You’ve just been involved in an automobile accident. You’re hurt. Your car is damaged. You need help paying for the losses that weren’t your fault. So how do you get what you deserve? You file a personal injury claim, and the following steps will show you how to do it.
1. Get medical care right away
If you or someone involved in the accident has suffered an injury, get medical treatment immediately. Depending on the severity of the injuries, this could involve getting an ambulance to the scene, going to the emergency room, an urgent care clinic, or simply seeing your doctor. Don’t underestimate the extent of your injuries, as a mild ache could worsen as days, months, or even years go by. Or, you could have a knee in a lot of pain, distracting you from dull back pain that could signify something more serious. Seeing a doctor who will document your injuries helps show an insurance company or jury your pain was caused by the accident and isn’t from something else. Your eventual claim must be supported by verified medical records documenting the injury and not just your words. If your injuries are well-documented, it’s more likely that the other side will agree you were injured and pay you a fair settlement without going to trial.
2. Take photos or get other evidence at the scene
It’s tough to get your bearings after being involved in a crash but taking photos of the accident scene and the vehicles involved from multiple angles will help your case later. Please don’t rely on the police to do it because sometimes they don’t. Don’t be shy; get out your cell phone and start clicking away—and take pictures of your injuries, if you can. Take photos of anything that might help someone else who didn’t see the accident in person understand exactly what happened. Also, look for witnesses who saw the accident first-hand—not people in your vehicle—but people who are objective and have nothing to gain financially. They could be in a local business, another driver driving by, a pedestrian, etc. get their contact info as it will help you (or any attorney you may want to bring in) later in the investigation. Finally, make sure you get the driver’s exchange of information from the investigating police officer. This will have important information regarding the at-fault driver and their insurance. It should also have witnesses listed. This information will help you resolve your property damage claim more quickly and direct you to the responsible insurer.
3. Contact your insurance company
Let your auto insurance company know you’ve been in an accident as soon as possible. This will start the ball rolling on the claims process and allow you to take advantage of your Personal Injury Protection (PIP) benefits. These benefits will help pay for any medical bills and lost wages you may experience after the accident. Your insurance company can file an uninsured motorist claim if the other driver was uninsured or had less than adequate coverage. Your insurance company may want to take a statement from you about the accident. You should consider having a lawyer be with you for that statement to make sure the questions are fair and the insurance company doesn’t take advantage of you.
4. Gather evidence of your injuries
After receiving medical treatment and gathering as much information as possible about your condition, the full extent of your injuries, and your prognosis for recovery, gather your receipts together. These can be medical invoices or receipts, estimates for the damage to repair your vehicle, estimates for any lost wages if you were out of work due to the accident, etc. This documentation helps paint a picture for a lawyer or jury of how the accident has impacted your life and what you must do to get your life back to normal.
5. Consider a consultation with a personal injury attorney
Occasionally, if your accident was minor and you weren’t injured, you can pursue a small personal injury claim without legal representation, especially if you only required one trip to the doctor or hospital. However, suppose your accident was major, and the treatment for your injuries was involved or requires follow-up visits to the doctor. In that case, you probably want to consult a personal injury attorney. Why? If you do have severe or ongoing treatment or pain, you will incur many expenses, which can be difficult to recover if you’re representing yourself. An experienced personal injury attorney can produce a more significant award for you to cover these expenses. And best of all, it costs you nothing—absolutely nothing—to have a consultation with one. If they decide to represent you, they get paid when you get paid. Whether you go with a personal injury attorney or not, it’s still advisable to meet with one before filing your claim as there may be issues and timelines you may not be aware of—such as the statute of limitations (i.e., the amount of time you have to file a lawsuit, which varies according to state). By consulting with the attorney, you’ll be able to find out how complicated your claim will be and how much of a settlement is fair for your particular situation.
6. Consider hiring a personal injury attorney
If you have consulted with a personal injury attorney, you’ve probably already decided to have one represent you and file your claim. An advantage of going this route is that now you can focus solely on your health and mental well-being while your attorney takes care of your case and any possible litigation. They can also investigate and contact expert witnesses in medicine, reconstruction, engineering, etc., should your case require their testimony. Generally speaking, by hiring a personal injury attorney, you stand a better chance of securing a fair settlement, and your case may be settled before you go to court.
7. Establishing negligence
Establishing negligence is simply showing that there was failure on behalf of the other driver involved in the accident to exercise care when driving, caused you injury, and that you sustained damages. Maybe the other driver was texting, perhaps they were under the influence, possibly their visibility was impaired, maybe the road conditions were bad, or perhaps they weren’t paying attention. Whatever the case, you need to establish what they did or what ultimately led to the accident. It’s your responsibility to prove that the other party was at fault to receive compensation. This can be challenging if you’re representing yourself, but gather all your evidence (police reports, accident photos, witness statements, etc.) before filing a claim. Again, this is where a personal injury attorney can help you by handling this process.
