It is a scientific fact that the unknown causes stress, anxiety, and fear in most people. The unknown causes the mind to race and the imagination to run wild.
That is the reason why we, as successful and experienced West Palm Beach car accident lawyers, believe it is important to share our experience, knowledge, and insights acquired over decades of handling traffic accident cases in South Florida.
It will demystify the process through which your claim will travel as it makes its way through the legal system by briefly explaining what you can expect as your case proceeds.
Although each victim and personal injury case are unique given the specific facts and circumstances involved, there are some basic elements and steps that are common to practically every personal injury lawsuit. These common steps are summarized below.
Step 1: Investigation
Step 2: Demand Letter
Step 3: Negotiations
Step 4: Filing a Lawsuit
Step 5: Mediation
Step 6: Going to Trial
Step 7: Appealing the Verdict
After initially accepting a case, an experienced personal injury lawyer will launch an in-depth investigation to determine whether the facts and circumstances genuinely support a claim for damages. During this investigative process, the lawyer will want to answer three critical questions.
- Which party or parties were at fault? This determination can get quite tricky. It is not as simple as merely identifying who received a ticket from the police. Even if the other party was issued a ticket, that party’s insurance company may still attempt to place the blame on the victim for causing or contributing to the accident.
To complicate matters further, Florida is a comparative negligence state. This means that assignment of fault for an accident is not necessarily an all or nothing proposition. Instead, fault for an accident is apportioned among all parties involved based upon their respective contributions to the accident. For example, a person claiming to be the victim in an accident may be deemed to be 25% at fault with the accused offender 75% at fault. Naturally, as the victim’s degree of fault increases, the potential damage award correspondingly decreases.
To get a rough idea of who was at fault and the relative degree of fault for each party, the lawyer will want to have the vehicles involved examined; the scene of the accident inspected; and witnesses interviewed. Evidence can get lost and degrades over time, and witnesses’ memories fade as time passes. Accordingly, it is extremely important to launch the investigation as soon as possible following the accident, which in turn means victims who intend to file a lawsuit should engage an experienced lawyer at the earliest possible date.
- Were there injuries, and if so, were they caused by the accident? It is absolutely essential to document any injuries that were caused by the accident. Injuries are most often documented through the use of physician’s evaluation; medical records both prior to and after the accident, and medical bills.
- Is there insurance available to provide compensation? An experienced lawyer will seek to identify all the potential sources of compensation for accident victims. The lawyer will examine the insurance coverage of all at fault parties, including the person who was driving the vehicle; the owner of the vehicle (if different than the driver); and, if applicable, the employer. The lawyer will also investigate all other possible insurance that may be available to the victim such as uninsured motorist coverage, personal injury protection, and health insurance.
Lawyers who specialize in traffic accident cases know all the types of insurance potentially available to compensate accident victims as well as how best to proceed against each type of insurer and type of coverage.
The demand letter in a personal injury case serves to notify the insurance company of the victim’s claim and acts as the starting point for as well as primary focus of negotiations. Professionally prepared and effective demand letters together with the necessary supporting documentation can easily be hundreds of pages in length. At a minimum, the demand letter should cover the following: effective demand letters together with the necessary supporting documentation can easily be hundreds of pages in length. At a minimum, the demand letter should cover the following:
- A summary of all the facts and information regarding the victim’s claim
- Victim’s rationale and legal theory explaining why other party is liable
- Detailed description of injuries sustained
- Detailed description regarding medical treatment and expenses
- Detailed description of all income lost
- Detailed description of all other types of damages and losses sustained
- A demand for a specified dollar amount to resolve the claim
Generally, after the insurance company has evaluated the victim’s claim via the demand letter and supporting documentation, it will respond in one of three ways.
- The demand is accepted—in this scenario, the insurance company agrees to the compensation requested in the demand letter, and the settlement proceeds to conclusion. However, it is rare for insurance companies to agree to pay the amount requested without some negotiation.
