How to pursue a personal injury lawsuit

Answers to your frequently asked questions about personal injury lawsuits

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Editor’s Note: FairShake is not an attorney, law firm, or financial advisor. Our content team conducts research to the best of our ability to ensure this content is accurate, but it does not replace professional financial or legal advice.

Struggling with an injury? Looking to file a personal injury claim? If so, you probably have lots of questions. Thankfully, we have lots of answers. 

Personal injury claims can be used to settle a variety of injury-related situations like workplace injuries, medical malpractice issues, or car accidents. However, what you need to know will differ depending on your state and situation. 

How do I file a personal injury claim?

First, seek medical care if you are injured. This is one of the most important steps, and yet it is often overlooked.

For example, just because you can walk away from a car accident doesn’t mean you didn’t sustain injuries like whiplash. Some injuries can manifest in a few days or even months, especially when your body is full of adrenaline, masking any pain you might feel.

Failure to seek medical care immediately after an accident or injury will make it very difficult for you to pursue compensation later on because you have no documentation to prove you sustained injuries as a direct result of the accident in question.

Second, contact an attorney. In addition to getting medical care, you want to contact an attorney as soon as possible. Why? 

An attorney can help you determine the information you need to gather. Attorneys can help you gather evidence, file and send your initial demand, work through negotiations on your behalf, and represent you in court if necessary.

They can also take over the communication between you and any of the parties involved, especially doctors, insurance providers, and other attorneys. If you are struggling to heal from an injury, the last thing you need to do is try to file paperwork in a timely fashion or follow up with multiple phone calls. Let an attorney do that for you.

Third, file the appropriate paperwork and submit your demand. Again, this is something with which an attorney can help. To whom you send your demand letter, what you ask for in compensation, and what evidence you provide to corroborate your claim will vary based on the state and the type of personal injury claim.

Who should I sue for my injury?

In any personal injury situation, in order for you to get compensation, you have to sue someone for your injury. But who do you sue?

In these cases, you want to sue the negligent party. This means the person who was responsible for the situation that led to your injury.

  1. In the event of a car accident, you would sue the driver who was at fault. You might submit a claim to their insurance provider first.
  2. For a workplace injury, you would sue the employer who was responsible for the negligent workplace situation that led to your injury.
  3. If you were attacked by a vicious dog or sustained an injury at someone’s house, you would sue the owner.

When multiple parties overlap, it might be difficult to determine exactly who you should sue. For example, if you are involved in a car accident, you might want to sue the driver responsible for texting while driving and running a red light, but if that driver was driving a company car while on company business, you might instead sue the business owner or file a claim with their insurance provider.

Given the complications associated with many personal injury situations, you should consider speaking with an attorney to make sure you are suing the right person.

How much in damages can I claim in a personal injury lawsuit?

How much you can get in a claim depends entirely on your situation. Compensation for personal injury includes things like:

  1. Medical bills
  2. Loss of income
  3. Loss of earning capacity
  4. Emotional distress
  5. Loss of championship
  6. Mental suffering
  7. Loss of enjoyment of life

However, you might not have grounds to claim all of these. For example, if you are in a car accident that results in a broken arm, you might qualify for medical expense compensation and compensation for any lost income while you were unable to fulfill the requirements for your job as a construction worker or pianist. 

If you sustained a broken arm that resulted in an amputation, you could claim compensation for loss of earning capacity because one arm would make it impossible for you to continue your work as a construction worker or pianist as effectively, if at all.

In the event that your injuries were so severe, you not only had expensive medical bills and a loss of income, but you lost your family over the injury and required long-term care because of a traumatic brain injury in addition to the broken arm, then your compensation claim might be much higher. 

What is the difference between compensatory damages and punitive damages in a personal injury lawsuit?

In any personal injury claim, you can ask for two types of compensation:

  1. Compensatory
  2. Punitive

Compensatory is meant to cover any out-of-pocket costs associated with your injury. This can extend to lost income. Effectively, a judge wants to ensure that you are in the same monetary position you would have been in had the injury never occurred.

In some cases, punitive compensation might be awarded. Punitive damages are intended to punish the person at fault. Punitive damages might be awarded in the case of medical malpractice in an effort to encourage the physician not to be as negligent in the future and risk additional harm to their patients.

Both damages have monetary limits based on the state in which you filed your personal injury lawsuit. 

While data on average rewards are limited, according to the US Bureau of Justice Statistics the average winnings for tort cases—which include personal injury—in 2005 was $31,000, the average compensation awarded for car accidents was $16,000; $90,000 for worksite injuries; and over $600,000 for medical malpractice cases. (These numbers cover cases that went to trial, but not those settled before trial).

How do I file for pain and suffering for an injury?

If you are ready to file for pain and suffering from an injury, make sure that you seek medical care where appropriate. Even if you feel fine after a work site injury or a slip and fall accident, you should still visit the doctor immediately to have a record of any injury development over the next few months.

