If I make a Personal Injury Claim after an Accident, will I need to go to Court?

This question comes up often. I get it. The thought of being on a witness stand in front of a jury, while being berated by lawyers, is intimidating - to say the least. But the truth is that an overwhelming majority of personal injury cases are resolved without the need to ever step into a courtroom.

A Summary of the Claims Process

An unfortunate accident happens (whether it be a motor vehicle collision or some other type of accident), you were injured, and you feel that someone else's negligence was the cause. It wasn't your fault and you deserve to be compensated for your injuries and other out-of-pocket expenses. So after having your injuries looked at by a medical professional, you decide to call that personal injury lawyer you saw on television, found online, or were referred to by a friend. What happens next?

For most cases, things will proceed as follows: First, your attorney will put the potentially responsible parties (as well as any known insurance companies) on notice of the claim. A file will be set up, and preliminary information will be shared between your attorney and the responsible party and/or their insurance company. During this initial phase of a case you (the injured victim) will focus on your medical treatment and recovery, while your attorney collects all of the evidence and documentation that will be needed for the case (e.g., police reports, witness statements, medical records). Once all of the relevant evidence and documentation has been collected, and you are at a medical end result with any treatment for your injuries, a demand for settlement will be made. This is often referred to as the "claims stage" of a case. Nothing has been filed in Court yet, as an attempt is being made to settle the matter outside of Court (saving you the time and expense of a lengthy litigation process). If both sides can agree on a reasonable settlement figure at this stage, then a lawsuit will never need to be filed as the case is resolved. Many (in fact most) cases are successfully settled during this initial claims stage, which means the injured victim never has to enter a courtroom at all.

If a reasonable settlement cannot be reached during the claims stage, then the case will need to be litigated. We'll refer to this as the "litigation stage" of a case. This involves your lawyer actually filing a Complaint against those responsible for your injuries in Court. However, there is still quite a bit to do before an actual trial is scheduled. There will be a period of time (generally a period of a year or so) for each side to conduct Discovery. There will be Interrogatories, Depositions, various Motions, and possibly even a Mediation. But throughout the whole litigation process, your case can still settle at any time. So you still haven't entered a courtroom, and there's still a very good chance that you'll never have to.

Even after the claims stage and the litigation stage, there are some cases that just need a trial to get resolved. Either one side or the other is simply being unreasonable in their valuation of the case, or maybe the defendant simply doesn't feel that they were negligent in any way. So some cases will go to trial. But even then a case can still settle before, during, or even after a trial (while the jury is deliberating). Statistically, the number of cases requiring resolution by trial is very low. The next section of this legal guide will provide you with some of the actual statistics - which many people find quite surprising.

The Statistics

As recently reported in an article by thelawdictionary.org, only "four percent to five percent of the personal injury cases in the United States go to trial". That means 95% - 96% of personal injury claims are resolved pretrial. In fact, the American Judges Association has suggested that as many as 97% of civil cases get resolved before trial. The Law Dictionary article goes on to explain that of the 4%-5% of cases that go to trial, 90% are decided in favor of the defendant. This is a very interesting statistic that begs the question - why? In my experience, insurance companies only go to trial on the cases they think they can win. Put another way, only the cases with "issues" tend to go to trial. If liability is clear, and the plaintiff is being reasonable with their settlement demand, then the case will almost always get resolved short of trial. In my early years as a lawyer, back in the 1990's, my senior attorney and mentor at the law firm I worked at said something that has always rung true: "If you find yourself in front of a Judge or jury to determine your case, then something went wrong". Although my office goes to trial on the cases that need to be tried, with very good results, the truth is that trials are risky. A good lawyer, in his or her client's interest, will do whatever possible to achieve a reasonable settlement without the need for trial - but still be willing to take it to trial if needed.

To Settle or Not to Settle?

The best advice to give here, assuming you have retained someone with a good reputation and experience, is to trust your lawyer. No two claims are exactly alike, and there are many factors to consider in every case, but an experienced lawyer will be able to tell you if an offer being made is reasonable or not for your case. Always keep in mind that trials are inherently risky (even more so for the plaintiff), so it's always going to be a question of reasonableness. Will the offer being made adequately, within reason, compensate you for your physical and emotional injuries? That's the question that you and your lawyer should be discussing whenever a final settlement offer is made. If the answer is yes, settle the case. If your lawyer suggests that the settlement offer is reasonable for the case, then don't find yourself being one of the 90% of victims (see above) that walk out of a courtroom with nothing because you think that you can get more from a jury. Statistics show that more times than not (in fact up to 90% of the time), you will be wrong. On the other hand, if you are successful at trial (if you are one of the 10% of plaintiffs who win at trial) then there's always a possibility that the award can be significantly higher than the last settlement offer. You hired your lawyer for a reason. Let him or her help you to make the right decision. If an offer being made is unreasonable, trust your lawyer to tell you so and discuss the pros and cons of bringing it to trial at that time. Some cases need to go to trial, but most don't.