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How To File A Personal Injury Lawsuit

Experienced personal injury lawyers explain how the legal process works

Being injured in an accident can be a traumatic experience. You might have a very serious injury that requires extensive medical care. You might not be able to work for weeks or months or perhaps ever again.

Bills can add up fast. Knowing what to do next can be overwhelming. Fortunately, injury victims often have many options available in such cases. One of those options is filing a personal injury lawsuit. But how does the process work? How do you file a lawsuit?

Each state often has its own unique rules when it comes to legal matters involving personal injury cases. Some states require individuals to hire a lawyer in order to file a personal injury lawsuit. Other states do not have such a requirement. Either way, there are often many similarities from one state to another when it comes to personal injury cases.

Below, you will find the general guidelines for filing a personal injury lawsuit in most states. However, keep in mind that your particular state might have slightly different rules. That’s why it’s important to consult with a lawyer licensed to operate in your state.

Determine if you have a legal case

The first step is to determine if you have a legal case. In general, you can file a personal injury lawsuit if someone’s actions or inaction resulted in your injury. Often, this means the person or business who caused the accident acted in a reckless or negligent manner.

The person or business that caused your injury is often known as the at-fault party. In addition, the at-fault party in a lawsuit is often referred to as the defendant. If you file a lawsuit against the defendant, you are known as the plaintiff in such legal matters.

In most cases, the best way to determine if you have a legal case is to consult with a lawyer familiar with handling personal injury claims. Many personal injury lawyers offer a free consultation, where you can ask the attorney questions and find out if you have a legal case.

Check deadlines in your state for taking legal action

Each state has its own unique deadlines for filing a personal injury lawsuit or taking other legal action. These deadlines are known as the statute of limitations. This means you only have a certain amount of time to file a lawsuit. Often, the deadline is several years after your injury took place. If you miss this deadline, you could miss out on your opportunity to take legal action and obtain the money you deserve for your injury-related expenses.

Find out if you’re eligible to file a lawsuit

Each state has its own eligibility requirements concerning who can file a personal injury lawsuit. In some cases, the injured party is the only one that can file a lawsuit if they have been injured in an accident caused by someone else.

However, some states allow other individuals to take legal action after a personal injury accident. In many cases, this may include:

  • Husband or wife of injury victim
  • Mother or father of injury victim
  • Children of injury victim, including adult children in certain circumstances
  • Siblings of injury victim

In particular, immediate family members can often take legal action if a loved one died in a fatal accident. In such cases, family members can often file a particular type of personal injury lawsuit known as a wrongful death claim.

If you are not sure if you have the right to file a lawsuit in your state, talk to an attorney familiar with the rules and regulations covering these types of cases.

Gather evidence in support of your claim

In order to file a lawsuit, you often need to provide evidence documenting that your injury occurred due to someone else’s reckless or negligent behavior. Such evidence can cover a wide range, including:

  • Accident reports filled out by an investigating police office
  • Medical records documenting your accident-related injury
  • Eyewitness testimony from someone who saw what happened
  • Inspection reports documenting dangerous conditions that resulted in your accident
  • Expert testimony explaining why the at-fault party should be held accountable for causing the accident

Evidence can vary widely from one case to another. The bottom line is the more evidence you have in support of your personal injury claim, the stronger your legal case will likely be.

Determine where you can file your lawsuit

In most states, personal injury lawsuits are considered civil matters, as opposed to criminal cases. As a result, most personal injury lawsuits are filed in state civil courts, which are often referred to as district courts or county courts.

However, in certain circumstances, such lawsuits may be filed in federal court. This is especially true in cases involving violations of federal law or cases that involving a defendant who lives or does business in another state other than the one where the accident took place.

Either way, you will need to determine which court has jurisdiction over your personal injury lawsuit. Jurisdiction is a legal term used to describe which court (or courts) has the right to rule on your case.

Decide where to file your lawsuit

Some states allow injury victims to choose where they want to file their personal injury lawsuit. This is something to carefully consider and discuss with a lawyer. That’s because certain courts might be more receptive to certain legal cases.

In certain states, the plaintiff may be able to file a lawsuit in one of three different jurisdictions:

  • The location where the accident took place
  • The location where the plaintiff lives
  • The location where the defendant lives or does business

As stated earlier, you may also have the choice to file your lawsuit in state or federal court. A lawyer can advise you on where to file your lawsuit and the advantages of different jurisdictions.

