Personal Injury

The Basics of a Personal Injury Lawsuit

By David Goguen, J.D., University of San Francisco School of Law
Your personal injury claim may settle at any time, but if you take your case to court by filing a personal injury lawsuit, here's what you need to know.

If you've been injured in any type of accident where someone else's misconduct played a part, it's possible that you could end up filing a lawsuit in order to get compensation for your medical bills and other losses (called "damages" in legalese). In this article, we'll cover the basics of what to expect when you take your case to court so that a personal injury claim becomes a personal injury lawsuit.

Personal Injury Claims Versus Personal Injury Lawsuits

One of the first things to keep in mind is that you don't need to file a personal injury lawsuit in order to recover compensation for your losses after an accident or injury. It's quite possible -- and in most situations, it's actually more likely -- that your case will reach an agreed-upon settlement outside of the court system. In fact, the vast majority of personal injury claims are resolved via settlement between the at-fault party's insurance company and the person who was injured. (Learn more about personal injury claims versus personal injury lawsuits.)

Strict Lawsuit Filing Deadlines Apply

If you can't reach a fair out-of-court settlement with the party who caused your injury, and you and your personal injury lawyer decide that taking your case to court makes sense, you'll need to pay attention to the statute of limitations for personal injury lawsuits in your state. This is a law that sets a strict deadline -- expressed in years -- on your right to file a lawsuit against the person or business that caused your injury. Time limits vary among states from one year to six years, and the "clock” starts on the date of the underlying accident.

Many states have set a two-year filing deadline (including California, Georgia, Illinois, and New Jersey) for personal injury lawsuits, while others have passed three-year limits (including Maryland, Massachusetts, Michigan, and New York). Whatever the deadline is in your state, miss it and you've almost certainly lost your right to bring your personal injury case to court at all (unless some rare exception applies to effectively extend the filing deadline).

Learn more about time limits for filing a personal injury claim.

You Must File and "Serve" the Right Paperwork

In order to bring a lawsuit against someone who injured you, you must file your complaint and summons in the proper branch of state court (usually that means the jurisdiction where the injury occurred, or where the defendant lives or does business.) The summons is a notice for a defendant to appear in court to respond to the complaint, and both documents must be properly "served" on the defendant. Learn more about the personal injury complaint and how and where to file a personal injury lawsuit.

You Must Prove Certain Elements

The legal concept of fault (liability) in most kinds of personal injury claims is usually based on a legal concept known as “negligence,” which typically requires proof that:

  • the defendant owed a legal duty to the plaintiff

  • the defendant breached that duty, and

  • the breach of duty caused harm to the plaintiff.

To illustrate how these elements look in real life, the plaintiff in a car accident case would allege, in his or her personal injury complaint, that:

  • the defendant had a legal duty to operate his or her vehicle in a reasonably safe manner, and to obey all traffic laws

  • the defendant breached that duty by running a red light, and

  • the plaintiff suffered a concussion and broken ribs in the resulting collision.

A Personal Injury Lawyer Can Help

In all but the most minor personal injury cases, having a personal injury lawyer on your side can make a big difference in terms of outcome. Unless fault is undisputed and the other side is willing to come to the table with a fair offer, you're going to have to build a strong case and be ready for a fight. At that point -- not to mention once a personal injury lawsuit is filed -- you need the experience and expertise of an attorney. Learn more about selecting the right personal injury lawyer.

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