In nearly every movie or television portrayal of a legal matter, there is a courtroom scene in which the parties involved in the dispute each have the opportunity to make an eloquent speech in court. However dramatic these courtroom scenes are for the camera, they have little bearing on the reality of car accident lawsuits in which very few cases even see the inside of a courtroom. Here is why most car accident cases, handled by a car accident lawyer, do not go to court.
The Personal Injury Claims Process After a Car Accident
When a person is injured in an accident caused by someone else’s carelessness or recklessness, they can seek compensation through the personal injury claims process. In no-fault states, the injured party will often seek compensation by filing a claim against their personal injury protection policy.
In contrast, in tort states, they can simply begin the process with a claim against the at-fault party’s auto liability policy. The at-fault party’s insurance also comes into play in no-fault states after they have maxed out the limits of their personal injury protection or if they have incurred an injury that meets the serious injury threshold for their state.
For example, in New York, the serious injury threshold includes injuries that result in death, dismemberment, significant disfigurement, a bone fracture, loss of a fetus, permanent loss or limitation of function of a bodily system or organ, or an injury that prevents the person from performing substantially all tasks involved in their usual daily activities for at least 90 days out of the 180 days following the accident.
When a claim is filed against the at-fault party’s insurance policy, the insurance provider who services this policy will assign a claims adjuster to evaluate the claim. The claims adjuster’s role is to protect the insurance company’s bottom line by preventing them from paying out more than necessary for claims made against the policies of their insured.
Their evaluation of the claim is three-fold:
- First, they will evaluate the coverage available through their insured’s policy to determine whether the damages listed in the claim are included in that coverage.
- They will then look at the facts of the case to determine whether their insured was liable for causing the accident that injured the claimant.
- Finally, they will look at the claim’s value and the documentation provided to prove the injuries sustained to determine how much compensation is owed to the claimant.
After the claims adjuster has evaluated the claim, they can accept or deny it. They can also offer the claimant an out-of-court settlement for less than the established value of the claim. Usually, these initial offers are far below the claim’s value, and the claimant’s attorney will be tasked with negotiating with the insurance provider to get them to increase the offer to a level the claimant will accept.
When the claimant agrees to a settlement offer, an official settlement agreement will be created that spells out the details of the compensation to be provided. Along with this agreement, the claimant will also be asked to sign a document releasing the insurance provider and the at-fault party from further attempts to obtain compensation for the expenses and impacts of their injury.
If the insurance provider fails to engage the claimant in a settlement agreement, the claim can be filed as a personal injury lawsuit in civil court within the statute of limitations for personal injury claims in the state where the accident occurred. The statute of limitations sets the maximum time that parties in a legal dispute have to initiate legal proceedings.
This time limit begins when the injury happens, and most states have a statute of limitations of one to five years from that date. Failing to file a lawsuit within this prescribed time will usually result in losing the claimant’s right to use the court process when seeking compensation for their injuries. It will also usually result in the insurance company refusing to settle the claim, as they no longer must resolve expired claims.
If the parties don’t settle when a judge or jury has heard the case and rendered a verdict, the court’s determination of liability and the amount of compensation owed will stand. However, while neither party can appeal a settlement, either party can appeal a court’s decision.
Why Claims are Usually Settled Out of Court?
Black’s Law Dictionary says 95 percent of personal injury lawsuits resolve through a pre-trial settlement. This means that only one out of every 20 personal injury claims will be decided by a judge or jury, while the rest will be resolved through settlement agreements.
Both claimants and defendants prefer the settlement process, because of:
- The expenses involved in litigation. Taking someone to court or answering a legal claim in court is expensive. Some of the costs involved include a complaint filing fee for filing the lawsuit, the costs of filing or responding to motions, the costs of obtaining a venue to depose witnesses, the costs of copies, the provision of expert witnesses, and costs associated with appealing the court’s verdict. These costs are generally not included in the attorney’s contingent fee, meaning that these costs will be deducted separately from your settlement amount.
- The outcome of litigation is uncertain. Many insurance providers prefer to resolve claims through a settlement as this allows them to have some control over how the claim is resolved, as opposed to placing it in the hands of the court and hoping for the best. This is true for the claimant, the at-fault party, and their insurance provider.
