In personal injury law, a claim is a set of facts that entitles you to personal injury compensation from a liable party. Alternatively, you could characterize a claim as an abstract legal right.
A lawsuit, by contrast, is a formal legal action that you might take to enforce a claim. Although all lawsuits are based on claims, most claims never become lawsuits. Instead, the parties try to reach an out-of-court settlement.
Settlement: The First Resort
Most personal injury victims prefer settlement to a lawsuit, at least after they speak with their attorney about their options. Most of the time, settlements are simply quicker and easier than lawsuits. They are often cheaper as well. Following is a description of some of the stages of a typical settlement process.
Preliminary Investigation
At this stage, you gather all evidence available to you that is relevant and that will help you prove your claim. That might include medical records, accident reports, interviews with witnesses, photographs, video evidence, documents establishing lost earnings, and more. This will help you establish your claim and negotiate a settlement with either the at-fault party or their insurance company.
Negotiation
The negotiation phase often amounts to a process of offer and counteroffer. Of course, if the opposing party is stubborn, they might refuse your claim outright. If there is one, a negotiated settlement will reflect what the parties think might happen if the case goes to court. If the defendant realistically fears that you will win big in court, for example, they will probably be willing to offer you a larger settlement.
The Settlement Agreement
If you reach a settlement, lawyers from both sides will probably be the ones to hammer out a settlement agreement. The settlement agreement will obligate the opposing party to pay the settlement amount, while the “release” will obligate you to permanently drop your claim against the defendant.
Litigation: The Last Resort
Litigation occurs when you resort to a court to resolve your claim. There are many reasons why you might abandon settlement in favor of a lawsuit:
- To show a stubborn opposing party that you mean business;
- To beat the statute of limitations deadline to file a lawsuit;
- To gain access to the pretrial discovery process; or
- To obtain punitive damages that the defendant would never agree to.
No matter what your reason for filing a lawsuit is, you can still settle your claim even after you file a lawsuit.
Filing the Complaint, Serving Process, and Paying the Filing Fee
You initiate a lawsuit by:
- Filing a formal Complaint with the appropriate court;
- Paying the filing fee; and
- Arranging for a neutral third party to personally deliver a court summons and a copy of the Complaint to the defendant.
At this point, the defendant has 30 days to file an Answer to contest your claim. Failure to do so means a default judgment in your favor.
Pretrial Discovery
Pretrial discovery is a court-supervised evidence-gathering process. It differs from a preliminary investigation in that you can demand evidence from the other side and seek court-imposed sanctions if they refuse to cooperate. The four main legal weapons involved in the discovery process are:
- Depositions (out-of-court, under-oath cross-examination of hostile witnesses);
- Interrogatories (written questions that the other side must answer under oath);
- Demands for production (examination of physical evidence); and
- Requests for admissions of the truth of certain statements (to simplify the trial).
Both sides have the right to collect evidence from each other.
Motions
Each side will file motions, which are requests for the court to do something. Popular motions include:
- Motion to Dismiss for Failure to State a Claim;
- Motion for Change of Venue;
- Motion to Compel Discovery;
- Motion to Suppress (evidence);
- Motion for Summary Judgment; and
- Motion to Strike (to erase certain information from the proceeding’s official transcripts).
Many other motions are possible.
Mediation
Mediation occurs when a neutral third party intervenes in a negotiation to facilitate a voluntary settlement. Judges typically push disputing parties to mediate because mediated settlements reduce the size of a court’s busy docket.
Trial
At trial, the parties:
- Select the jury in a competitive process known as voir dire;
- Give opening statements;
- Examine and cross-examine witnesses;
- Present physical and documentary evidence;
- Raise defenses; and
- Give closing statements.
Most trials are decided by a jury, but some are decided by the judge.
Appeal
If you lose your personal injury lawsuit, you have a limited amount of time after the judgment becomes final to file an appeal.
Combining Negotiation With Litigation: The Best of Both Worlds
Many injury victims combine negotiation with litigation. Typically, this means negotiating as far as possible and then filing a lawsuit. The next step is to gather evidence through the discovery process. If all goes well, the claimant will have accumulated enough strong evidence to pressure the defendant into agreeing to a generous settlement after discovery.
Contact a St. Louis Personal Injury Lawyer
It might not be obvious whether you should resort to a lawsuit to resolve your claim or whether pursuing a settlement would be a better option. A seasoned St. Louis personal injury lawyer will probably advise you to attempt settlement first but resort to a lawsuit if your settlement efforts fail. It all depends on the facts of your case, however. Most personal injury lawyers offer free initial consultations so you can receive legal advice and learn about your options. Contact us today at (314) 444-4444.
