The first step of most car accident cases is to file claims with the insurance companies of liable parties to seek payment for your losses. While some insurance claims are successful and car crash victims get the compensation they need, many claims don’t go as planned. There can be delays, lowball offers, and even denials of valid claims. Insurance companies can play hardball and will do everything possible to limit the amount they pay out to claimants.
While an experienced car accident attorney can often help improve your chances at a favorable insurance settlement, some claims just don’t end as they should. An insurance company simply may not be willing (or able due to policy limits) to offer what an injured accident victim truly deserves. In these situations, it’s usually time to escalate the matter and file a personal injury claim in civil court.
A personal injury lawsuit is a judicial proceeding just like any type of contract claim, divorce, or another type of lawsuit. Once you file a claim in court, the game changes significantly. There are strict rules and procedures that don’t apply to the insurance process, and complying with all requirements is essential for the success of your claim. In fact, failing to properly handle a judicial proceeding can jeopardize your case and your rights altogether. For this reason, you want the RIGHT lawyer for your personal injury proceedings.
Choosing an attorney for an insurance claim is one thing, but heading to court is quite another. You want a lawyer on your side who has experience with lawsuits and who can represent you from the initial judicial filing to the resolution of your case.
Filing the Car Accident Lawsuit
Lawsuits seeking compensation for car accident injuries are civil lawsuits, also known as personal injury or tort cases. Civil lawsuits generally follow a similar path toward a conclusion, as they all start with the filing of a complaint with the local civil court. For example, if your accident happened in Houston, your complaint would get filed in the Harris County District Court. Your attorney should know the proper court where you should file your case, which is an important detail.
Many states limit the time in which you can file a lawsuit, and your lawyer should be able to tell you how long you have in your situation and make sure they file your claim before the statute of limitations expires. For instance, if your state requires you to file within two years of the date of the injury, as Texas does, then you have two years from the date of the car accident or when you discovered your injuries for your attorney to file the case.
Your complaint will need to include all the allegations that you’re making, which usually include that the defendant was negligent and should be liable for your injuries. It will also state what relief you’re seeking, which in a car accident case, is monetary compensation for your losses. You want a lawyer who can prepare a persuasive complaint, which can help your position from the start.
The other driver and their insurance company, which is most likely paying for their defense against your claim, has a specific amount of time to respond to your petition. The response may include an answer, in which the defendant admits or denies each of the allegations. It may also include counterclaims, which allege that you also contributed to the car accident and are responsible for your own losses. It may include cross-claims, which will try to blame the crash on another defendant if there is one. After the defendant files their response, your lawyer will have a set time period to respond again.
Drafting and Filing Preliminary Motions
There a number of motions the defendant can file that may affect your case, including:
- Motion to dismiss, which does not necessarily dispute the facts of the case but may argue the suit was brought in an untimely manner or that no relief is warranted
- Motion for removal, which will move your case from state court to federal court (the motion needs to show that the case either involves federal law or that the defendant is from a different state)
- Motion for change of venue, which, if successful, will move your case to a different courthouse
- Motion for a change of judge, which will get your case moved to a new courtroom
With all but the motion to dismiss, the case will still continue even if the court grants the motion. If other motions are granted, your lawyer may have to adjust their legal strategy accordingly.
If you survive the motion to dismiss, the judge will then set a future date for a trial. Personal injury cases are usually scheduled around other types of civil cases, so you shouldn’t be surprised if your trial date is further in the future than you would’ve imagined.
The judge may also decide to order you and the defendant into mediation. In mediation, you and your car accident attorney will meet with the defendant and their attorneys for sessions moderated by a neutral third-party mediator. The mediator guides your conversation and tries to bring about cooperation and agreement between you. If you reach a favorable agreement, you can solidify it in a mediation agreement, which is a legally binding contract, and the litigation won’t proceed from there.
If mediation is unsuccessful, your case will then move to the discovery phase. Discovery is the period when lawyers from each side investigate the facts and obtain additional evidence. It may involve interviewing witnesses and examining documents, among many other things. Both sides must share with the other all information gathered during discovery and must act in accordance with strict and complex rules of civil procedure that govern discovery.
