Taking Your Personal Injury Case to Court: Is Litigation Worth It?

Here’s what you need to know about civil litigation before deciding to take your personal injury claim to court. Find out when it pays to file a lawsuit.

Civil litigation is a legal process of resolving disputes between two or more parties.

Examples of civil litigation include breaches of contract, divorce and custody matters, restraining orders, and personal injury actions.

“Litigation” is just another way of saying “lawsuit.” The parties involved in a lawsuit are called litigants.

A party to a lawsuit can be an individual person, a business, or an “entity” like a homeowners’ association or government agency.

There’s a difference between civil litigation and criminal litigation. Criminal litigation is when the federal, state or local government accuses a person of committing a crime. A murder trial is an example of criminal litigation.

Civil litigation might involve a party who broke the law, like the guy who ran a red light and T-boned your car, but civil litigation is about seeking compensation for damages or failure to deliver a promised service or product.

Damages in personal injury cases can include your medical bills, rehabilitation expenses, lost wages, and your pain and suffering. You have a right to expect compensation from the party who caused your injuries.

When to File a Personal Injury Lawsuit

Depending on the type and severity of your injury claim, your first decision will be whether to represent yourself or hire an attorney.

Complicated claims including medical malpractice, asbestos poisoning, and catastrophic injuries are high-dollar cases rarely handled outside of court.

More common injury cases like car accidents, slip and falls, dog bites and premises liability claims can often be settled out of court with the at-fault party’s insurance company.

You can try to settle your claim with the insurance company or hire an attorney to negotiate on your behalf. Depending on the value of your claim, you may decide to handle your own case.

If you find yourself unable to negotiate a fair personal injury settlement, the next step could be arbitration or mediation. If those options aren’t available, your next and final step may be to file a lawsuit.

Civil litigation is a powerful tool for resolving disputes.

Lawsuits must be filed against the at-fault party, like the at-fault driver in a car accident, not their insurance company.

Keep in mind that even though you are filing suit against the at-fault party, their insurance company has a “duty to defend” their client and will send experienced attorneys to fight you in court.

Most litigants are represented by attorneys. If you choose to go it alone, you will be a “pro se” litigant. Pro se is a Latin term that means “on one’s own behalf.”

If you appear in court “pro se” you will be held to the same legal standards as an attorney, including the obligation to follow applicable rules of civil procedure.

Although most courts don’t strictly require an attorney for individuals, legal expertise is very important in complicated and technical cases.

Deciding whether a lawsuit is right for your situation requires a thorough understanding of the issues. Your decision should be objective, not based on anger or frustration.

A winning case requires strong facts, not strong emotions.

In civil litigation, whether in small claims court or a higher court, if you file a frivolous or weak case out of spite and lose, you may be ordered to pay the attorney fees and court costs for the winning party.

When you have a strong case, filing a lawsuit may prompt the insurance company to make a fair settlement offer. Or they may proceed to trial, which will hopefully result in a court verdict in your favor. A successful outcome is never guaranteed, however, and you should be prepared for the possibility of losing your case.

Deciding Where to File Your Lawsuit

Cases are litigated in a variety of courts, including small claims courts, municipal courts, county, state and federal courts, and state and federal courts of appeal.

Knowing where to file your lawsuit, known as venue and jurisdiction, is crucial. Do you file in the county where you live, where the injury occurred, or where the defendant resides or does business? Often, a lawsuit can be filed in more than one district, but your case can be dismissed if you make a mistake.

Pros and Cons of Small Claims Court

A small claims lawsuit can usually be filed in the court most convenient for you so long as it’s in the state where your injury occurred.

Each state has its own rules and monetary limits for small claims court. The amount you’re suing for must be within the court’s maximum monetary limit. For example, if the monetary limit of your state’s small claims court is $10,000, and your damages are $15,000, the maximum verdict you can receive in small claims court is $10,000.

Most small claims courts do not allow compensation for pain and suffering. You will only be able to recover money for measurable damages, like the total of your medical bills.

Small claims courts are designed to help individuals settle relatively small financial disputes on their own. The rules are more relaxed than in higher courts, and your case will be heard much sooner.

However, even though the atmosphere in small claims court is less formal than in higher courts, you still must be thoroughly prepared if you want to win.

There are some states that won’t allow attorneys in small claims court, although most do. There’s a good chance the person being sued will be defended by a lawyer, even if you aren’t.