- A personal injury trial can generate bad publicity. This is often a deterrent for high-profile defendants and their insurance companies, as a trial is open to the public. Settlements are generally private, and the at-fault party and their insurer can include provisions in the settlement agreement that prevent disclosure of the settlement amount.
- Personal injury trials take time. While settlement agreements can be put into place in a matter of months once the claimant’s physical condition has stabilized, the amount of time that will pass before a trial takes place is usually at the court’s mercy and its schedule. Many claimants prefer the settlement process, as they’ve already waited weeks and months for their condition to stabilize and settlement negotiations to occur. They don’t wish to wait even longer to receive compensation.
Even When a Personal Injury Lawsuit is Filed, the Claim is Still More Likely to Settle
It is important to understand that filing a car accident injury lawsuit does not mean the end of the settlement process. Settlement offers can be received at any time between the accident and the court’s verdict.
Often, a claims adjuster will be reluctant to negotiate a settlement until a lawsuit is filed. At that point, negotiations begin in earnest to avoid the inevitable costs and efforts that will ensue through the pre-trial phases of the case.
Once the lawsuit is filed, the case enters the discovery phase. As the American Bar Association explains, discovery is the formal process of exchanging information between the parties about witnesses and evidence. This allows each side to be aware and prepared for the evidence and testimony the other side plans to introduce in court.
One common type of discovery is witness depositions. This involves a sworn, out-of-court testimony of any person involved in the case that can be used at trial or in preparation for trial. Generally, depositions involve an oral examination of the witness by one party’s attorney and the cross-examination of the witness by the other party’s attorney.
Other types of discovery include the solicitation of interrogatories, which are questions from one side of the dispute that is answered in writing by the other party. A claimant’s attorney can also file motions to compel the other side to produce material evidence, and the at-fault party’s insurer can even request that the claimant submits to an independent medical evaluation by a doctor of the insurance company’s choosing if there is a dispute about the severity of the injuries that were suffered.
While your attorney completes the important work of preparing your case for trial, they are often still working on a negotiated settlement with the at-fault party. Often, the information that comes to light during discovery will catalyze a settlement offer. The insurance company decided resolving the claim out of court is safer and less expensive than rolling the dice on a judge or jury deciding in their favor.
Even Though Settlements are the Likely Outcome, an Attorney’s Courtroom Experience Is Essential
While most car accident claims are settled out of court, it is impossible to predict which cases will settle and which will require litigation to be resolved.
Some factors that can make litigation more likely include:
- A case with an extremely high value due to permanent injuries lost earning capacity and estimated future medical expenses.
- In a case where liability is uncertain, the insurance provider and their attorneys feel confident that they can sway the judge or jury into determining that the claimant or another party was at fault.
An experienced car accident lawyer can greatly improve the prospects of your claim. People who attempt to obtain compensation for their injuries on their own often fall victim to an insurance company’s tactics long before they even have the chance to file a lawsuit.
Some of the tactics insurance companies use to devalue claims include convincing the claimant to accept a quick and low settlement offer under the guise that it’s the maximum amount of compensation available for the claim or getting the claimant to admit to liability or provide a recorded statement that can then be used against them.
Accepting this low settlement offer will bar the claimant from seeking further compensation, even if they later discover that the settlement did not provide enough money to cover their expenses. Admitting liability or providing a recorded statement will most certainly serve to lower any offer the claims adjuster makes for the claim.
Even if an individual can get far enough into the claims process on their own to file a lawsuit, they can expect to immediately slip into a discovery process without knowledge about the court’s formalities, filing and responding to motions, the type of evidence they can request from the at-fault party, and the process of formally requesting that evidence.
While all personal injury lawyers have education and experience with the law, it is important that they also have experience with litigation. Contrary to Hollywood’s representation of attorneys and their duties, many personal injury lawyers do not have experience with litigation.
Why? Because they work for law firms that tend to only take cases they know they can settle. The problem with this theory is that if the claim does not settle as expected, the attorney, along with their client, will be experiencing court for perhaps the first time.
Contact An experienced personal injury lawyer in New York will have experience negotiating the best settlement possible for their client and fighting for their client’s right to the most compensation available for their claim. Hiring an experienced litigator doesn’t mean the case will automatically go to court. As the statistics listed above indicate, the odds remain firmly in favor of the claim resolving by settlement. However, the trial experience will be crucial if the claim is one of the 5 percent that the verdict of a judge or jury resolves.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.