When to Consider Legal Action: Should I Sue After a Car Accident?

Use these links to jump to different sections:

• What Steps Should I Take Before Filing a Lawsuit?
• How Is Fault for a Motor Vehicle Accident Determined?
• What Are the Steps for Filing a Lawsuit?
• Are There Better Alternatives to Filing a Lawsuit?
• Find an Experienced Attorney Before Deciding to Sue

With all of the law firm and attorney advertising, it would seem like pursuing legal action is a required and standard protocol after experiencing a car crash. However, this isn’t the case. While you are within your legal rights to file a lawsuit, it may not always be the best choice for car accident victims. Speaking with a personal injury lawyer will help you understand your options so that you can make an informed decision for recovery.

What Steps Should I Take Before Filing a Lawsuit?

Your health should be your priority. Seek medical attention first. A doctor will diagnose your injuries and provide you with a treatment plan. This documentation can become evidence for your insurance claim and lawsuit later. Your medical expenses, property damage, lost income, and other damages can all be named in your auto accident injury claim or later lawsuit.

It is also a good idea to report the accident to law enforcement. If the injuries and property damage are past the statutory threshold, you may be legally required to do so. Reporting the accident also creates a third-party record of the accident at the time of the accident. This police report can help you validate your version of events.

Before you file a lawsuit, you should notify the insurance companies and begin the claim process. Then, speak with a personal injury attorney for a free legal consultation. The lawyer will advise you on your claim’s strength and potential value.

Ann Jacobs, a personal injury lawyer representing car accident victims in Milwaukee, Wisconsin, explains the importance of early legal consultation. “It happens a lot that I have clients come in who have signed an agreement, or they’ve cashed the check, not fully realizing what it was that they got themselves into. It usually happens because their insurance company contacted them within a few days of the accident and made some sort of claim, such as, ‘We’ll pay for your care and treatment for six weeks.’ Well, if you’re seriously injured, six weeks is just the beginning.”

In addition to ensuring you get the compensation you’re entitled to, you can also use the free case evaluation to decide if pursuing a personal injury lawsuit is the best course of action for your situation.

How Is Fault for a Motor Vehicle Accident Determined?

Several factors are considered when determining who is at fault for an accident. Understanding the process is crucial because your fault percentage can impact your ability to succeed with your car accident lawsuit.

Some states are no-fault, where you will file with your own insurance company. Other states are fault states. In these states, the insurance adjuster investigates the accident to determine who the at-fault party is. The insurance company offers a settlement amount based on the determined fault percentage.

1. Police Report

The easiest method for determining default is to look at the police report. The at-fault driver may have violated a traffic state law and received a ticket or citation. Breaking the law strongly indicates that the driver is at least partially at fault for the accident. Examples of common citations include speeding, ignoring posted signage, or not using proper driving procedures.

2. Physical Evidence

The physical evidence also contributes to determining who is at fault. The physical damage to the vehicles is hard to argue with. This could include pictures and videos of the accident scene. There could be skid marks on the pavement or tire marks in the grass next to the road. It could also include the repair quote for returning the vehicle to its original condition.

Physical evidence can also include bodily injury, such as medical treatment and diagnosis records. Jacobs stresses the importance of documenting all physical injuries with her clients. “One of the things I really tell my clients when they’re first contacting me is the importance of going through all of their injuries with their doctor—every injury that they have, not just the one that bothers them the most,” she says. “Because at the end of the day, we don’t know which of their injuries is going to be the one that lingers.”

3. Witness Statements

Auto insurance companies will also use witness statements to determine what happened. This starts with the parties involved in the accident or anyone who was a passenger in any of the vehicles. However, these statements can be biased due to their interest in determining fault.

Typically, the involved parties will have differing versions of events. An independent party who witnessed the accident can provide unbiased clarity on the events that took place.

What Are the Steps for Filing a Lawsuit?

If settlement negotiations fail, then you have the option to sue someone. While you may initially sue the other driver, their insurance will step in on their behalf. If there is an uninsured motorist, you will file a lawsuit against the other driver.

The first step to filing a lawsuit is to file the initial documents with the clerk of court. Your car accident lawyer can help you do this before the statute of limitations. It is advisable to have legal representation if you decide to file a lawsuit. The statute of limitations is just one of many time limits that you must adhere to protect your legal rights. Once you file your complaint, you will have the defendant served. This puts the other parties on notice that they are getting sued.

All named parties will enter the discovery phase. The purpose is to gather evidence to support your claim. The other parties will do the same to support their position. This could include collecting physical evidence, contacting witnesses, or arranging for expert witnesses. It will also likely include depositions, where the attorneys will question the parties.

Despite already going through a settlement negotiations process, you will do it again as part of the lawsuit process. The goal is to hopefully come to an agreement before having to go through with the trial. If you still can’t come to an agreement, the case will move to the trial phase.

At trial, your car accident attorney will present your arguments and evidence to a judge or jury, and the other party’s lawyer will do the same. You will need to present evidence that proves the other party’s fault and additional evidence that proves your losses. The evidence will vary from accident documentation to medical bills and witness statements. At the end of the trial, there will be a ruling on fault and damages. Depending on your state, you will need to prove either 100 percent, the majority, or partial fault on the part of the other party to recover for your financial losses.

Once fault is determined and damages are calculated, the final award amount is determined. This amount will depend on whether the state is a contributory, comparative, or modified comparative state.

After the trial, you can go through an appeal process. During the appeals, you will petition a higher court to review the lower court’s ruling based on a legal argument. Most car accident cases do not get to this phase of the lawsuit process.

Are There Better Alternatives to Filing a Lawsuit?

Filing a lawsuit and going through the entire trial process is time-consuming and expensive. The longer the process takes, the longer you will have to wait for compensation for your injuries and damages. This can create increased personal and financial stress.

In addition, the legal process accumulates significantly more attorney fees and court costs than negotiation. If you are successful at trial, these additional costs will be deducted from your award amount, potentially reducing the amount you receive significantly.

It also puts the fate of your claim in the hands of a judge. This means you could end up with nothing if the judge or jury finds in favor of the other party. The other driver’s insurance company will have lawyers advocating for them. They could present effective arguments that place some of the liability on you. Being partially liable for the accident can reduce or bar you from recovery, depending on the state.

The alternative to filing a lawsuit is using alternative dispute resolution (ADR) methods. You may hear it called arbitration, mediation, or negotiation. The advantage of these alternatives is that you don’t have to give up your legal options to do them. You will file a car accident claim with the insurance company. The insurance company will make a settlement offer based on the insurance policy and its assessment of fault and damages. You can accept, reject, or counteroffer. Your attorney can also negotiate on your behalf. The goal is to come to a fair settlement agreement.

Find an Experienced Attorney Before Deciding to Sue

Before filing a lawsuit, you should consider speaking with a personal injury lawyer. They can advise you on the settlement negotiation process with the car insurance company. Once you hire them for representation, they will provide legal advice on the best strategy for pursuing your personal injury claim.

Visit the Super Lawyers directory to begin your search for an experienced car accident attorney. For more information on these legal issues, see our overviews on how accident settlements work and how to establish fault.