Does A Personal Injury Claim Have To Result In A Lawsuit?
By: Kevin Stouwie
Board Certified in Personal Injury Trial Law
Texas Board of Legal Specialization
I have heard this question many times throughout the years, especially when a person comes into my office for the first time. The answer to this question is not a simple ‘yes” or “no”. Instead, like so much else about the law, the answer is, “It depends.” The answer is case specific, and client specific. However, some broad general principles do apply. The purpose of this article is to help the reader understand some of the factors that go into the decision to file a lawsuit and prepare for trial.
The first issue that always needs to be considered is the statute of limitations under Texas law. A personal injury claim is governed by a two year statute of limitations in Texas. This means, as a practical matter, unless your case is either: fully settled, or filed “in court” before the expiration of the two year statute of limitations, there is no way of recovering anything at all. That is because your claim against a 3rd party would be outlawed after two years. There are a few limited exceptions to this two year rule, but not many. If you need to discuss the exceptions, you should promptly contact a qualified lawyer. The most common exception is that the plaintiff (the injured person bringing the claim) is under the age of 18 at the time the claim arises. In this situation, the medical bill portion of the claim will usually still be governed by the two year statute of limitations, but the other damages, or consequences of the claim would still be viable until two years from the minor’s eighteenth birthday.
Another common exception to the two year statute of limitations concerns cases where the injured person is injured by an uninsured or under insured vehicle. The injured person in this scenario seeks to recover money through the UM/UIM coverage under his or her own automobile insurance policy. I have written a separate article that discusses UM/UIM coverage in more detail. Instead of the normal two year statute of limitations, the statute of limitations for UM/UIM claims is four years.
When dealing with a two year statute of limitations where the client hires an attorney for a personal injury case within a few weeks or months of the two year deadline, a lawsuit is often the only option available, due to the time constraints.
Assuming the statute of limitations is not a problem in a given case, other important factors are normally examined in order to determine whether to file suit or attempt to settle without a suit. Additionally, it is popular for one to think of going to court, as going to trial. However, although the two concepts sometimes occur in the same case, they are not one in the same. Filing a lawsuit begins the process of litigating a claim, but not all litigated claims end up requiring a trial. I have found over the years that, as a general rule, the more serious the injuries and consequences of the accident, the more likely the need to file a lawsuit. Once suit is filed, the best way to achieve a fair settlement without a trial is to begin preparing every case as if a trial will be needed.
Very few serious injury or death cases are settled without a lawsuit first being filed and served on a defendant. One notable exception to this rule is cases where there is inadequate insurance coverage available to compensate the victim or the family of the victim. One of the important roles a qualified attorney will play in such a scenario is conducting a thorough analysis to see where all potential sources of liability and liability coverage might be found. Sometimes, it is much more complicated than one might ordinarily expect.
A good lawyer who has plenty of time before a statute of limitations will gather as much information about the parties, the facts of the case, the nature and extent of the injuries, and many other things before filing a lawsuit. Some cases can, and should, be settled without a lawsuit. However, every case is unique, and there will be factors in play that will be different in every case. A good lawyer must analyze these case specific factors before deciding whether to file suit, and then communicate these issues to the client so that an informed decision can be made.
Once a lawyer elects to file a lawsuit, it begins a process that can last a few months, or may last up to two years, even without a trial or an appeal. However, over ninety percent of all cases filed in court do eventually settle without going to trial, but defendants and insurance companies are not stupid. They will almost never offer a fair and reasonable settlement unless you are ready to take your case to court AND you have a lawyer with a record of proven skill and winning results. Cases do settle for a fair and reasonable amount without a trial when they are being pushed to trial by a competent attorney.
One mistake which can occur when the goal is to settle without a lawsuit is that the suit is not filed until some point after all settlement negotiations have failed. This can unnecessarily delay the process, which can put the plaintiff in a very difficult situation financially and/or emotionally. It is also worth noting that the longer a defendant or insurance company can delay settling, the longer they can keep their money and retain the interest or other benefits of having the funds on hand.
To begin a lawsuit with the goal of obtaining the best possible settlement without risking trial is generally a worthwhile goal, but unless the defendant and his/her insurance carrier knows that you are determined to take your case to trial, a fair settlement is difficult, if not impossible.
I always tell other lawyers and clients one simple rule: never, never, never suggest or say to an insurance adjuster that you are interested in an early settlement. Once a defendant knows that your goal is to settle, smaller settlement offers will be made, as the insurance carrier expects you to give up early, and at a greatly reduced price.
The best recoveries are usually only possible with an intelligent, aggressive lawyer pushing your case towards trial, especially a lawyer who has a reputation for taking cases to trial, who has a solid record of obtaining good results in the courtroom. It is wise to avoid the lawyer with a reputation for “quick” settlements. I recently saw a television commercial where a big advertising law firm had one of its “clients” on television bragging about how fast the settlement occurred. Often times these are the low settlements, which only benefit the lawyer who handles a very large volume of small cases.
This article is for informational purposes only. It is not intended to provide legal advice, as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.