Most personal injury cases settle out of court, and many settle before a lawsuit is even filed. Sometimes, when an attorney sends a demand letter, the insurance company immediately negotiates a favorable settlement. Most states require insurance companies to respond in this matter if liability is reasonably clear.
But typically, liability is not reasonably clear. For example, the insurance company may believe that the victim/plaintiff does not have enough facts to prove liability. Or, a lawyer, as a personal injury lawyer Brookhaven, GA turns to, may think there is a defense, such as contributory negligence.
So many negligence cases follow the following pattern, at least in part.
Most states are notice pleading jurisdictions. The original petition need only allege facts that put the defendant on notice as to the nature of the claim. Some states, and the federal court system, are fact pleading jurisdictions. Attorneys must spend many hours preparing detailed petitions that allege specific facts.
The defendant then has a chance to respond to these pleadings. Many times, this response includes an immediate request for judgement. In federal court, defendants base these motions on Rule 12(b)(6), which is “failure to state a claim upon which relief can be granted.” Many states have similar rules.
Usually, the defendant has another opportunity to throw the case out of court. This chance comes after the discovery process is either over or substantially complete.
In America, our justice system is primarily designed to learn the facts in a case. Not choose a “winner” and “loser.” Civil lawsuits feature extensive discovery. During this process, attorneys learn about the other side’s case through things like:
- Property inspections,
- Document reviews, and
- Answers to written questions.
If the defendant feels that there is not enough evidence to support the victim/plaintiff’s positions, the defendant files for summary judgment. If this motion fails, the case moves on to step three.
Settlement negotiations usually start at the beginning. Mediation is essentially supervised negotiation that has a much better chance of succeeding. A neutral third party listens to both sides. Then the mediator conveys settlement offers back and forth until the parties reach an agreement. Statistics vary, but voluntary mediations are usually successful about 70 percent of the time.
If settlement negotiations fail, the case moves on to trial. That could take place before a jury or before a judge, a procedure that’s called a bench trial. If there is an error in that trial, an appeal may be possible.
This process could take several months or several years. An experienced attorney usually expedites the process and brings about a more favorable result, so reach out to one today.
Thanks to our friends and contributors from Butler Tobin for their insight into filing a lawsuit.