Part V: How a Case Proceeds Through the Justice System

Before Filing a Lawsuit

The first step in a claim that will wend its way through the legal system is, of course, an injury or the death of one or more persons due to the fault of another person or persons. Part VI of this book discusses some of the more common causes of personal injury and wrongful death, while Part VII addresses some of the more common injuries encountered.

If your claim involves a public entity (a governmental agency), be it a city, county, the State of California, or the United States, you must act quickly. Claims must be made with the appropriate governmental agency within a certain time limit, usually six months (although, in some cases, it can be considerably less).

The first focus of a claim is ensuring that the injured victim has received or is receiving the proper medical care. An experienced personal injury law firm usually knows which doctors are considered the “tops” in their field and they can refer you to those doctors as appropriate.

As soon as you have retained (formally hired) the law firm or attorney, they will begin an immediate investigation into the cause(s) of the accident. In an automobile accident case, an investigation may include:

  • Sending an investigator to the scene of the accident to take pictures of the accident site at approximately the same time of day as the accident occurred
  • Taking pictures of the cars before they are repaired to show where and how badly the vehicles were damaged
  • Finding witnesses and taking their statements
  • Directing you to a good doctor to evaluate how badly injured you are, the type of treatment you will need in the future, etc.

Depending upon the type of accident that you were injured in and the severity of your injuries, various experts may be retained to discover the cause of the accident or to prove the extent and permanence of your injuries. This may involve hiring an accident reconstruction expert, medical doctors, experts in product design and manufacture, psychotherapists, economists, accountants, pain management specialists, etc.

After the initial investigation has been performed, the lawyer will contact the insurance company’s adjuster and begin preliminary settlement talks. Insurance company adjusters keep their jobs by settling cases for as little as possible, so it is typical for the insurance adjuster to blame part or all of the accident on you or argue that you are exaggerating your injuries.

As your injuries begin to heal (or if you have suffered paralysis, an amputation, and/or a traumatic brain injury), your attorney will start to calculate the value of your case. As we discussed in Part IV, Working with Your Attorney, your attorney will put a monetary value on your case based on a number of factors. The other driver’s insurance company should promptly pay the policy limits if your injuries and resulting disability run into the millions of dollars but all the person who hit you has is an insurance policy for $100,000 and there is no question that the other driver was at fault for the accident.

When the insurance policy is sufficient to pay the damages How a Case Proceeds Through the Justice System or your injuries and lost wages clearly exceed the amount of the policy limits, your lawyer may send a “demand letter” demanding that the insurance company pay the full amount to settle the case and avoid an expensive trial that it is likely to lose. On the insurance company’s part, the insurance adjuster may send your lawyer a letter offering to settle the case for a certain amount that is considerably less than the insurance limits. If the two figures are in the same ballpark, further settlement negotiations with the insurance company or their lawyer may prove fruitful. If, however, the two sides have drastically different views on the value of the case, then it will be necessary to resort to the legal system. Over 95 percent of all personal injury and wrongful death cases settle without going to trial—sometimes on the courthouse steps the day the trial is to begin. Also, many cases are settled at mediation or arbitration.