Personal Injury

Auto Accidents and Personal Injury Lawsuits

By David Goguen, J.D., University of San Francisco School of Law
After a car accident, should you file a lawsuit against the at-fault driver? And if you do take the case to court, what should you expect?

If you have suffered an injury in an automobile accident -- whether as a driver, a passenger, a motorcyclist, a bicyclist, or a pedestrian -- you have a number of options to choose from when it comes to getting compensation for your medical bills, lost income, and other losses stemming from the crash. One such option is filing a personal injury lawsuit against the driver or other party responsible for the accident. But do you always need to file a lawsuit in order to get a fair outcome? And if you do end up filing a lawsuit, what should you expect from the process?

Before You File a Car Accident Lawsuit

Even though emotions run high after a car accident, especially where injuries are serious or the other driver was clearly in the wrong, it isn’t usually wise to run to the courthouse and file a lawsuit against the other party. As long as the other driver is insured, you will usually have an opportunity to settle the matter without involving the court system.

If you have an attorney, he or she will reach out to the at-fault driver’s car insurance carrier, perhaps informally at first, and then later following up with a detailed demand letter. Especially if fault is pretty obvious -- you have two witnesses who say the other driver ran red light, for example -- the insurance company may come to the negotiating table very motivated to settle. Lawsuits can be expensive and time-consuming, and if the case ends up making it to trial, neither side usually wants to see it end up in the hands of an unpredictable jury.

It’s important to note that an insurance claim and a personal injury lawsuit are almost never mutually exclusive. What starts out as an insurance claim could wind up as a lawsuit if the two sides can’t see eye to eye on a fair settlement. But even after a car accident case graduates from the insurance claim process to the civil court system, insurance coverage will still play a role, and settlement could occur at any time. Learn more about The Role of Insurance in a Personal Injury Case.

Finally, if you live in one of the dozen or so no-fault car insurance states, you may not have the option of filing a lawsuit against the at-fault driver unless the circumstances allow you to circumvent the no-fault system.

Getting a Car Accident Lawsuit Started

If you do decide to file a lawsuit over your car accident injuries, now is a good time to turn your case over to an experienced attorney so that he or she can worry about complying with the court’s strict procedural requirements for filing the right paperwork, making the proper allegations, and serving the other side (the defendant) with the lawsuit documentation -- not to mention handling the ins and outs of what can be a complex and contentious litigation process.

Learn more about How and Where to File a Personal Injury Lawsuit.

The Discovery Phase of a Car Accident Lawsuit

After the lawsuit is filed and the defendant has responded via an “answer,” a car accident case will proceed almost immediately into the “discovery” phase, where the sides request and exchange information about the accident, the plaintiff’s injuries, and other aspects of the case. This is done through written questions and answers (interrogatories), in-person sworn testimony (depositions), requests for the production of documents, and even an “independent medical examination” where a doctor of the defendant’s choosing is allowed to examine the plaintiff.

Learn more about the discovery phase of a car accident lawsuit:

Mandatory Settlement Talks, Mediation, and More

Filing a lawsuit and taking your car accident case to the civil court system doesn’t mean you’re going to trial. That’s a rarity with any kind of personal injury claim, and car accident cases are no exception.

As your lawsuit progresses through the discovery phase, the court will almost certainly schedule one or more mandatory settlement conferences where the sides are ordered to sit down and attempt to resolve the case.

Car accident lawsuits are also candidates for alternative dispute resolution (ADR) processes like mediation, where an agreed-upon neutral third party (perhaps a retired judge) tries to guide both sides to a fair resolution.

As your car accident lawsuit proceeds, you can also expect the filing of different “motions” with the court, including a “motion for summary judgment,” where the defendant asks the court to rule that the injured person has not done enough to establish liability for the accident. If this motion is denied by the court, meaning the case stays alive, the parties (especially the defendant) will likely be much more motivated to settle.

Questions For Your Attorney

  • How can I prove that the other driver was careless and that the accident was her fault?
  • Can any defenses be used to reduce the amount of damages I have to pay?
  • Can I recover money after a car accident even though I was partially at fault?

If you've been involved in a car accident within the last three years, please consider taking our car accident survey so that we can include your experience in Martindale-Nolo's 2018 Car Accident Survey. Your participation will help inform others about their situation and options before dealing with their car accident.

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