After that, you want to contact an attorney. An attorney can help you file your claim with the appropriate party and try to negotiate for a settlement before your case goes to trial. Attorneys work with you to file claims for compensation first. This usually takes the form of a demand letter sent to the responsible party or their insurance provider.

For example:
If you are suing a company for worksite injuries or slip and fall accidents as a consumer, your attorney will work with the insurance provider for that company. Similarly, if you’re involved in a car accident, your attorney will reach out to the insurance provider for the other driver. In the event that no insurance exists, then your attorney will reach out to the negligent party directly.

If a settlement can’t be reached, then your attorney will file a lawsuit in court and sue the other party or parties. Should a settlement still be unreachable, the case will move forward to trial.

Note: There is a statute of limitations on all personal injury cases. This timeline governs how long you have to file your claim after an injury or accident. This depends on the type of claim you are filing and where you are filing. If you miss your timeline, you cannot file a claim or receive compensation. Working with an attorney can help you avoid missing any deadlines. 

An attorney can help you collect and maintain evidence of any losses due to the injury or damage that occurred. The more evidence you can gather, the stronger your case will be, and the more likely you will reach a favorable settlement.

How do you calculate emotional damages for a personal injury?

In order to recover damages for emotional or mental distress, you have to prove that you suffered emotional damages now or are certain to have it in the future, and you have to prove that the emotional damages you suffered or will suffer are a direct result of the injury or damage sustained.

Pain and suffering or emotional compensation are usually between two and five times the total cost of all of your lost wages and medical bills. This means you need to have a clear idea of your medical costs, including things like medications and ongoing therapy, as well as lost wages from missed work.

However, it is much harder to prove emotional damage compared to proving medical expenses or lost wages. And the rules around it also vary by state. Your ability to successfully calculate and receive compensation for emotional damages may increase with the help of an attorney.

How is settlement value calculated in a personal injury lawsuit?

Settlements for personal injury lawsuits are based on a variety of factors.

The easiest settlement to reach is based on proven costs. This can include medical bills for which you have an invoice, car repairs for which you have receipts or invoices, as well as lost wages that you can prove with previous pay stubs.

If, for example, your car was totaled in a car accident, the Blue Book value of your vehicle at the time it was in the car accident will generally be used to provide compensation.

The next category of settlement involves your injuries. Compensation for injuries is usually between one and five times the total cost of your medical bills where appropriate. In order to get a settlement for injuries, you have to prove that the injury was a direct result of the accident, usually done with medical examination notes. 

Compensation for injuries increases depending on the severity of the injury. Soft tissue damage will receive a much lower level of compensation in your final settlement compared to broken bones, paralysis, or traumatic brain injuries. Rules can also vary by state.

Your ability to claim and receive a settlement for damage you’ve suffered may be increased by consulting with an attorney.

How long does a personal injury lawsuit last?

This depends on many factors:

  • How strong your case is (what evidence you have),
  • What type of case it is,
  • Who has jurisdiction,
  • If the insurance or at-fault party is willing to settle,
  • If the case goes to trial.

The length of time it takes to reach a settlement can span between six months and two years. According to a study by the National Center for State Courts, the average personal injury case took 16 months to resolve.

This timeline increases if the other party won’t admit fault, their insurance refuses to provide compensation, or the case goes to trial.

Medical malpractice trials typically last six days. Product liability trials average seven days but claims like asbestos average 13 days.

Do I need a lawyer for my personal injury claim?

Whether or not you legally require a lawyer is based on many factors like the type of personal injury claim you have and the jurisdiction in which you filed the claim. In most cases, it’s not a legal requirement, especially if you are dealing with a slip-and-fall or car accident.

However, having a lawyer will often result in a stronger and more successful case. 

If you are unsatisfied with the coverage and service you are getting from the insurance claim you have filed following an accident that wasn’t your fault, an attorney can help you get more efficient compensation to cover things like medical expenses and damage to your car. If you live in a fault state, you might require an attorney to help you collect evidence and substantiate a claim for limited fault on your behalf.

There are many reasons why you might consider working with a lawyer for your personal injury claim, and all of them come down to the type of claim you have, how severe your injuries are, personal preference, cost, the willingness of the other parties to negotiate, and more. However, many attorneys will provide a free consultation during which you can gather legal advice on the matter.

What does a personal injury lawyer do in a lawsuit?

In a lawsuit, your personal injury lawyer starts by investigating your claim. Just because you were injured doesn’t mean you have grounds for a legal claim or compensation. You have to be able to prove that the other party was negligent and that negligence directly led to your injury or damages. An attorney will start by verifying you have evidence of negligence.

Once they have confirmed that you have legal grounds for a case, they’ll gather evidence on your behalf. This might involve procuring police or incident reports, following up with any Witnesses and getting official witness statements, having a photographer take pictures of the accident scene, finding camera footage that verifies property damage, and more. 

