Introduction. Here I will explain the basic steps that a typical personal injury case will follow. Although not every case is the same, there is a common procedural thread that starts from the time of the accident up until either a settlement or a trial. We will use a simple car accident as our example. Let’s assume you are involved in an accident in which you were rear-ended by another vehicle. In our example, we will also assume that the police came to the scene and actually made a police report. Please note, however, that many police departments have stopped coming to accident scenes and making accident reports unless an ambulance is needed, either vehicle needs to be towed, or the drivers are not cooperating in exchanging the necessary identification and insurance information.
Step One: The first three days. The first step is determining the need for initial medical treatment. You might decide to go to the emergency room by ambulance from the accident scene. You might even decide to go to the emergency room later that day or even the next day. If you think that you are hurt, but don’t require a visit to the emergency room, you should make an appointment with a doctor. At this point, you should also be considering talking to a lawyer. Get a lawyer on your case right away so that your case can be properly monitored from the very beginning. Once you have seen a doctor for an initial evaluation, you may need further treatment or physical therapy. If you have health insurance, you and your lawyer will decide whether you should use your health insurance. If you do not have health insurance, or you choose not to use your health insurance, then your lawyer should be able to make arrangements with a doctor to delay collection of his bill until after the case settles.
Step Two: The first week. At this point, you should be set up with a doctor on a treatment program. Meanwhile, your lawyer is doing an number of things. He is ordering the police report and setting up the claims with the other person’s insurance company as well as your own automobile insurance. Sometimes the claims have already been reported by now, but the lawyer will at least send letters of representation to each of the insurance adjusters. Your lawyer is also making arrangements to have your car inspected and repaired. Your lawyer will probably instruct you that the adjuster will contact you directly regarding the property damage part of the claim. The adjuster will set up a time and place to inspect, photograph, and appraise the damage to your vehicle. Once that is done, the adjuster will suggest that you take the vehicle to one of their approved body shops to start the repairs. You are not required to use their approved shop. You can take the vehicle anywhere you want. Either way, the adjuster will approve the repair of the vehicle and also approve a rental car. You will then take the vehicle to the body shop and pick up your rental car.
Step Three: The first month. At this point, you are probably still treating with your doctor and making some improvement. Your car has probably been repaired by now. Your lawyer has started to build up your file with documentation such as the police report, and any emergency room medical records and bills. He may have also contacted witnesses to get more accident details and contact information. All that is left is to wait until your doctor releases you from treatment.
Step Four: Release from your medical care. When your doctor decides to release you is a decision left up to you and your doctor. If he decides that you are not improving at the proper rate, he may order an MRI or a consultation with a specialist. Either way, the goal here is to get the proper medical treatment so that you may fully recover from your injuries. You may only need physical therapy, or you may need further treatment, such as injections, pain management treatment, or even surgery. Once your doctor decides that you have reached MMI (Maximum Medical Improvement), then he will release you from his care. The most important thing is to get you well.
Step Five: Submission to the insurance company. After you are released from treatment, your lawyer will proceed to collect your remaining medical records and bills so that he can prepare to submit a settlement package to the insurance adjuster. The adjuster will receive the settlement package, review it, and evaluate it for possible settlement. The evaluation process takes about two or three weeks. The adjuster and your lawyer will then have a series of back-and-forth settlement discussions in an effort to resolve your claim to your satisfaction. The goal is to get a settlement figure which is sufficient to pay your doctor bills, case expenses, lawyer fees, and still leave enough money left over for your pain and suffering. Most cases settle at this point. If so, then the adjuster will send your lawyer a simple release form and the settlement check.
Step Six: Filing a lawsuit. If you are not able to settle your case with the adjuster, then you and your lawyer will have to decide whether to file a lawsuit. Filing a lawsuit is the only way to prosecute your rights if you cannot reach an agreement. That doesn’t mean you still cannot settle your case. The parties are free to settle the case at any time during the lawsuit process. Rather, it just means that the parties are at a “stale-mate” in the negotiations. Your lawyer will draft the lawsuit, file it with the proper court, and serve the suit papers on the other driver. On a few occassions, the adjuster may attempt to revive settlement discussions once he learns that the lawsuit has been filed. If not, then the insurance company will hire a lawyer to represent their driver.
Step Seven: Pre-Trial Discovery. Once the lawsuit is filed, then both lawyers will engage in a detailed and comprehensive exchange of information, documents, and deposition testimony. This process is called “discovery” and can take anywhere between 4 – 8 months, or even longer in more complicated cases. Discovery usually involves the parties obtaining and exchanging documents and information such as medical records and bills, police reports, photographs, damage estimates, witness statements, insurance policy information, employment information, income tax returns, driving records, criminal records, and deposition testimony. Rarely do case settle within the discovery stage, although the parties are free to do so if they can.
Step Eight: Mediation. Once the parties are satisfied with the information they have obtained and exchanged during the discovery stage, the case will proceed to mediation. Mediation is simply a settlement conference. Mediation presents the best opportunity to settle your case in the lawsuit stage. Generally, the Court will order the case to mediation. However, the parties can also agree to attend mediation on their own. The typical mediation consists of you and your lawyer meeting at the mediator’s office, along with the defendant’s attorney and the insurance adjuster. The mediator is usually an attorney but does not have to be an attorney. The mediator is trained and experienced in dispute resolution. After a brief joint introductory session, the mediator will break the parties up into their own private rooms. You and your lawyer will be in one room, while the defense lawyer and the adjuster will be in another. The mediator will then shuttle between each room explaining how the case should settle. If the mediator is successful in working out a settlement between the parties, then a “Memorandum of Settlement” will be signed by you, your lawyer, the defense lawyer and the adjuster. All that is left at this point is to have the adjuster and defense lawyer issue the settlement check and prepare the final settlement papers.
Step Nine: Trial. If you are unable to settle your case at mediation, then you may have to go to trial. That doesn’t mean you cannot settle your case after mediation and before trial. Remember, a settlement can made by the parties at anytime in the lawsuit process, even during the trial. Trial takes a great deal of preparation for you and your lawyer, but it may be your only option if you are unable to get your case settled. Because of the huge back-log in our courts, sometimes it may take two or more years to actually get to trial. Although the prospects of going to trial may be intimidating to some people, most cases do not go this far. About 80% of cases settle without even a lawsuit being filed. Even if a lawsuit is filed, about 95% of those cases actually settle without going to trial. Sometimes, however, a small percentage of cases cannot settle and a trial is the only option.
I hope this helps take some of the mystery out of the claims process. Keep in mind though that every case is different and must be judged on its own merits. No two cases are exactly the same, and no two clients are exactly the same. That is why it is important to hire a lawyer as soon as possible. Having the proper legal representation early in the process will reduce the risk of your case being mis-handled and increase the chances of a more favorable outcome.