Don’t worry. The judge won’t allow the attorney to bully you or use courtroom strategy. The only time a layperson might be on equal footing with a skilled attorney is in small claims court. If you’re honest, well prepared, and the facts are on your side, you’ll probably win your case.

An attorney from the insurance company will probably represent the defendant. In most small claims cases, if the insurance company loses less than $10,000, they won’t fight the award.  Although the company has the right to appeal the decision, it’s simply not worth it for them when it’s such a small amount.

Appeals from small claims court are often “de novo,” meaning the case starts over again from the beginning as if the trial never occurred. This is because most small claims courts don’t use court reporters during proceedings, so they aren’t considered Courts of Record.

Litigating in Higher Courts

If your injury case is complex and involves substantial damages, you will need the help of an experienced personal injury attorney to get anywhere near the amount of compensation you deserve.

High-dollar cases are filed in courts with much higher jurisdictional limits than small claims court, and knowledge of complex legal procedures is critical to success. Starting with the filing fees, it’s much more expensive to file a lawsuit in higher state courts.

Proceeding without an attorney in any court higher than small claims is a disaster waiting to happen. Higher courts follow strict rules of evidence, permit extensive pre-trial discovery, and otherwise allow attorneys to represent their clients vigorously.

Attorneys are experts who enter court prepared for a legal battle they expect to win. Representing yourself in a higher court puts you at a severe disadvantage.

Beware of Insurance Company Attorneys

When a driver purchases an auto insurance policy or a store owner purchases a business liability policy, there’s a “duty to defend” clause stating that if the policyholder is sued, the insurance company will provide legal representation.

With few exceptions, the company must provide an attorney for its insured, whether in small claims court or a higher court.

Insurance company attorneys are paid to win cases, and they’ll do just about everything in their power to win. If you decide to represent yourself in a higher court, they are likely to overwhelm you with motions, depositions, removal to federal court, and more. The judge won’t be sympathetic if you can’t keep up with the legal procedure.

In higher courts, judges strictly apply the rules of evidence and procedure. If you decide to represent yourself, you’ll be held to the same standard as an attorney. If you miss a deadline or fail to meet a time limit for a motion, you’ll be out the door with empty pockets and a folder full of unpaid bills.

As part of pre-trial discovery, when opponents in a lawsuit get information from each other, the defendant’s attorney will want to take depositions from you and your witnesses.

You’ll have to take time off work to sit in the attorney’s office and answer a barrage of questions. Depositions can take hours. Independent attorneys hired by insurance companies are usually paid by the hour, so they have no incentive to rush.

The defense will send you pages of questions you must answer within a specified time period. If you fail to respond appropriately, the defense attorney can ask the judge to hold that against your case.

If you want to get specific information from the party you are suing, you will need to know how to prepare interrogatories, requests for admission, and subpoenas to obtain private documents and financial records, and much, much more.

If you win your civil court case, there’s always a chance the other side will file an appeal. An appeal can take months, sometimes even years. You can be sure the insurance company’s attorney will take advantage of every opportunity to keep you from seeing a dime in compensation.

Before Taking Your Personal Injury Case to Court

Take the time to make sure you have enough credible evidence to win a civil trial. Whether in small claims court or a higher court, your opinion means very little. You must have proof the other party was negligent, and their negligence was the cause of your injuries.

If there is a dispute over fault, your proof must be stronger than the defendant’s. Ideally, you’ll also have witnesses to testify on your behalf.

If you’ve already visited with several attorneys who reviewed your case and decided not to accept it, that’s probably a good indication there’s not enough evidence to win. Or if there is enough evidence, the potential monetary award won’t be enough to cover attorney fees on top of your damages.

Can You Afford an Attorney?

Before hiring an attorney, you should be sure your claim’s value is high enough to cover both your damages (medical bills, lost wages, out-of-pocket expenses, and pain and suffering) and your attorney’s fees.

The contingency fee of most personal injury attorneys is 33.3 percent of a negotiated settlement, rising to 40 percent once a lawsuit is filed. Any of your attorney’s out-of-pocket costs to prepare your case will be added on top of the contingency fee.

Gather the paperwork related to your injury, including medical bills, police reports, witness statements, and photographs, then make an appointment with an experienced attorney.

After talking with you and reviewing your accident file, the attorney will be able to estimate your claim value and suggest the best way for you to proceed.

Most personal injury attorneys don’t charge for their initial consultation, so you have nothing to lose by finding out what a skilled attorney can do for you.

Video: Litigation for Personal Injury Cases

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>