Once they have enough evidence to substantiate your claim, they’ll negotiate with insurance companies. This starts by sending demand letters for a settlement. If you are very lucky, an insurance company might look over the evidence, decide that you have enough legal grounds for a legitimate case, and offer a settlement.

Your attorney will negotiate on your behalf during the course of the settlement. You might receive an insufficient offer from an insurance company that doesn’t cover the full cost of your medical bills or other damages. In these cases, your attorney might go back and forth, communicating with the insurance company to negotiate for a higher settlement.

In the event that a settlement can’t be reached, your attorney will start preparing pleadings and conducting discovery. Discovery is where other people get deposed, so they get asked a list of questions pertaining to the case by your attorney. Witnesses and other experts might be interviewed in the same fashion. All of this is done to gather additional evidence to substantiate your case when you go to trial.

Assuming you cannot reach a settlement at any point during this process, your attorney will represent you at trial, arguing on your behalf in front of a judge.

How do I find a good lawyer for a personal injury lawsuit?

If you are ready to find a good lawyer, be advised that not all lawyers are created equal.

When talking to a personal injury lawyer, you’ll want to understand the payment structure or fee schedule. 

Many personal injury attorneys work on contingency, meaning they will take on your case and only get paid if you win. That payment comes from a portion of your settlement. They are charging you for their time and expertise, and may add additional expenses for tasks like postage, the cost of retrieving medical records, or copying documents. You want to ensure you know exactly what services are provided, what you will be expected to pay, and when. That will keep away any surprises you might get working with billboard or TV commercial types. 

In addition to costs, ask about their success rate for your type of case. Not all personal injury claims are the same. You want a good attorney who has handled your type of case before. For instance, if you are looking for a motorcycle accident lawyer, ask if they’ve had successful outcomes before in that type of case. Or if you are filing a case for an injury sustained at a place of business, you may not want an attorney who has never done that before.

Don’t be afraid to talk to multiple attorneys and figure out which one you like best. As you conduct your interviews and complete your initial consultations, get a sense of whether the attorney behaves professionally, answers your questions succinctly, and explains things in a way you understand. This is someone you will be working with anywhere between a few months and a few years, so it’s important that you get along on a personal level.

For more on how to choose a personal injury injury lawyer, check out this article from our friends at Mighty.com: Ask These 5 Questions Before Choosing a Personal Injury Lawyer

(Mighty has a business relationship with FairShake.)

How much do I have to pay for a personal injury lawsuit?

Most personal injury attorneys charge a contingency which means you agree to give them a percentage of your total settlement in the event that you get compensation. This also means that if the lawyer is unable to recover any compensation for you, meaning you lose the case, they don’t get paid either.

A lot of attorneys will charge between 33 and 40% of your total settlement. For example, if you have medical bills worth $5,000 and car repairs worth $3,000, and a loss of income totaling $6,000, a $14,000 settlement awarded to you won’t cover all of these costs because your attorney might take $4,000 of that.

Who should I sue in a car accident personal injury lawsuit? The driver? The insurance company? What about if it’s a rental car? Or a rideshare?

Figuring out how to sue after an accident can involve multiple steps. If you are in a car accident, you should:

  1. Start with the driver of the other vehicle. If they were driving a personal vehicle, this would likely be the party you sued. 
    1. If they were driving a company vehicle, acting in the capacity of a business, then you should sue the business. 
    2. You will want to sue the insurance provider for the driver or the company involved where applicable. 
    3. If they were driving a rental car, then you might sue the driver, the person who rented the car (if they are different from the driver), the rental car company, the insurance provider for the driver, and the insurance company associated with the policy of the rental car. 
    4. If they were driving a personal vehicle with personal insurance but operating a rideshare service, you might sue them or the rideshare provider, depending on the agreement signed by the company with the driver. 

What should I know about a personal injury lawsuit if I was injured on the job?

According to the US Bureau of Labor Statistics, three million non-fatal work-related injuries take place annually.

If you were injured on the job, you first need to report it to your employer. Almost all states have a statute of limitations within a few hours or a few days of the incident.

Once you have reported it to your employer, you can protect yourself by filing a worker’s compensation claim or a personal injury lawsuit. The laws surrounding workers’ compensation claims vary from state to state, similar to personal injury cases. 

You have to prove negligence with personal injury cases, but with worker’s compensation cases, you don’t. You don’t have to prove that your employer did something wrong in order to receive compensation, even if you were negligent on the job. 

However, if you file a personal injury lawsuit after being injured on the job, you are entitled to recover any and all damages suffered, including medical bills, future medical bills, pain and suffering, lost earning capacity, and punitive damages. By comparison with a worker’s compensation claim, you only get weekly compensation for your medical bills, impairment, and vocational rehabilitation.

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