Your car accident lawyer may want to interview drivers, witnesses, and any other people who might have information important to the case. Often, these interviews take place in a proceeding called a deposition. Attorneys from both sides should be present at the depositions and can ask questions. The people being deposed are under oath, just as they would be on the witness stand in court, and a court reporter takes down their responses. Your lawyer can use deposition transcripts to build your case and in court.
If your lawyer thinks the defendant has documents or information relating to the car crash that can help your case, they may ask for the defendant to produce the documents or information as part of discovery.
Both depositions and documents produced during discovery are evidence that your attorney can use at your trial. They can also use any information or evidence they obtained to gain a bigger advantage during settlement negotiations.
Many attorneys for defendants will try to wear down a car accident victim during discovery. They may try to request copious amounts of information or may dump a mountain of documents on a plaintiff in response to a discovery request. You want a lawyer who can handle these challenges and identify the information that is important and that can help your case without getting bogged down.
If you and your car accident attorney think that the evidence gathered during discovery supports your claims for compensation from the other driver, your lawyer may file a motion for summary judgment. Such a motion requests that the judge decides the outcome of the case without hearings or a trial. Your attorney should support the motion with accompanying evidence and applicable legal theories. If the judge grants the motion, there will be no dispute over the facts alleged in the case. A denial of the motion means the judge believes a trial is needed to resolve disputed facts.
If your case continues ay this stage, your lawyer will be engaging in trial preparation, but they will also be negotiating with the other side. Trials are costly in many ways—money, time, and energy—and often, parties want to avoid a trial. If you have skilled negotiator handling your claim, they may be able to reach an agreement with the defendant and the insurance company that is sufficient to cover your losses. If you get a settlement agreement, your case ends and you don’t have to go to trial. The large majority of car accident claims reach a resolution at this stage of the litigation process, and only a small percentage go to trial. A car accident settlement can be confidential, but a trial record and result is not.
If Your Case Goes to Trial
Even though not many car accident lawsuits reach the trial stage, there is always a chance that your case will make it into the courtroom. You want to make sure your attorney has extensive courtroom experience in case this happens.
There are two kinds of trials—a bench trial in front of a judge or a jury trial. In a bench trial, the judge rules on all factual and legal issues in the case. A jury trial means that a jury of your peers will decide on the facts of what happened and the judge will apply the law to those facts.
Trials are strictly regulated by the rules of evidence and civil procedure. Your lawyer should not only be familiar with all of the rules, but should also be confident when presenting your case in compliance with those rules. A strong trial attorney should be quick, charismatic, and persuasive, and should present your case and your losses in a manner that wins over the jury. The jury will be deciding not only who prevails in the case but also how much you should receive as your personal injury award.
Finding the Right Litigator for Your Case
You should consider the possibility of litigation during your initial search for a lawyer. Should your case proceed to the courts, you want a lawyer who knows the details of your claim and who has the ability to stand up and represent you during litigation, in settlement negotiations, and at trial when needed. The following are some qualities to look for when hiring your lawyer:
- Experience – Does the lawyer litigate many cases? Do they hesitate to file a lawsuit when it’s necessary for a client’s interests?
- Connections – Does the attorney regularly work in this particular jurisdiction? Courts are all different, and it often helps to know people in the court and understand their preferences.
- Reputation – When a lawyer has a reputation as a strong trial attorney, the other party may be more willing to agree to a favorable settlement before the trial stage. A reputation can go a long way during the lawsuit process, as the other side’s lawyers will know you mean business.
- Resources – Litigation can be costly, even if you don’t go to trial. You want a lawyer who has the resources to cover the costs of litigation for you, so you don’t have to come up with the funds to continue your case. You can then reimburse your attorney for the costs out of your settlement.
Contact Experienced Car Accident Litigators for Assistance
Look for a team of car accident attorneys with the experience, connections, reputation, and resources to go to bat for you in judicial proceedings—someone who isn’t afraid to use trial skills as leverage, so opposing lawyers know they won’t back down.
Since starting his firm in 1999, Stewart J. Guss has had the honor of representing clients from all over the world, helping them recover from even the most catastrophic injuries.
Today, thanks to a strong belief in those values of compassion, respect, and approachability, the firm has grown to employ over 120 legal professionals in numerous offices across 4 states, with nationwide reach.