In personal injury law, a claim is an abstract legal right to compensation arising out of an auto accident, medical malpractice, or some other injury-causing event. A lawsuit, by contrast, is a legal procedure that you can use to turn your claim into cash. Although all personal lawsuits are based on claims, most personal injury claims never mature into lawsuits.
Claim Resolution: The Litigation Route
One way to resolve a personal injury claim is to file a lawsuit. Filing a lawsuit requires you to complete the following procedure:
- Draft a formal Complaint. Many formal and informal requirements apply to the drafting of this complex legal document, which you’ll submit to the court to start the process.
- Pay the applicable filing fee to the court clerk. The amount of the filing fee depends partly on how much money you are demanding from the defendant.
- Arrange for a third party to personally deliver the Complaint and a Summons to the defendant. This is known as service of process, and you cannot do it yourself. To comply with the statute of limitations, you must get to this point in the lawsuit within two years of the accident you are complaining about.
- The defendant must file a formal Answer in response to your Complaint. If they don’t, you win a default judgment.
- Both parties undergo the pretrial discovery process, whereby each party demands evidence that is in the other party’s possession.
- The parties file various motions with the court—a motion to suppress evidence, for example, or a motion for summary judgment. Meanwhile, the court will probably be pushing the parties to settle their dispute out of court.
- The court schedules a hearing.
- The parties will select the jury through a competitive process known as voir dire.
- The court will hold a trial, and the jury will render a verdict. Most trials include only one hearing.
The main advantage of litigation is that a jury might award you more money than a defendant would ever agree to. The main disadvantage is that litigation typically takes more time and money than negotiation.
Claim Resolution: The Negotiation Route
Personal injury claimants resolve many more claims through negotiation than through trial. The negotiation process typically works something like this:
- You send a demand letter to the defendant or, more likely, to their insurance company. The demand letter explains the claim, justifies it, and demands compensation. Typically, the letter will not ask for a specific dollar amount.
- The defendant rejects your demand for compensation. Alternatively, the defendant might issue a woefully inadequate settlement offer.
- You try various means of pressuring the defendant to settle. For a while, the process might resemble a game of ping-pong, with volleys of offers and counteroffers.
- The parties agree to a settlement amount.
- The parties draft a settlement agreement. The agreement obligates the defendant to pay you a certain amount of money. In exchange, you promise to permanently drop all possible claims arising from your injury (this is known as a release).
Of course, this process ignores the more informal preliminary process of gathering evidence before even sending a demand letter. Nevertheless, one of the main advantages of negotiation is that you might resolve your claim within a few weeks to a few months. Negotiation could also save you money.
The Hybrid Route: Mixing Negotiation With Litigation
One way to resolve a personal injury claim is to use the hybrid route:
- Attempt negotiation;
- File a Complaint with a court if negotiations break down;
- Engage in pretrial discovery to gather evidence;
- Return to the bargaining table armed with the evidence you obtained during pretrial discovery; and
- Reach a settlement.
The hybrid route is an extremely common way of resolving a personal injury claim. Its main benefit is that it takes advantage of the best aspects of negotiation and litigation. You can try to resolve your claim the easier way, through negotiation, but you still have the option to appeal to a court if negotiations fail. That gives you “two bites at the apple” as circumstances evolve.
Hire an Experienced Chicago Personal Injury Attorney
You are probably going to need a Chicago personal injury attorney to help you negotiate a claim just as much as you might need one to file a lawsuit for you. Lawsuits are more obviously tricky than negotiations are. Nevertheless, the hidden complexity of settling out-of-court claims is what makes them dangerous. A seasoned personal injury lawyer might be able to multiply the value of your claim.
Most personal injury lawyers will charge you nothing in up-front legal fees and nothing at all unless they win or settle your case. If they do so, they take a certain percentage of your compensation (typically about a third) in legal fees. This percentage is typically higher if the case proceeds all the way to trial.