8. Serve notice of claim
You will need to let the at-fault party involved in the accident, and their insurance company know that you intend to pursue a claim and maybe send them a demand letter. This letter outlines your case, details your injuries and medical bills, any lost wages accrued, the future cost of your medical care, liability and damages, and more. It’s called a demand letter because you’ll demand formal payment for the damages you’ve sustained. The letter should clearly state the facts and tell why you feel the other party is at fault and should be supported by the evidence you’ve collected since the accident. The intent of the letter is to settle the case quickly, easily, and without having to go to court. The at-fault party can either reject your demand, counteroffer or accept it. Let them know they should respond to the letter within 30 days of receiving it, or they could face legal action. Most demand letters are delivered via a professional process server, court official, or law enforcement officer.
9. Negotiate for a settlement
This is where you negotiate with the at-fault driver, their insurance company, or your own insurance company before or after filing a lawsuit. Most personal injury claims are settled at this point without ever having to go to court. During this step, there’s usually a bit of “back and forth” as you or your attorney try to reach a settlement that’s acceptable to both parties. If you settle and accept an offer, then the case is closed. If you don’t settle, your next step is to file a personal injury lawsuit to get your compensation.
10. Filing a personal injury lawsuit
If the at-fault party rejects your demand letter and neither party can agree on a settlement, you or your attorney must take them to court. Bear in mind that due to the statute of limitations, you only have a set amount of time (and what that is precisely depends on the state) to file the suit before you forever lose your opportunity to be compensated for the accident. A lawsuit begins when you file a formal complaint in the county where the accident occurred or where the at-fault party (known now as “the defendant”) resides. The defendant must respond within a designated amount of time and deny or admit the statements outlined in the complaint.
11. The discovery phase
Next is the discovery phase, whereby each side will investigate the other’s claims, obtain further evidence, determine which evidence will be presented at trial, and decide how to proceed with the case. Oral or written depositions or interviews may be included at this time. This process can take up to a year, but once you know all the evidence, you’ll have a better idea of preparing and arguing your case. Before the trial, you or your attorney will meet with the attorney for the other side for a pre-trial conference as ordered by the court. Below is a short, but not-necessarily comprehensive, list of the types of evidence you should include:
- Any photos/videos from the accident scene.
- Medical bills.
- Medical records.
- Lost wages from work or from time off spent while injured.
- Insurance claims/Repair bills and or estimates for damages.
- Police reports.
During the discovery phase, both parties are eligible to file motions to the court to dismiss, delay, or agree to a settlement regarding your case.
This is a meeting between you (known now as “the plaintiff”), the defendant, and a neutral party (the “mediator”). The mediator is trained to help people reach an agreement that satisfies both parties. Some mediators come from a legal background (they’re practicing or retired lawyers or judges), and these individuals can be found at businesses specializing in mediation services. Mediation is usually required before a case can go to trial. The cost is usually split between the plaintiff and the defendant. The mediation method is low-key and informal by design; this allows both parties to have their say without the constraints of more formal legal procedures. The mediator doesn’t make a judgment or take sides. Also, nothing either party says during mediation can be used by the other party in the later stages of the dispute because the process is confidential. During the process, each party speaks to the mediator in the other party’s presence. Each party also gets to speak directly to the other party, with the mediator facilitating the interchange, and finally, each gets to speak alone to the mediator.
The mediator then uses the information gathered from the parties—without revealing what either party says in confidence—to persuade each side to alter their position sufficiently so both can reach an agreement. If the plaintiff and defendant don’t agree to a solution, they return to where they left off before the mediation process and moves toward trial.
13. The Trial Process
Only about one percent of cases ever go to trial but when a case does go to trial, a judge or jury decides the outcome based on the evidence presented by the plaintiff and defendant. In a “bench trial” the judge will listen to all the evidence and determine the verdict. In a jury trial, the jury hears all the evidence and determines the verdict.
In either case, the “fact finder” will hear from witnesses who may testify in court about the accident, your medical providers will testify about your injuries, and family members and expert witnesses may be called. .
The goal is to get the compensation you deserve for your injuries, your lost wages or ability to work, and for your pain and suffering. If a case settles before trial, that means you’ve accepted an offer that represents the fair value of your losses in light of all the evidence likely to be presented in your case. That settlement has to pay attorneys fees and costs, any outstanding liens or medical bills, and it has to pay you. If a case goes to a verdict at trial the verdict must cover those same things.
The bottom line
Now you know the steps involved in filing a personal injury claim. Only a tiny percentage of cases go to trial—most cases are settled beforehand. As we’ve discussed above, you can represent yourself, but if you want the best compensation, it’s better to have legal representation from a seasoned personal injury attorney.