INJURY SETTLEMENT IS NO SHORT PROCESS. No two personal injury cases are alike. While there may be similarities, fact patterns, issues of liability, injuries, the parties (and who may represent the parties) differ, even if slightly. For instance, let’s say there are two plaintiffs. They had nearly identical auto accidents. Both got rear-ended while stopped at the same stoplight, and in both, the other party was 100% at fault. The liability was clear. The defendant’s vehicles in both cases were traveling 15 m.p.h. Both plaintiffs, on the surface, suffered similar soft tissue injuries. However, one plaintiff was young and recovered quickly and only required a couple of doctor’s visits and a few weeks of physical therapy. The other was elderly and required months of PT and surgery. The defendant in the first case had ACME insurance who was quick to offer a fair settlement out of court. The second defendant had ABC insurance refused to negotiate in good faith. The first case resolved in a few months and the plaintiff achieved a fair settlement. The second took more than two years and required a complaint, discovery, and ultimately a trial. Both cases successfully resolved. On the surface, these cases were nearly identical. Slight differences in their circumstances impacted the trajectory of their respective cases. Therefore, it is nearly impossible to give a precise prediction of how long injury settlement in a personal injury case may take. One certainty however, is an attorney who specializes in injury settlement can assist you to navigate this very complex process.
Here is a look at the life cycle of injury settlement in a personal injury case.
PHASE I of INJURY SETTLEMENT
- You are injured
- You engage the services of an attorney (typically, though, while not a common practice, nor recommended, you may represent yourself; this narrative, however, assumes you as the injured party has engaged the services of an attorney).
- The case begins
- Your lawyer obtains as much preliminary information as possible and begins to formulate an educated opinion and strategy to maximize your recovery.
- Your lawyer lets the other party know you intend to file a claim.
- Your lawyer helps with other preliminary affairs, such as helping you apply for Personal Injury Protection.
- Your lawyer assesses any timing issues. For instance, if a case is up against the statute of limitations (usually three years from the date of the accident in Massachusetts), your attorney may file the case with the appropriate court sooner rather than later.
- Most times, however, there is time to file, and your lawyer may begin negotiations directly with the defendant’s insurance company by sending a demand letter; this opens the door to begin preliminary negotiations for injury settlement.
- In some cases, this is enough depending on the severity of injuries, the amount of treatment required, and other factors. If not, your lawyer will file the case by submitting a complaint to the appropriate court.
General Time frame: 1-8 months
PHASE II of INJURY SETTLEMENT
- Your attorney files a complaint with the appropriate court.
With most personal injury cases in Massachusetts, your lawyer will file your case in either District Court (where estimated damages do not exceed $25,000 or Superior Court where estimated damages exceed $25,000. Depending on the type of case, other Massachusetts Courts, or in some cases, Federal Courts may be the proper venue for filing. For more information on court venues in Massachusetts, please visit https://www.mass.gov/orgs/massachusetts-court-system.
- Discovery begins.
Discovery is the exchange between parties to a case of legal information and known facts of a case. It allows both sides an equal opportunity to gather information to assess a case. All parties are required to participate in discovery, and it takes many forms, most notably in civil cases, interrogatories, requests for production of documents, and depositions.
- Interrogatories are a formal set of written questions given by one party to another in advance of litigation and in many cases, settlement negotiations that the other side must answer. They can be used to clarify facts and may be used to determine what points of fact are most relevant to building a solid case.
- Request for Production asks the opposing party to produce documents relating to the case. These may include financial statements, medical records, contracts, insurance documents, photographs, videos, and other documents particular to your case.
- A deposition is the taking of an oral statement of a witness under oath before trial. It has two primary purposes: Finding out what the witness knows, and to preserving that witness’ testimony. The objective is to allow the parties to learn all the facts before the trial. In addition to the defendant and the plaintiff, parties’ attorneys may depose witnesses to the incident, experts, and other individuals relevant to building a case.
Your attorney will assist you in composing answers to interrogatories, gathering documents, and will help prepare you for a deposition if the other side chooses to depose you. Your attorney will also prepare interrogatories for the defendant to answer, prepare a request for the production of documents for the defendant to deliver, and depose the defendant and other key individuals relevant to building a strong case in your favor.
General Time Frame 3-9 months
- Court motions
In every case, parties may make various pre-trial legal motions, even in advance of discovery. These include motions to dismiss, motion to compel, motion to suppress, motion to compel, motion for summary judgment, and others.
When you are a party to an accident, and a lawyer represents you, your lawyer will both make and defend you against various motions.
