If you’ve been in a car accident, injuries and damages to your car may have you thinking about whether or not you should sue the other driver. If, in talking to your insurance agent and an attorney, you are convinced on whether you should, then you ought to learn about the sometimes long path you are about to tread.
Before you sue, you’ll need to know what damages the insurance company for the other driver can offer you. If the other driver’s policy limits do not adequately compensate you for medical expenses and car repairs, you’ll need to confirm with your insurance agent whether you have underinsured motorist coverage to make up the shortfalls in the other drivers insurance. Even if you do, you still have a potential lawsuit if your losses are higher than what your underinsured motorist coverage can pay.
If you live in a no-fault state, you may only sue under limited conditions. Talk to your attorney and insurance agent to find out if you meet these conditions.
Filing the Car Accident Injuries Lawsuit
Lawsuits seeking compensation for car accident injuries are civil lawsuits, also known as personal injury, or tort, cases. Civil lawsuits generally follow a similar path toward conclusion. They start with the filing of a complaint, or petition, with the local court.
Many states limit the time in which you can file a lawsuit, so you’ll need to check with your auto accident attorney and make sure your suit is filed before the statute of limitations is up. For example, if your state requires you to file within two years of the date of the injury, then you have two years from the date of the car accident to have your attorney file the case.
Your complaint will set out the allegations that make you, the plaintiff, entitled to money from the other driver, the defendant. It will also state what relief is sought and sometimes identifies the legal theory under which you plan to prove your case.
The other driver and his insurance company, which is likely paying for their defense, has a set amount of time in which to respond to your lawsuit. The response may include an answer, in which the defendant either admits or denies the allegations. It may also include counterclaims, which show how you contributed to the car accident and are responsible for your own injuries. And it may include cross-claims, which seek to blame the accident on another defendant if there is one.
Like your original complaint, you will have a set period to respond to the defendant’s counterclaims.
There a number of motions the defendant can make that may affect your case, including:
- Motion for change of venue: Which, if successful, will move your case to a different courthouse
- Motion for a change of judge: Which will get your case moved to a new courtroom
- Motion for removal: Which will move your case from state court to federal court (the motion needs to show that the case either involves federal law or that the defendant is from a different state)
- Motion to dismiss: Which does not necessarily dispute the facts of the case but may argue the suit was brought in an untimely manner or that no relief is warranted
In all but the last motion, the case still continues even if the motion is granted. Such motions are public and are generally ruled upon without a hearing.
If your case survives the motion to dismiss, the judge will then set a date for trial. The judge at this time might order you into mediation. In mediation, you and your car accident attorneys meet with the defendant and their attorneys for talks moderated by a neutral third-party mediator. The mediator guides the conversation and tries to bring about agreement between the parties.
Personal injury cases are usually placed behind other civil cases, such as landlord disputes, so do not be surprised if your trial date is a year or more in the future.
If mediation is unsuccessful, your case then moves into the discovery phase. Discovery is the period in which attorneys from both sides of the case investigate the facts. It may involve interviewing witnesses and examining documents. The car accident attorneys may want to interview the drivers, witnesses, and other people who have information pertinent to the case in a proceeding called a deposition. Attorneys from both sides are present at the depositions and are allowed to ask questions. The interviewees swear to tell the truth, just as they would in court, and their responses are recorded by a stenographer, who will then make a transcription of the deposition.
If the defendant has access to documents relating to the car accident that your attorney wants, he or she may ask for the defendant to produce the document. Both sides must share with the other all information gathered during discovery.
Both depositions and documents produced in response to interrogatories are evidence that may be used at your trial. Depositions may be read into the record during the trial if that witness is unable to attend the trial. In addition, depositions may be used to impeach a witness if he or she says something at trial that contradicts the testimony during the deposition.
It is not uncommon for attorneys from the other side to try to wear down a plaintiff during discovery. This could be accomplished with the sharing of mountains of information to overwhelm you or by examining personal affairs you may not want publicly disclosed at trial.
If you and your car accident attorney believe the evidence gathered during discovery supports your bid for compensation from the other driver, you may bring a motion for summary judgment. Such a motion allows the judge to decide the case without seeing live witnesses or conducting an evidentiary hearing. Summary judgment can also narrow the issues by resolving some, but not all, of the issues raised in your original complaint.
The motion will be accompanied by evidence produced during discovery and may also include a memorandum from your attorney, setting out the legal theories. After reviewing the filing, the judge can grant the motion if there is no dispute over key facts or deny the motion because a trial is needed to resolve disputed facts.
Your Case Goes to Trial
If your case is heard at a bench trial, that means only a judge will decide your case. The judge will rule on which laws are applicable in your case and whether the evidence proves the law is on your side. In a jury trial, the judge still determines which laws are applicable, but the jury decides what actually happened and whether those facts meet the requirements of the laws that govern personal injuries.
Few car accident injuries cases make it all the way to trial. At any point along the path to a trial, even during the trial up until the point a jury announces its decision, the defense may offer to settle the case with you. If you do take the settlement, the court is notified that the case has been resolved and it is dismissed. Settlements are usually completed in writing but are not made public, unlike a jury verdict. While your attorney can advise you on how likely you are to prevail should you continue your case, only you can decide whether to accept the settlement agreement.
If you have been injured in an auto accident, it is always recommended to seek the counsel of a knowledgeable and reputable trial attorney or personal injury attorney to help guide you through the process from start to finish.