawyer to find out if you have a claim worth pursuing.
If the lawyer offers to represent you, your claim is almost certainly valid. Under the contingency fee system that most personal injury lawyers use, your lawyer will not charge you anything in attorney’s fees unless they win compensation for your case.
Investigate Your Claim
An initial consultation with a lawyer probably won’t be enough to generate enough evidence to succeed in court. If you hire a lawyer, they will conduct an investigation for you. The kinds of evidence they will collect might include:
- Your medical records;
- Interviews with witnesses;
- Photographs or videos of the scene of the accident;
- A police report or accident report;
- Employment records (to prove lost earnings);
- Documentation of any property damage;
- Documentation of your medical bills and other related expenses; and
- Records of communication with insurance companies.
These are just a few examples of the types of evidence that your lawyer might collect.
Attempt Settlement
Your lawyer will then send a demand package to the other side that describes your claim, provides evidence for it, demands compensation, and sets a deadline for a response.
If the other side responds with an offer, even an extremely low offer, you might be better off trying to settle your claim, at least for a while, before you file a lawsuit. Let your lawyer do the negotiating for you.
Two important facts to remember are:
- Your lawyer cannot accept a settlement offer from the other side without your permission.
- Statistically, almost all personal injury claims end at the settlement table, not at trial.
Most injury victims try to exhaust their negotiation options before they file a lawsuit.
Identify the Proper Court
You must file your lawsuit with the clerk of the appropriate Alabama court;
- If your claim does not exceed $6,000, file your claim in Small Claims Court.
- If your claim exceeds $6,000 but does not exceed $20,000, you can file your claim in the District Court or the Circuit Court.
- If your claim exceeds $20,000, you must file it in the Circuit Court.
Most parties who sue in Small Claims Courts represent themselves. You can, however, hire a lawyer to represent you there if you prefer.
Complete Filing Formalities
Take the following steps to commence your lawsuit:
- Draft a formal complaint. Your complaint must thoroughly describe your claim; unless you are filing in Small Claims Court, it must comply with strict rules of procedure.
- Draft a summons. The summons is the document that tells the other side how to respond to your complaint, meaning submit a formal answer, show up in court at a specific date and time, or contact your lawyer.
- Pay the appropriate filing fee.
- Serve the complaint and summons on the defendant. Typically, this means that a neutral third party personally delivers the papers to the defendant.
- Wait for the defendant to submit an answer. The general deadline is 30 days after service.
If the defendant fails to respond within 30 days, you can win a default judgment. If they respond, the litigation process will continue from there. Under the Alabama statute of limitations, you generally have two years from the date of your injury to file a lawsuit.
Once you complete these steps, including diligent efforts to serve the defendant, you have beaten the statute of limitations deadline. If you miss the deadline, you will have abandoned your claim.
Pretrial Discovery
Pretrial discovery is a phase of litigation where each party demands evidence from the other side and, sometimes, from third parties. This process can include:
- Depositions of witnesses;
- Written interrogatories;
- Demands for access to physical evidence; and
- Demands to copy documentation.
A court can enforce discovery through sanctions against an uncooperative party.
Pretrial Motions
In personal injury law, a motion is a request to the court to do something. A Motion to Dismiss, for example, is a request to throw out the victim’s claim. A Motion in Limine is a request to exclude certain evidence from the other side. There are dozens of different motions that parties commonly use in personal injury trials.
Mediation
In mediation, a trained third party helps both sides reach a voluntary agreement. A mediator cannot force you to agree to anything, however. The good news is that you can try mediation at any stage of settlement or litigation if the other side agrees to participate.
Once you file a lawsuit, however, the judge will probably pressure you to mediate. They might even refuse to schedule a trial until you try mediation.
Trial
Most personal injury trials take only a few days to complete. Some can be completed in a day, while a few take months or even years to resolve. Trial includes:
- Jury selection (voir dire);
- Opening statements by both lawyers;
- Presentation of evidence through examination and cross-examination of witnesses (first the plaintiff, then the defense);
- Closing statements;
- Jury instructions from the judge to the jury;
- Jury deliberation; and
- Jury announcement of the verdict.
Both sides can agree to dispense with a jury and let the judge decide the case.
Enforcement
The defendant will probably pay you what they owe you. If they don’t, however, you can ask the court to impose coercive measures such as garnishment of wages or freezing of a bank account.
Appeal
The defendant usually has 42 days after the entry of judgment to file an appeal. Most losing defendants do not appeal, and most appeals are unsuccessful.
Disbursement of Funds (Getting Your Money)
The defendant will send the money to your lawyer’s client escrow account. Your lawyer will deduct any appropriate amounts, such as their contingency fee. Your lawyer will then send the rest of the money to you.
A Skilled Montgomery Personal Injury Lawyer Can Help You Get Compensation
It would be an understatement to say that there are a thousand ways you can bungle a personal injury case. It’s not just a matter of whether you ‘win’ or ‘lose’. Real victory doesn’t just mean receiving compensation; it means receiving every penny you deserve.
Even a skilled and experienced Montgomery personal injury lawyer cannot honestly offer you an absolute guarantee. They can, however, offer you better odds than you would otherwise have enjoyed. Most attorneys will also offer you a free initial consultation to discuss your case.