We’ve guided our clients through hundreds of cases to successfully obtain personal injury settlements that will provide care after an injury or death. Because most of our clients are unfamiliar with the legal process, we are often asked, “When should I settle my personal injury claim?”
The process is long, taking up to two years, depending on the complexity of the lawsuit. But the good news is that most personal injury claims follow the same steps before a settlement agreement is reached or a trial is conducted. While this won’t be as entertaining as “I’m Just a Bill on Capitol Hill,” we hope it will clearly explain the process of settling a personal injury claim.
Every potential lawsuit starts with an investigation, by both your lawyer and the insurance company. After the facts are gathered, your lawyer will begin negotiating a settlement with the insurance company’s legal team. If a fair offer is not given, the next step is to file a lawsuit, which will begin discovery and depositions. At this point, often, a mediation will occur. Settlement negotiations will continue until an agreement is reached or trial begins.
Let’s go deeper into this process. To keep this simple, we’ve focused on auto accidents in which you file a claim against the other driver’s insurance company.
The first step is to open an investigation into the accident. Your lawyer will conduct this, obtaining the information himself or hiring an investigator. This process involves securing police reports, talking to witnesses, and obtaining medical reports.
At this point, communication or negotiation may (or may not) pass between your attorney and the insurance company. Some lawyers, when hired, will immediately send a letter to the insurance company. The company will then want to obtain as much information as possible about the plaintiff’s medical records, information about their injuries, and lost earnings. Their investigation can take months.
Settlement negotiations will begin at first contact with the insurance company. In our experience, the insurance company will initially offer an amount that’s not a fair settlement. They may not take your case seriously until you’ve shown that you’re willing to pursue a lawsuit. Until they are compelled to, they’re not going to pay what the case is worth.
This is especially true in complicated auto accidents with serious or catastrophic injuries. The insurance company is going to take the position that favors them, and you’ll often not get any traction on a fair settlement until you take the next step.
If the case cannot be settled just by dealing with the insurance company, or if the lawyer makes the decision that dealing with the insurance company will be a waste of time for various reasons, the next step is to file a lawsuit.
A lawsuit will include your complaint, who you are suing, whether you want a jury trial, a statement of facts, your legal basis for filing a lawsuit, and your lawyer’s information. After filing, your trial date will be set. This is usually one to two years from the date of filing.
Filing a lawsuit opens the case up to discovery, during which both sides exchange information, and depositions (people answer questions under oath, typically in the lawyer’s office). Depending on the case’s complexity, depositions can number anywhere from two to 20, or more.
A mediation may be called at some point when all of the involved parties sit down together. You, as the plaintiff, will need to attend. Also attending will be a mediator, insurance company representatives, and lawyers for both the plaintiff and defendant. The process usually takes a half or full day.
Your lawyer will help you choose the appropriate time to settle. If the goal is to maximize the value of your case, get as close to your trial date as possible before settling. You need to get to the point where you have demonstrated to the insurance company that you are not going away. You’re serious about this claim.
By the time you get past mediation, you’ve shown a willingness to really pursue your case to the end. You’ve hired a good lawyer, one with trial experience. A majority of cases—as high as 95%—will settle before trial, but if your case is part of the five percent of cases that do go to trial, you’ll need a lawyer who is willing to take the case to trial.
That’s a fairly small percentage of practicing lawyers. If you have a lawyer who is not willing to take the case to trial, then the insurance company has the ability to pressure that person to settle for less than what the case is worth because the attorney doesn’t have a viable alternative.
The only way the insurance company can be forced to pay the real value of the case is by going to trial. You don’t have the ability to force them to do anything during the process until they are at trial.
If the case settles or doesn't go to trial, the final step is to sign a settlement agreement, which includes details of the settlement payout, payments for medical liens, attorneys' fees, and any other costs associated with the case. The agreement is a legally binding contract.
Often, medical liens are attached, for which your health insurance company will claim refunds for money it expended on your care. Government benefits, like Medicare, will also need their claims resolved by the settlement agreement. Your lawyer will negotiate how much the health insurance company gets back.
Whatever the settlement amount is, some amount of that goes to attorney's fees, some to pay the out-of-pocket costs of pursuing the case, and some typically goes to pay the medical liens. When those three things are taken out, you want a substantial amount of money remaining for care and recovery.
Negotiating the liens can be a big deal, especially if it's a really serious injury because $100,000 or more in medical liens may have to be addressed.
In catastrophic injury or wrongful death cases in which the settlement is very high, we can set up annuities for people. Instead of getting all of the money in one lump sum, they get it over time.
We hope this helped answer your questions about personal injury settlements. If you aren't sure what type of lawyer you should hire to handle your claim, check out our free guide on how to find a personal injury lawyer.
If you have been injured due to negligence and are in need of a personal injury lawyer in Torrance or Los Angeles, please submit a free personal injury case evaluation.