General Time Frame: Ongoing
PHASE III of INJURY SETTLEMENT
- Attempted settlement
An attempted settlement is an ongoing process and takes place from the minute you engage the services of a lawyer and can go right up to the days and hours before trial. Cases can even settle after a trial has begun and before it concludes. As mentioned, initially, there may be settlement talks with the insurance adjuster and simple cases with clear liability can settle without filing suit. Usually, once you file suit, during, and after the discovery process, your attorney will continuously negotiate with the attorney representing the defendant to try to achieve a settlement without a trial. In some cases, the parties may agree to alternative dispute resolution which may be either mediation or arbitration to reach an agreement and avoid the time and expense of a trial.
In some cases, alternative dispute resolution may be favorable to a trial and parties may agree to either mediation or arbitration
- Mediation is a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute. The parties can describe the issues, discuss their interests, understandings, and feelings, provide each other with information and explore ideas for the resolution of the dispute. While courts can mandate that certain cases go to mediation, the process remains “voluntary” in that the parties are not required to agree. The mediator does not have the power to decide for the parties but can help the parties find a mutually acceptable resolution. The only people who can resolve the dispute in mediation are the parties themselves.
- Arbitration is a private process where disputing parties agree that one or several individuals can decide about the dispute after receiving evidence and hearing arguments. Arbitration is different from mediation because the neutral arbitrator has the authority to decide about the dispute. The arbitration process is like a trial in that the parties make opening statements and present evidence to the arbitrator. Compared to traditional trials, arbitration can usually be completed more quickly and is less formal. For example, often, the parties do not have to follow state or federal rules of evidence, and, in some cases, the arbitrator is not required to apply the governing law. After the hearing, the arbitrator issues an award. Some awards announce the decision (a “bare-bones” award), and others give reasons (a “reasoned” award). The arbitration process may be either binding or non-binding. When arbitration is binding, the decision is final, can be enforced by a court, and can only be appealed on very narrow grounds. When arbitration is non-binding, the arbitrator’s award is advisory and can be final only if accepted by the parties. (https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/arbitration/)
General Time Frame: This is an ongoing option but usually occurs after discovery but in advance of trial.
When a case goes to trial, decisions are made by the factfinder (which will be either a judge or jury) after testimony by witnesses and arguments by lawyers, or by the parties themselves, if a lawyer doesn’t represent them. Physical evidence, such as photographs or relevant documents, may also be entered as evidence.
After reviewing all the evidence and considering the arguments on both sides, the factfinder (jury or judge) reaches a verdict, which usually ends the proceedings at the trial court. (https://www.mass.gov/info-details/learn-about-the-court-trial-process)
Your attorney will take the time to prepare for the trial, including preparation of the case, conducting jury selection, preparing opening and closing arguments, preparing witness interviews, and preparing you for the rigors and realities of a trial.
General Time Frame: 1-4 days. Please note that trials can be longer, and the length of a trial largely depends on the complexity of your case and the legal issues in dispute.
PHASE IV of INJURY SETTLEMENT
If your case goes to trial, you are not guaranteed a favorable outcome, though your attorney will work their hardest to achieve one. When you win the verdict, the defendant will owe him or her the amount determined by the jury.
- Post-Trial Motions
The losing party may make post-trial motions, including a motion for judgment notwithstanding the verdict, a motion for a new trial, a motion for remitter, or a motion to amend the judgment. Successful post-trial motions may result in alterations to an original verdict or even result in a new trial.
If the losing party finds something legally wrong or improper about an issued verdict, they may have the right to appeal the decision. An appeal is very different than the original trial. Arguments must be in writing, and parties cannot introduce witnesses or enter new evidence. The appellate court will look at the record and decide based on whether there were legal mistakes and whether those mistakes impacted the outcome of the case. Appeals are difficult to win, and there is a heavy burden on the party appealing to prove not just that there was a legal error, but that the error was so grave that it impacted the outcome of the trial. Your attorney will work with you to appeal if there is one to be made when the verdict at trial is not in your favor or defend against an appeal made by the opposing party.
General Time Frame: 12-18 months
PHASE V of INJURY SETTLEMENT
- Collection of Injury Settlement
When you receive a favorable judgment or your case settles before a judgment, typically, your attorney will collect the judgment. Sometimes it is in a lump sum, and other times it may be broken into payments. Typically, before payment can be received, any liens on the case must be satisfied. After any outstanding and legitimate liens resolve, you will receive from your attorney a check less 1/3 of settlement or judgment and expenses.
General Time Frame: 1 week to 2 months
TOTAL TIME TO ACHIEVE INJURY SETTLEMENT AND RESOLVE A PERSONAL INJURY CLAIM CAN BE A SHORT AS A FEW WEEKS AND AS LONG AS A FEW YEARS DEPENDING UPON THE NATURE AND COMPLEXITIES OF YOUR CASE, AND YOUR ABILITY AND RESOLVE TO BE PATIENT.