- A counteroffer is made—in this scenario, the insurance company offers the victim an amount less than the amount requested in the demand letter. The victim then consults with his or her lawyer and must decide whether to accept the counteroffer; continue to negotiate, or file a lawsuit. Although the lawyer will advise the victim of the strengths and weaknesses of the case and make recommendations, the ultimate decision is always up to the victim.
- Claim denied outright—although rare, the insurance company may deny the claim outright and refuse to pay anything. This response generally occurs only when the claim is not supported by any evidence.
Most cases are settled between the parties themselves before this step in the process. However, in the event the victim rejects the insurance company’s highest offer during negotiations, the next step is to file a lawsuit. The filing of a lawsuit results in the case being scheduled for trial.
Mediation is a process involving a neutral mediator, typically a retired judge or lawyer, who assists the parties in exploring the issues in the case. The mediator helps facilitate discussion between the parties and attempts to guide them to finding their own solution in an effort to avoid going to trial. The mediator generally does not render a decision.
If the parties reach a settlement during mediation, the insurance company will transfer the agreed upon amount to the victim within a couple of weeks, and the lawsuit will then be dropped. At that point, the case is over. In the event the parties are unable to reach a settlement during mediation, the case moves forward and will go to trial.
In Florida, nearly all personal injury cases will be ordered to mediation by the judge presiding over the lawsuit prior to a case actually going to trial.
If the parties cannot reach a settlement, then the case goes to trial. The case will be presented to a jury consisting of six jurors and two to three alternates (or sometimes just the judge without a jury), and they will render a verdict on liability and damage awards, if any. It is nearly impossible to predict what a specific jury will decide.
This uncertainty provides strong motivation for the parties to settle the case before leaving it in the hands of an unpredictable jury. In addition, taking a case to trial is very costly. Trying a case can easily cost tens of thousands of dollars, and it is not unheard of for trial costs to exceed $100,000. The combination of uncertainty and high costs explains why most personal injury cases are settled before going to trial.
A party who is unhappy with the final verdict at trial can seek to appeal it. However, an unhappy party does not have an automatic right of appeal. Generally, there must be a legal basis for the appeal, i.e., an alleged material error that precluded the party from receiving a fair trial. The fact a party is simply unhappy with the verdict itself is not a sufficient basis for an appeal.
In contrast to the trial where the goal is to make determinations regarding facts in dispute, the purpose of an appeal is to find fault with the trial judge’s rulings, the jury verdict, and/or the conduct of opposing lawyers (but not to retry the facts). It is important to understand that an appeal is not a retrial or a new trial. An appeal is based upon legal arguments that there were procedural mistakes and/or errors in the trial judge’s interpretation of the law during the trial. If the appellate court decides that there were serious errors present at trial, the verdict may be reversed, and the appellate court will usually send the case back to the trial court and direct the court to:
- Retry the case
- Modify or correct the judgment
- Reconsider the facts, review additional evidence, or reconsider the case, bearing in mind a recent decision by the appellate court
The appeals process can literally take years, and if a new trial is ordered, the whole trial process begins yet again, which can then drag on for additional years. This is another reason why most accident victims decide to settle if a fair and reasonable amount is offered. Settling the case provides certainty and immediacy with respect to compensation. That is, the victim knows precisely how much he or she will receive and when (typically within a couple weeks of the settlement being finalized). In contrast, if the case goes to trial, the possibility exists that the verdict will be for an amount less than the settlement offer (maybe even no award at all). Further, even if the damage award turns out to be more than the settlement offer, it may be years before the victim ever receives the money if the other party appeals.
Contact Us Today for Your Free Case Evaluation
Don’t try to take on the insurance companies by yourself—get one of our experienced West Palm Beach personal injury lawyers on your side and working hard for you. We’ve been helping car accident victims like you for over 20 years, so you can trust our experience, compassion, and results.
If you don’t need a lawyer, we’ll tell you. If we can help, we’ll get started on your claim immediately with no upfront costs and no lawyer fees unless we recover compensation for you.