Your lawyer has worked hard to establish and prove liability and damages, send a demand letter to the defendant’s insurance company, and undergo negotiations with the insurance company to reach a settlement. A vast majority of personal injury claims are settled, but there are times when a settlement can’t be reached. When this happens, it’s time to file a lawsuit. While the following may seem like a lot to remember, know that you are not expected to do this alone—your personal injury lawyer will guide and represent you throughout the process to make sure every step is done correctly.
Who is the lawsuit filed against? First thing’s first: you have to file your lawsuit against the right party.
- For those filing lawsuits arising from a motor vehicle collision, the defendant will be the driver of the other vehicle involved in the collision. While the lawsuit will name the other driver as the defendant, the defendant’s auto insurance carrier will ultimately provide them with a lawyer, stand behind them, and assist them in paying owed damages.
- For those filing slip or trip and fall-related lawsuits, the defendant will be the person or company that owns the property. Similar to car accidents, their premises liability insurance carrier (if applicable) will step in on their behalf. If you had an accident on public property, such as a trip and fall on a poorly maintained sidewalk or in a public park, the defendant would be the town, city, or other governmental entity responsible for maintaining the property.
- In cases with corporate defendants, such as a grocery store chain, or a trucking company, the legal name of the company needs to be stated, completely and accurately in the lawsuit. Your lawyer will complete a business entity search to find the proper legal name of the defendant. Usually, the entity’s legal name is different than the name the public sees.
How much money should I sue the defendant for?
The amount named in the lawsuit is determined on a case-by-case basis after a clear picture of the extent of the damages emerges. Typically, personal injury lawyers sue for a larger amount of money than they expect a jury to award because the number you sue for is the maximum compensation you can receive. For example, let’s say your lawyer sues for damages totaling $50,000. If a jury comes back with a verdict of $75,000, you will be limited to the $50,000 named in the lawsuit, making you miss out on the remaining $25,000. However, if your lawyer sues for $100,000 instead, you will be entitled to the full $75,000 awarded by the jury.
Filing a lawsuit begins with the complaint.
To file a lawsuit, your personal injury attorney will prepare and file a complaint with the Court. The complaint is significant because it alleges all the elements necessary to support your legal claim, containing basic information such as the name of the parties involved, a summary of the facts of the incident, legal allegations, and a summary of the injuries suffered.
The defendant then has 21 days to file an answer that admits or denies the allegations made in the complaint and provides their version of events. Defendants will typically admit basic information, such as their name, location, and that they were driving the other vehicle, but deny allegations of negligence, breach of duty, and responsibility for damages.
What comes next?
Once the complaint is filed and responded to, it’s time to gather evidence in the lawsuit, gain an understanding of the defendant’s position, and develop strategies against the other party. This process is called discovery.
