If you have been injured due to the negligence of another person or entity, you may have the right to seek compensation by filing an injury lawsuit. Whether you decide to file the injury claim on your own or hire an injury lawyer, you will have to take specific legal steps.
1. Determine if You Have a Valid Lawsuit
The first step in filing an injury lawsuit is to determine whether you have a valid claim, which means that you will need to prove certain elements of your case.
For instance, you will need to prove that the defendant owed you a duty of care; that they breached their duty toward you; that their breach of duty was the proximate cause of your injuries; and that you have suffered actual injury or loss. If any of these elements cannot be proven through a preponderance of evidence, you will not win your case.
For example, if you are considering filing a car accident injury claim, you will first need to establish that the driver had a duty toward you. Proving duty of care is generally simple because all drivers have a responsibility to follow driving laws. Breach of duty can also be relatively easy to prove, assuming that the driver’s actions were unlawful (running a red light, speeding or performing any other reckless driving action).
Next, you will need to prove that their breach of duty caused your injury. If the driver ran a red light and crashed into your car, assuming that your actions did not contribute to your own injuries, you can prove that their breach of duty caused the accident. Finally, you will need to prove that you were injured or suffered loss. Injury and/or loss can be proven with medical records, employment records or car repair estimates.
2. Review the Statute of Limitations for Filing an Injury Claim
The second step in filing a personal injury claim is to verify that the statute of limitations has not expired. If you have recently suffered injury or loss, then this will not be an issue, but if you were injured more than one or two years ago, it is likely that the statute of limitations has expired and you may not have the right to file an injury claim.
3. Talk to an Injury Lawyer
After determining that you have a valid case and that you are within the statute of limitations for filing an injury case, you will need to talk to an injury lawyer. Injury lawyers can answer all of your legal questions, help negotiate the settlement, or take your case to court.
Injury lawyers can also provide information about your chances of winning your case. If you have interviewed multiple lawyers and no one is willing to take your case, it could mean that they do not think you can win, but it could also mean that they believe you should settle your case out of court or that you would be better served by filing your case in a small claims court.
4. Complete the Proper Legal Forms
Step 4 in filing a lawsuit is to complete the proper legal forms. If you hire a lawyer, they are likely to complete the legal forms for you. The forms include the civil cover sheet, a summons and a complaint.
The complaint will establish the cause of action and will list the persons involved, injury suffered and remedy expected. The complaint must be filed with the proper court. You will have to pay all filing fees. Review all requirements for filing a lawsuit before completing the forms.
5. Serve the Summons
The summons will be formally served or delivered to the defendant listed in the complaint. The defendant is given a specific amount of time to respond to the summons and complaint. Their response is called an "answer."
The answer can ask for a motion to dismiss the charges, offer an affirmative defense, or deny the plaintiff’s charges. If the defendant fails to respond to the summons, the court will generally find for the plaintiff through a default judgment.
6. Discovery is Initiated
After the court receives the defendant’s answer, they will set a trial date and initiate discovery. Discovery allows for each party to disclose evidence to the other party through depositions, interrogatories, an exchange of documentation or a physical examination of the plaintiff.
7. Hold all Pretrial Conferences
After discovery is completed, both parties may ask for a pretrial conference to discuss any issues related to the personal injury case. Most personal injury claims are settled before the case is taken to court. The pretrial conference is often where settlement negotiations are offered.
8. Go to Court
Although most injury claims are settled out of court, there are some cases where a pretrial settlement offer is not accepted or not offered. In some types of legal cases, if a settlement cannot be reached, mediation or arbitration may be required. In other cases, the lawsuit will proceed to court. If this happens, a jury will be selected and the trial will begin.