Understand What Happens When Your Attorney Files a Lawsuit For You
Unfortunately, in many cases today, attempting to negotiate with the insurance company BEFORE filing suit can be a waste of time. Insurance companies just use pre-suit negotiation to attempt to find out as much about you, your lawyer and your doctors as possible. Pointless negotiation wastes time. Your case gets older, witnesses start to forget things, you stop treating, and the insurance company earns interest on your money. AFTER filing suit, the case is often magically “reassigned” to a new adjuster that wants to take a “fresh look” at the case and see “if further expense of litigation can be avoided”. If I accept your case, it is because I think you have a meritorious claim and deserve a jury trial. I usually give the insurance company one brief opportunity to settle, and then file suit. I am still happy to negotiate if the insurance company wants to (and most cases do settle at some point before trial), but since it takes so long to actually get the case to trial, at least we have started down that road.
While the statute of limitations in Florida for negligence claims is four years, I prefer to have the litigation started before the end of the first year. While there can be legitimate reasons for delaying filing suit, waiting until the last minute is dangerous. Some people wait until the last minute in hopes of settling with the Insurance Company. There are some attorneys that NEVER file suit. If time is running out, they panic and look for someone else to file suit for them. Sometimes clients wait until the last minute to find a lawyer. I’ve been approached many times with cases that need to be filed that same week! I turn them down. I lead a balanced life, and don’t need to take on the problems of other attorneys or claimants that haven’t done anything for four years! Their inaction is not going to become by crisis!
Ok, so what happens when the decision to file suit is made? Once the lawsuit is filed, you become the “Plaintiff” and the person you have sued is the “Defendant”, and both sides engage in a process called “discovery”. Each party is allowed to investigate what it is the other side will say at trial and what the evidence is. (if your attorney is ever “truly” surprised at trial, then he didn’t do a good job with discovery.) Unless you are bringing a PIP suit or suing your own Insurance Company under your UM (Uninsured/Underinsured Motorist) coverage, you are generally not suing an insurance company. You sue the guy that was negligent. His insurance company will hire a defense lawyer and call the shots, but you NEVER see the insurance company at trial. I am not even allowed to mention the word “insurance” during trial! The jury is supposed to think that any judgment we get will have to be paid by the defendant. The insurance company thinks this is an advantage because they can hide in the background, especially if you are suing someone that looks like they don’t have two nickels to rub together. But in my experience, juries are pretty smart, and they know we wouldn’t be wasting our time and money in court if there wasn’t insurance involved to pay the claim.
During discovery, the other side will be permitted to access your medical records and work history, including your income history. You may have to give a deposition under oath (where you are asked questions by the other lawyer and a court reporter writes down what everyone says) and submit to a medical exam by a doctor of the defendant’s choosing. The defendant will also be required to answer written and oral questions about his own background and give sworn testimony about the incident at issue. Most of the medical doctors will also be deposed.
When discovery is complete, a “Mediation” is usually required by the court. This is a settlement conference where a mediator (usually another attorney or retired judge) gets the two sides together and tries to work out a settlement agreement. If a settlement is reached the case is over. If not, an impasse is declared and the court then gives you a trial date.
Jury trials can be as short as a couple of days to as long as a couple of weeks (in some cases months), but on average, an auto accident case can usually be tried in three or four days. You and your doctors will testify, and the defendant and their doctors will testify. Sometimes each side uses expert witnesses for accident reconstruction or economists to prove lost wages. The lawyers make opening and closing statements and examine all of the witnesses. A jury of six decides the case and returns a verdict at the end of the trial. (Trials are actually a lot of fun for me, but I can assure you, because of the stress, most clients do not enjoy the experience. Of course, a big verdict helps!) That concludes your case, unless an appeal follows. If you win, the judgment is usually paid by the Insurance Company within a few weeks.
So in summary, to get the best recovery, it is often necessary to file suit. This will include filing the complaint, engaging in discovery and finally trying your case in front of a jury. The whole process can take more than a year to complete, but most cases do settle at some point along the way.