Generally speaking, the more complicated the case and the more difficult it is to determine liability, the likelier a victim must take their case all the way through the court system to recover compensation. Determining liability often complicates car accident cases, and the severity of injuries accident victims suffer can make them costly to defendants.
Your attorney will try to negotiate with the insurance company or defendant for a settlement, but if the defendant or the insurance company refuses to pay a fair and reasonable amount, you might have to pursue justice in court.
Settlement or Litigation?
Ultimately, the decision to settle your car accident case or to leave settlement negotiations and move to litigation is up to the accident victim. There’s likely a figure a defendant will agree to; it just might not be as high as a victim would hope.
Most parties prefer to settle car accident cases because it costs less than going to court But sometimes, it makes no sense to settle. For example, if doctors expect your injuries to cause permanent disabilities and you will need additional surgeries, but the insurance company’s final offer is $50,000, that wouldn’t even begin to cover your medical expenses, never mind other damages that you might have incurred.
In some car accident cases, you might initiate a lawsuit, but your case settles after you file a lawsuit. Insurance companies prefer to settle since it also saves them money. If you file a lawsuit, the insurance company’s attorneys, whether in-house or retained attorneys, must now take the time to prepare for litigation, costing the insurance company for every hour they work on the case, which can rack up quickly. This will give the insurance company a greater incentive to settle, and they might bump up their offer.
How Does a Car Accident Case Settlement Work?
Initially, your attorney reviews your car accident case, including any accident report and your medical records related to the accident. If you have underlying conditions that could affect recovery time, you should also give those medical records to your attorney.
The attorney drafts a demand letter to send to the insurance company or the defendant if he or she does not have insurance. In most cases, the insurance company will respond with a counter-offer.
If you find the offer is sufficient, you can accept it. In most cases, the offer is too low, especially for those with injuries that cause long-term or permanent disabilities. You might submit a counter-offer to the insurance company, and they might submit a counter-offer to your counter-offer. This could go on for as long as you let it or until the insurance company gives you a take-it-or-leave-it offer.
Once you determine that the insurance company will not agree to a fair or reasonable offer, you can ask your attorney to file a lawsuit against the insurance company and/or the defendant.
In many cases, but not all, the insurance company will come to a fair and reasonable settlement. If not, your case continues through litigation.
What Is the Litigation?
Once you decide that the insurance company is not fair and reasonable, and you instruct your attorney to file a lawsuit, the attorney will file a complaint. Your attorney files the complaint with the clerk in the appropriate jurisdiction and the clerk issues a summons. Your attorney then hires a process server to serve the insurance company and any other defendants with the complaint and summons.
The defendant then has a set number of days, the number depending on the state you are in, to respond to your complaint. The time to respond is often 20 days. The defendant could file an answer and counterclaim, or could file a motion to dismiss your claim on technical grounds.
If the defendant files an answer, the discovery process starts. If the defendant files a motion to dismiss, it will need to be fully briefed, and the court may hold a hearing before ruling. If you succeed in staving off the motion to dismiss, the defendants will need to file an answer and you will proceed to discovery.
During discovery, you might have to answer interrogatories, respond to requests for production, and you could be deposed. Your attorney can ask the defendant for information in the same manner.
Once the time for discovery ends and the attorneys have all the evidence gathered, your attorney will start organizing the evidence and preparing a trial strategy. You will most likely take part in gathering evidence and will be instrumental in formulating the strategy.
Settling After Starting a Lawsuit
The defendant could decide to offer you a fair and reasonable settlement at any point during the preparation for litigation, from the time they receive the lawsuit, right up to hours before the trial. You do not have to accept any offers. If you and your attorney believe that you deserve more than what the insurance company offers, you can take the case all the way through the trial.
However, if you are offered a fair and reasonable settlement, and the defendant hasn’t given you a deadline by which to accept the offer, you could accept the settlement any time up to the date of the trial. It is best to reject or accept sooner rather than later. You could still save yourself some money if you choose settlement.
Receiving Your Settlement Check or Court Award
Once you settle your case or win a court award, the defendant has a certain number of days to cut a check and mail it to your attorney. In settlements, the attorneys review drafts of the settlement agreement, and once everyone signs it, the defendant will send the check to your attorney. In the case of a court award, the court will often draft and issue a final order. Once the court signs and issues the order, the defendant must forward the check in the amount awarded within a time specified by the court.
The attorney will deposit the check into their IOLTA account and deduct their fees and costs. In many cases, the attorney also deducts medical expenses they may have covered. Before making deductions, your attorney should send you an invoice notifying you of the deductions. In the end, however, most clients make substantially more with the help of their attorneys—even after paying lawyer fees—than they ever could have on their own.