What to expect before litigation in a personal injury case
For those at the beginning of a personal injury case, this very brief overview will provide a high-level guide to what you can expect in the near future as your case develops, and prior to any formal litigation. Of course, not every case will fit the timeline I will describe here, and my practice and experience are based on procedures typical of Colorado. But understanding this broad overview of some of the most common pre-litigation steps can be helpful even for those whose cases may proceed differently.
Step One for You: Get Better
Although your personal injury attorney (you do have help, don’t you?) will be busily communicating with the insurance company and assembling evidence that will be needed to pursue your case, you will be focused almost exclusively on simply getting better. This is your opportunity to do all you reasonably can do to try to have your best recovery. Everyone’s goal is for you to get back to your pre-injury state if that is possible. Often that means pursuing treatment as recommended by healthcare professionals, sometimes with more than one provider or specialist, until your condition improves and stabilizes.
Wait – Why not just take a payment right away?
At some point in your case, you and your medical providers will conclude that your condition has stabilized and/or you have improved as much as you’re likely to improve. Usually that is when your attorney is going to start really negotiating with the insurance companies. The timing here can depend on a lot of variables. As with anything there is no substitute for talking to a personal injury lawyer about your specific facts. However, for most people, it makes sense to monitor your treatment until your condition has stabilized because before that point it is much harder to estimate the total costs of needed care. Insurance companies are happy to try to settle a case with you as soon as possible after your injury. It benefits them to do that because you really have no way to know what treatment you will need and how much it will cost. Remember – you only get one shot at getting this right. Forever. Once you accept a settlement, it has to cover all the treatment you need in the future. This is one reason it usually makes sense to negotiate after you have a better idea of what the total treatment costs have been, and are likely to be in the future.
But that’s not all.
There are other reasons to allow your body time to heal. The damages you are entitled to recover for are not limited to medical bills. There will be life impact as well. Our court system and most state and federal laws allow only one way to make something right – or hold wrongdoers accountable – and that is payment to the victim. There is no other option to make someone whole. Either the wrongdoer pays, or the wrongdoer gets away with it. For most personal injury cases, the options are truly that stark. If you are injured and seeking fair compensation for what happened to you, settling before you know what your true damages are will only ever help the insurance company who promised to pay for losses like yours. They promised to pay. You did nothing wrong. Every dollar short of full compensation is their gain at your expense. So allow the process its time. Be thorough. Know what your losses are before you attempt to put a value on them, and that usually (there are always exceptions) means living with your injuries for a while.
Hey insurance! Here’s your chance to do the right thing.
Sometimes it makes sense to proceed with formal litigation as early as possible in a case. In most of my Colorado personal injury cases, it makes more sense to give the insurance companies involved an opportunity to do the right thing. That means giving them an opportunity to fully compensate you without having to be sued. People pay insurance companies so that when they make a mistake, the insurance company pays for it for them. That’s why everyone pays premiums. Sometimes insurance companies like to gamble with their insured’s future. That means insurance companies will often refuse to pay the full value of a case, even if that exposes the insured – the one who caused the injury – to personal liability.
When negotiations begin between those who are fighting to right a wrong, and the insurance companies who are fighting to pay as little as possible, it is the responsibility of the insurance company to do the right thing. The injured person just wants to be compensated for a life-changing disruption they never asked for. The insurance company knowingly promised to do that when they sold their policy. In those cases where they do pay full value without the need for a formal lawsuit, the injured person gets compensated without having to deal with the expense, uncertainty, delay, and often the indignity of going to trial on top of having their life changed by an injury.
And if they don’t?
If the insurance company breaks their promise, refuses to fully compensate damages, and thereby exposes their insured to personal liability above and beyond coverage, it may be time to file a lawsuit. This is always a decision made with plenty of education and discussion between client and attorney. A good personal injury lawyer will always take the time to fully explain the risks and benefits of proceeding with a formal lawsuit before that decision is finalized. However, in many cases, this is exactly what injured people have to do to get a fair outcome.
Courts empower regular people (juries) to value human losses. Without that option, everyone would just have to hope insurance companies would pay fair compensation. That’s right, without the option to sue, the value of a loss would be decided entirely by the corporations paying the loss. You can see how that would be bad.
It makes sense for juries to decide the value of human loss. Having relatively unbiased/disinterested third parties decide these things feels much better than leaving it up to the one who has to pay. This is our opportunity to put you and your life and your facts in front of our neighbors and show them why your loss matters. Just having that option brings both power and hope to everyone who finds themselves hoping that an insurance company will keep its promise and fully compensate the loss. Justice for one through jury trial can bring justice for many. This is why we all owe a debt to those who have endured all the trial preparation and the uncertainty before us, and to those who saw the value of empowering citizens to hold wrongdoers accountable.