Understanding more about how a personal injury lawsuit works can help injured victims and their families make informed decisions about how to proceed with their cases.
A personal injury lawsuit is filed against the liable party, or his or her insurer, to hold that party accountable for injuries caused by negligence or direct action. To file a personal injury claim, victims usually work with an attorney to gather evidence, calculate estimated damages, draft a demand letter, and negotiate a settlement. If a settlement is unreachable, the victim and his or her attorney, will file a personal injury lawsuit to let the courts decide the outcome.
Although you are not required to hire a lawyer to take legal action for injuries in Illinois, doing so will improve your chances of winning a personal injury lawsuit.
How a Personal Injury Lawsuit Works in Illinois
If you filed a claim and the insurance company is not resolving it to your satisfaction, it is probably time to hire a personal injury lawyer. If you suffered an injury because of someone else’s negligence, you are entitled to receive compensation for your losses under Illinois personal injury law. Unfortunately, insurance companies rarely pay fair compensation for injuries and losses without a fight. In fact, most high-value personal injury lawsuits involve negotiating with insurance companies, meeting confusing deadlines, sorting through a tangled web of insurance companies and liable parties, and even assistance from accident investigators and medical experts.
When to File a Personal Injury Lawsuit in Illinois
A personal injury lawsuit should be filed any time negligence results in serious injuries sustained by a victim. As a general rule, filing your lawsuit as soon as you have an injury is advisable. Generally, Illinois only allows you to take legal action up to two years from the accident date. This period is called the statute of limitations.
There are a few exceptions to the statute of limitations for personal injury lawsuits in Illinois. Victims who suffer personal injury because of medical malpractice are allowed up to four years from when the damage occurred. However, it is better to file your lawsuit at least six months before the statute of limitations expires to give your attorney plenty of time to evaluate your case and create a plan of action. If you wait too long to take legal action, you risk forfeiting your right to recover compensation altogether.
There are 24 circuit courts where you can file a personal injury lawsuit in Illinois. You can only file your personal injury lawsuit in the county where the court has complete legal jurisdiction.
Preparing Your Lawsuit
Sufficient preparation for your lawsuit ensures you have a better chance of winning the case. One of the more common reasons that lead to losing a personal injury lawsuit is insufficient preparation for the suit. Below are a few things you need to know about preparing your personal injury lawsuit.
First, you need to know the legal elements present in your case. All personal injury lawsuits fall under tort laws. Tort laws have three distinctive classes, depending on the circumstance behind the claim:
- Intentional torts
- Strict Liability
Most personal injury lawsuits in the country fall under negligence. Negligence exists when a party fails to take reasonable care or action to prevent harm to another. Strict liability claims more commonly apply in cases of defective products. These claims exist when a party is guilty of causing harm, regardless of the intention behind his or her actions. Finally, intentional torts exist when a party purposely causes harm to another.
Your injury attorney will analyze your case, determine the type of tortuous act committed by the liable party, and advise you about how to proceed.
In addition to understanding the foundations present in your claim, you will need to complete multiple filings. At the fundamental level, you need to fill out three primary forms that will establish your lawsuit in a court of law:
- Civil lawsuit cover sheet – The document that provides the court with your basic information
- Appearance form – Specifies your appearance to the court and your personal injury lawyer.
- Summons – A record that notifies the defendant of the lawsuit you have filed against him or her.
What Can I Expect During My Personal Injury Lawsuit?
The process of a personal injury lawsuit can vary depending on the case’s specifics and the legal system in the jurisdiction where you file the claim. However, some general steps are common to many personal injury lawsuits:
- Pre-litigation: Before you file the lawsuit, you (the plaintiff) may send a demand letter to the defendant outlining your injuries and damages and requesting a settlement. If the defendant does not respond or offer a satisfactory settlement, you may choose to file a lawsuit.
- Filing the lawsuit: Your personal injury lawyer will file a complaint with the court, outlining the allegations and the damages sought. The defendant will then be served with the complaint and be able to respond.
- Discovery: Both sides will engage in the discovery process, during which they can request information and evidence from the other side. It can include depositions (questioning parties and witnesses under oath), requests for documents, and requests for admissions.
- Pre-trial motions: You may also file pre-trial motions, which are requests for the court to make certain decisions or take specific actions before the trial.
- Trial: If the case does not settle, it will go to trial, where both sides will present their evidence and arguments to a judge or jury.
