Why is it important to file suit ASAP in your accident case?

Setting a trial date is the single most important action in an injury case. It motivates the at fault party and their insurance carrier to negotiate a fair settlement in your case and shows them that your attorney is confident enough in you and your case that they are more than willing to take it to a trial.

Due to insurance companies taking a very aggressive stance in settling cases, efforts to negotiate a reasonable settlement are always a worthwhile endeavor but are sometimes not achievable.  Certain insurance companies are notorious for making unreasonably low settlement offers, no matter how extensive the injuries are and how clear the issue of liability can be decided.  Often these insurance companies use pre-lawsuit settlement negotiations to find out as much as they can about your Tennessee injury case.  They try to discover as much as possible about your injuries, your medical treatment, your physician, the source of your medical bill payments, your background, your attorney, and even your ability to ride out the financial storm of a lawsuit.  All of this is done with no intention of settling your case without a lawsuit being filed.  For this reason it is almost always advantageous to file the lawsuit and continue negotiating the claim.

Once the lawsuit is filed, the judge will set certain deadlines that will keep the case moving forward.  These deadlines are contained in a written order of the court called a scheduling order or a case management order.  This order usually contains a trial date.  It has been my experience that setting a trial date is the single biggest motivating factor in procuring a settlement with the insurance company.  They know they that the only way you can actually force them to pay you the money you are owed is through a trial.  Otherwise, the insurance company can keep their money invested and increase their profits—again, insurance companies are in business to make money, so profits are what the insurance company truly cares about, not you or your family’s well being.

The lawsuit is commenced by the injured party filing with the court a document called a “complaint” and serving a copy of the complaint on the at fault party accompanied by a summons.  The injured party is called the “plaintiff.”  The at-fault party is called the “defendant.”  In Tennessee, you generally have onlyone year in which to file suit.  This deadline is called the “statute of limitations.”  The statute of limitations, of course, like most laws has its exceptions, but you should never assume that an exception will apply in your case.  The safest course is to assume you have only one year to file your lawsuit.

It is also very dangerous to wait to hire an experienced personal injury attorney until the last few weeks or days before your time to file suit expires.  First of all, it is very dangerous for you or an attorney to wait until the statute of limitations has almost expired to file suit.  There can be problems with getting the defendant identified or served.  Also, an experienced personal injury attorney will never file suit without fully investigating the facts of the case.  In fact, attorneys in Tennessee have taken an ethical oath not to file suit until all of the alleged facts have been reasonably investigated.  For this reason, many experienced attorneys—including myself—will not accept a case where there may not be sufficient time to thoroughly investigate the case before filing.

Once the lawsuit has been filed and the defendant has been served, both sides engage in what is called the “discovery” process.  In the discovery process, each side investigates and tries to learn (“discover”) the facts, witnesses and expert proof that the other party intends on presenting at trial.  During the discovery process each side will ask their adversary written questions called “interrogatories,” and askverbal questions during a “deposition.”  These questions are asked under oath just as if they were asked during a trial.  Each party will also require the other party to “produce” (that is, turn over) documents such as medical, educational, employment and/or income tax records.  These documents are requested through another form of discovery called a “request for production of documents.”

The discovery process can take months to complete.  This largely depends on the length of your medical treatment and the complexity of the case.  For instance, the defendant usually will not want to take your deposition until you have completed your medical treatment.  That is because the insurance company’s lawyer will want to evaluate your condition after you have fully recovered, not before.

Once discovery is finally complete and both parties know what evidence each will have at trial, the parties often re-enter settlement negotiations.  Sometimes the parties will agree to go to a settlement conference process where the judge will try to get the parties to come to an agreement prior to trial.

There is also a growing trend in Tennessee to engage in “alternative dispute resolution” (ADR).  There are two types of ADR:  “mediation” and “arbitration.”   Both are usually voluntarily entered into by the parties, but there are several differences between the two.  A major difference between the two is whether or not it will be binding on the parties.  Mediation usually is not binding (unless a settlement is reached) and arbitration can be either binding or non-binding on the parties.

Another major difference is in how the two processes work.  Basically, in a mediation an independent third party (the “mediator”) tries to facilitate a settlement by informing the plaintiff of all of the bad points of his or her case and emphasizing to the defendant all of the good points of the plaintiff’s case.  The mediator will also emphasize practical considerations to think about when considering settlement, such as the benefits of you being in control of your settlement for a known amount versus going to trial and facing a jury verdict where you have no control of what the jury will feel your case is worth.

In contrast to a mediation, an “arbitration” is more like a mini-trial in front of an independent third party (the “arbitrator”) who will actually decide the value of your case after hearing all your arguments and the potential proof that would be heard at trial.  Unlike mediation, the parties in arbitration do not choose the ultimate settlement amount, the arbitrator does.  Arbitration is normally not favored by personal injury attorneys and is more commonly used in business to business litigation.  As a result, many arbitrators tend to be more pro-business (i.e. defense/insurance company) minded and less likely to see a personal injury case from the perspective of the typical personal injury plaintiff.

If a settlement cannot be reached after the discovery phase has ended, the case will proceed to trial.  The parties have a choice to either have a judge or a jury decide their case.  In Tennessee, either party may request that the case be tried by a jury.  This “jury demand” must be made in a timely manner to ensure a trial by jury.  While the judge still decides legal issues (like objections to evidence, etc.), the jury will hear the evidence and decide the factual issues of the case—including who is at fault and how much compensation the injured party receives for their injuries and other damage.