Write a demand letter

Once you have decided where to file your lawsuit, you will need write a formal letter known as a demand letter. The plaintiff’s lawyer often writes this official letter. In a demand letter, the plaintiff essentially outlines the reasons why they are taking legal action against the defendant. A demand letter often states:

  • Why the plaintiff believes the defendant is responsible for their injury
  • How much money the plaintiff believes the defendant must pay to resolve the legal matter
  • A deadline for the defendant to pay the requested money
  • What actions the plaintiff will take if the defendant does not pay the requested money by the specified deadline. In most cases, the plaintiff often states that they will file a lawsuit against the defendant in pursuit of financial compensation, known as damages.

Write a complaint letter

The next step in many legal cases involves the plaintiff writing a formal complaint letter. This letter is written when the defendant refuses to comply with the wishes of the plaintiff outlined in the demand letter.

A formal complaint letter is filed with the court that has jurisdiction over the case. Some states require the plaintiff to file a complaint letter in person with the court. Other states allow the plaintiff to file their complaint letter electronically online.

In most cases, the plaintiff’s complaint letter includes:

  • The exact name and address of the plaintiff and defendant. If this wrong, a judge will often automatically dismiss the case due to such an error.
  • A detailed description explaining why the plaintiff believes the defendant is at fault and should be held responsible for the accident.
  • A request from the plaintiff for a specified amount of money from the defendant to resolve the legal matter.
  • A request by the plaintiff for the defendant to be summoned, meaning to appear in person before the court.

Wait for defendant to respond

Once the plaintiff has filed a formal complaint letter with a court that has jurisdiction over the case, the defendant often has a certain amount of time to respond to the complaint letter. The amount of time the defendant has to respond often varies from one state to another.

Common responses from defendant to complaint letter

Option 1 – Defendant does not respond…

Sometimes, the defendant chooses to not respond at all to a complaint letter. This often does not happen in many legal cases. If it does, the plaintiff often has the right to ask the presiding judge to issue a default judgement, a binding legal agreement often in favor of the plaintiff. As a result, the plaintiff may be awarded damages (financial compensation) from the defendant without even having to go to trial.

Option 2 – Defendant files a motion to dismiss…

If the defendant does not believe the plaintiff has a legitimate legal case, the defendant’s lawyer may file a motion to have the plaintiff’s lawsuit dismissed. This simply means the defendant is asking the court to have the legal case against them withdrawn from the court. The judge will then rule on the merits of the motion to dismiss.

Option 3 – Defendant files a motion for a more definitive statement…

Sometimes, the defendant files a motion asking for more information in support of the plaintiff’s legal case. This is known as filing a motion for a more definitive statement. Like a motion to dismiss, the presiding judge will decide whether or not the plaintiff has to provide more evidence in support of their legal claim.

Option 4 – Defendant files a counter lawsuit…

Another common response to a complaint letter is for the defendant to respond with a lawsuit of their own against the plaintiff. This type of lawsuit is often called a counter lawsuit or counterclaim.

Option 5 – Defendant wants to settle the case…

Sometimes, a plaintiff’s official complaint letter indicates to the defendant the seriousness of the legal matter. As a result, some defendants may want to resolve the legal matter without going to trial. When this happens, this is known as settling a lawsuit out of court. Often, the defendant agrees to settle the case and pay the plaintiff a financial settlement to resolve the legal case. Many settlement offers are legally binding. The details of a final settlement may often be kept confidential as part of the agreement. Many defendants (particular large corporations) choose to settle legal cases out of court in order to avoid the negative publicity of a courtroom trial.

What happens if your lawsuit goes to trial

If a personal injury lawsuit between a plaintiff and a defendant cannot be resolved, the case will then normally go to trial. However, in some cases, some states require the plaintiff and defendant to undergo mandatory arbitration or mediation in an attempt to resolve their legal matter instead of going to trial. In such cases, if an arbiter or mediator cannot resolve the legal matter, the lawsuit will often then proceed to trial.

Below, you will find the steps that normally take place in most states if a personal injury lawsuit goes to a courtroom trial.

Discovery stage

The first step in this phase of the legal matter involves both sides sharing which evidence they plan to introduce at trial in support of their legal case. This step is known as the discovery stage. Evidence can cover a wide range, including medical records, accident reports and safety inspection records. Both sides also explain which witnesses or experts will be called upon to testify at the trial. During the discovery stage, each side can ask the judge to not have certain evidence admitted at the trial.

