If you’ve been injured in an accident and are seeking compensation from the person who caused your injury, chances are high that you will not be spending hours in a courtroom. Data from the Department of Justice shows that only 3 to 5% of personal injury cases go to trial. In most cases, the other party’s insurance company agrees to pay a fair settlement amount.

While going to court for a personal injury case doesn’t happen often, there are situations when it makes sense. We will go over some examples of when settlement negotiations don’t work and filing a lawsuit is the best option.

How a Typical Personal Injury Case is Settled Out of Court

When a personal injury victim is owed compensation due to someone else’s negligence, they ideally seek the help of a personal injury attorney. The attorney begins the process by filing a claim against the other party’s insurance company. This usually includes:

Gathering evidence. First, the attorney will collect a police report, witness statements, photos of injuries, medical bills, and any other proof that the other party was at fault, and calculate the amount they owe. 

Sending a demand letter. The attorney will write and send a demand letter to the insurance company. This letter includes:

• the date and time of the incident
• how the injury happened
• a list of expenses owed including vehicular damage, medical bills, lost wages, and estimated pain and suffering
• supporting evidence (such as the police report) and witness statements
• an expected resolution (or demand of payment)
• a deadline by which payment must be received

Negotiation. If the insurance company does not agree to the conditions of the demand letter (which is common), they may send a counteroffer with a lower amount. This process may continue several times until both parties come to an agreement. If the two sides can’t agree, they may bring in a neutral mediator to negotiate the terms. 

Payment. Once both parties reach an agreement, the at-fault party’s insurance company gives the plaintiff a settlement check. The plaintiff then signs a release stating they will not make another claim against the defendant regarding the incident, and the case is closed.

Why You Might Go to Court for a Personal Injury Case

Although the above process can be lengthy, it’s usually possible that both parties come to an agreed-upon settlement. If that does not happen in your case, it is likely due to one of the following complications:

A Liability Dispute

As a plaintiff, you must prove that the other party’s negligence caused your injury. If the other party or their insurance company claims the accident was not their fault, or there is insufficient evidence to prove it, a trial may be necessary to resolve the issue. 

There may also be a dispute regarding the percentage of liability. New Mexico is a pure comparative negligence state. This means that two parties can share liability for an action. If the defendant is claiming that you were partially responsible for the accident, the amount of your compensation could be reduced by the percentage of fault assigned to you. For example, say another driver runs a red light, but you were texting and driving so you didn’t avoid hitting him. A court or jury will determine the percentage of fault each party bears. This percentage then dictates how much compensation you can recover.

If your accident was in Texas, it’s important to prove that you were less than 50% at fault because the state follows a modified comparative negligence rule. As long as the other party is found to be at least 51% at fault, they owe you the total amount of compensation you are seeking. 

Disagreement on Compensation Owed

Even if liability is not disputed, there may be disagreements regarding the extent of damages. For instance, the other party’s insurance company might only pay for your car repairs and current medical bills. If you will need surgery and physical therapy in the future, it may be necessary to argue your car accident in court to receive a higher settlement amount. 

Bad Faith by an Insurance Company

Some insurance companies unfairly deny valid claims or fail to conduct a reasonable investigation of their own. A personal injury attorney will do everything possible to collect evidence to prove you deserve to be paid, but total refusal from insurance companies often needs to be handled by a jury.

A Complex Case

When cases involve complicated issues that are difficult to resolve through negotiation or mediation, a trial may be necessary. Let’s say that you have invisible injuries after a truck accident, such as PTSD, chronic pain, or a traumatic brain injury, and the trucking company’s insurance refuses to pay for your lost wages since there is no physical evidence of your injuries. A medical expert can testify in court as to how these injuries make life extremely difficult, convincing a jury or the judge that you are owed more money. 

Statute of Limitations

If a settlement has not happened by the time the statute of limitations is approaching, your attorney may encourage you to file a lawsuit to preserve your right to seek compensation through the court system. In New Mexico, the statute is three years from the time of injury. In Texas, it’s two years. 

Weighing the Pros and Cons of Having a Personal Injury Case Go to Trial 

If both parties can’t come to an agreement, going to court may be the only way to win your case. But when going to trial is simply an option, the decision should be made carefully with your attorney. They will go over the advantages and drawbacks with you, considering important elements such as:

• The strength of your case. If evidence strongly supports your claim, going to trial might be advantageous. However, there is always a chance you could lose in court. 

• Your personal situation. A trial can take a long time. Taking days off of work, getting childcare, and dealing with transportation issues might not be worth the extra compensation you hope to achieve by going to court.

• The offer amount. If there is already a reasonable settlement offer on the table, it might be best to accept it and avoid further disruption and stress that could come with a trial.

A Trustworthy Attorney is Critical For Making You Whole Again

Whether you go to court for a personal injury case or you end up taking a settlement, you deserve an attorney who will do everything possible to get the amount you are owed. At the law offices of Samuel I. Kane, we can guide you as you weigh your options. We will listen to you from the moment you sit down to tell us your story, and we won’t take a dime unless you win your case. Contact us today for a no-obligation consultation.

Please note that this article was created for advertisement purposes, and it does not constitute any contractual legal relationship, nor imply one.