- Judgment: After the trial, the judge or jury will decide on the case’s outcome, and if you are successful, you will be awarded damages.
- Appeal: If either side is unhappy with the case’s outcome, they may have the right to appeal the decision to a higher court.
The level of development of your lawsuit will depend on the specific circumstances of your personal injury. A lawsuit may settle at any time during the legal process.
Damages Available in a Personal Injury Lawsuit
There are two primary categories of damages available in a personal injury lawsuit. These are compensatory damages and punitive damages. These parts of a personal injury settlement are divided up by the intention behind them.
Once the court determines beyond reasonable doubt your injuries were caused by the accident, you will have the right to be compensated. Compensatory damages are awarded with the intention of making the plaintiff as close to whole as possible compared to his or her state before the accident.
Simply put, compensatory damages intend to cover the cost you incur during or as a result of the injury. Compensatory damages could also cover abstract afflictions, like emotional distress. You might find that you have high blood pressure, PTSD from the accident, or reduced capacity to continue your work after the injury. Your injury lawyer must consider these factors to ensure you are fairly compensated.
Compensatory damages are divided into two primary categories: economic and non-economic damages.
Economic damages are awarded based on the tangible, financially-tied costs you incurred as a result of your injuries. Typically, these are easier to prove, as they are demonstrated with medical bills, receipts, and wage statements. The precise damages available in your personal injury claim may vary. However, claimants are typically awarded damages to compensate for initial medical treatment bills, long-term care or treatment costs, costs for prescriptions or medical equipment, modifications made to a home for disability accommodation, and lost wages or reduced earning capacity.
The consequences of a personal injury accident don’t always have an established financial tie. In some cases, intangible damages may be suffered by a victim. These damages include pain and suffering, loss of consortium, emotional trauma, mental illness, and loss of quality of life. Though harder to quantify, these damages are calculated by the courts using a multiplier method. Under this method, the value of the economic damages are multiplied by a specified number to determine the value of the non-economic damages.
Punitive damages are awarded to you to punish the wrongdoer, rather than compensating you for your losses. They are granted to you in favor of punishing your offender. These damages are not awarded as often as compensatory damages in a personal injury claim. Typically, they only apply in cases involving egregious behavior by the defendant.
Punitive damages deter the defendant and other individuals who may behave similarly from conducting themselves in a manner that led to the lawsuit in the first place. They exist with the intention of preventing future harm and further lawsuits.
Punitive damages are typically coupled with compensatory damages if the court establishes that the defendant acted egregiously. You will find that punitive damages usually apply in lawsuits filed under tort law, compared to those brought in on a contractual basis.
When Is a Personal Injury Lawsuit Necessary?
A personal injury lawsuit is not always necessary following an accident. In fact, many personal injury claims settle before ever making it to court. The process to file a lawsuit is much lengthier when compared to a claim, as you need to establish the facts of the lawsuit accurately and make additional preparations before proceeding to litigation.
In most cases, insurance companies look to settle before the issue becomes a lawsuit to avoid incurring additional costs. Settling a claim may be appealing to claimants as well, since medical bills create financial pressure and a lengthy legal battle can be intimidating.
There are two primary reasons why filing your injury lawsuit is necessary:
- When the statute of limitations is approaching
- When the insurance company involved in the case fails to make an acceptable offer
Whatever the reason, the litigation process begins once you file a personal injury lawsuit.
Expiration of the Statute of Limitations
One common reason for filing a personal injury lawsuit is when the statute of limitations on the case is fast approaching. In Illinois, the statute of limitations for a personal injury case is two years. There are a few specific exceptions, but this is the general rule for most personal injury cases.
Often, victims will spend the initial period after the accident pursuing treatment and recuperating. Medical treatment might take days, weeks, months, or years, depending on the severity of the personal injury. You should file a lawsuit at least six months before the expiry of the statute of limitations to ensure you preserve your right to recover compensation.
Unacceptable Settlement Offers by the Insurance Company
You can also file a personal injury lawsuit if the insurance company does not submit an acceptable settlement offer for your injury.
Insurance companies put their own profits ahead of people, and they try to avoid losing money at all costs. For instance, the insurance company can accuse you of causing the accident that injured you, they will likely try to minimize your injuries, and they may even say that your injuries already existed. They can also argue that the treatment provider overcharged for your service or find other inconsistencies that will ensure they pay as little as possible.