Pretrial conference

This next phase is often the last phase before a legal case officially goes to trial. During a pretrial conference, the plaintiff and the defendant essentially ask the presiding judge to decide what the rules will be for the trial. During the pretrial conference, the judge and attorneys for both sides often decide:

  • Which evidence will be allowed at the trial
  • Which witnesses will testify
  • Discuss any motions that have been filed with the court and ask the judge to rule on these legal motions

Trial date set

The judge often then sets a date for the trial to begin. Sometimes, the plaintiff or defendant will request additional time to prepare a case for trial. This is often because one or both sides need more time to gather evidence in support of their case.

Jury selection

Some personal injury lawsuits involve a jury, especially if the legal case involves a significant amount of money. If this is the case, the judge, in consultation with the defendant and the plaintiff, will decide who will serve on the jury for the trial. Either side can object to certain individuals serving on the jury, particularly if either side believes a prospective juror cannot be impartial or has a bias against the defendant or the plaintiff. The judge then rules on such requests or objections.

Opening statements

This is the step where the lawyers for each side outline the merits of their legal case. The opening statements are often brief but clearly indicate why each side believes the judge and/or jury should rule in their favor.

Evidence presented

Each side then presents evidence in support of their case. This phase in the trial can last several hours or several days or even longer depending on the complexity of the legal case. Evidence may include accident reports, medical records, inspection reports, photographs of the accident and other documents in support of each side’s legal claim.

Witness testimony

One of the most important parts of a trial often involves testimony from eyewitness or anyone with direct knowledge of the accident or legal matter. Experts in their field may also testify for either side in order to provide expert analysis of the evidence or certain types of injuries or accidents.

Cross examination

When witnesses or experts testify at a trial, each side has the opportunity to ask these individuals questions. This is known as cross examination. Often, one side will cross examine experts or witnesses testifying for the other side in order to discredit their testimony. Attorneys must often abide by very strict rules when cross examining a witness. Failure to do so can result in disciplinary action by the judge.

Closing arguments

Once both sides have presented their evidence, witness testimony and had the opportunity to cross examine all witnesses, each side then presents its closing arguments to the judge and/or jury. In the closing arguments, each side explains why they believe the judge or jury should rule in their favor.

Jury instructions

If a jury is ruling on a case, the judge will then often provide instructions to the jury. Such instructions might outline what evidence they can or cannot consider during jury deliberations. Jury instructions might also include exactly which state or federal laws the jury needs to consider when making its decision.

Jury deliberation

This is the step where the jury meets in private and makes its decision on the case. In some states, the jury must unanimously decide whether to rule in favor of the plaintiff or the defendant. In other states, only a majority of jurors need to rule in favor of one side in order for their decision to be legally binding.

Verdict issued

Once a judge or jury reaches a decision, they announce their verdict. In general, they rule in favor of the defendant or the plaintiff. However, if the jury cannot reach a decision, the judge may issue a mistrial ruling. If a mistrial occurs, the presiding judge may order the case to be dismissed or for a new trial to be held with a new jury.

Damages awarded

If a judge and/or jury rules in favor of the plaintiff, the judge and/or jury may award damages (financial compensation) which the defendant must pay to the plaintiff. The amount of money awarded in damages can vary widely, from a few hundred or a few thousand dollars, to millions of dollars or more in certain circumstances.

What comes next

If the plaintiff wins…

If the judge and/or jury rules in favor of the plaintiff, the defendant often has two options:

  • Pay the damages ordered by the judge or jury.
  • Appeal the case to a higher court. In most cases, all appeals must be filed within a certain specified amount of time after a verdict has been issued.

If the defendant wins…

If a judge and/or jury rules in favor of the defendant, the plaintiff often has two options:

  • Accept the judge or jury’s ruling.
  • Appeal the case to a higher court.

How a lawyer can help with your case

While some states allow individuals to file a personal injury lawsuit on their own, it’s often wise to consult with a lawyer about your potential legal case. Lawyers who handle personal injury cases in your state will often meet with you free of charge. That way, you can ask any questions you might have about your potential legal matter.

Many personal injury attorneys also work on a contingency fee basis. That means you only have to pay them if they recover financial compensation for you in the form of a settlement agreement or jury verdict. If they do not secure any money for you, you do not have to pay them if they are working for you on a contingency fee basis.

The stakes are high when it comes to many personal injury cases. Insurance companies for the at-fault party know this. That’s why they often hire an entire legal team to defend their actions and deny your claim. Having a lawyer on your side can help level the playing field and give your legal case the best opportunity for success.

Smith & Hassler is a personal injury law firm based in Houston, Texas.

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