A frequent question asked of personal injury attorneys by clients is how long their case will take until settlement or resolution lawyer can give a definitive answer as settlements, which is how the majority of cases end, or the path to trial can take months or even years. In Massachusetts, accident victims have 3-years in which to file a claim in court. During this 3-year period, attorneys work to build up your claim and present it to either the defendant’s insurer or to an entity if self-insured.
Steps in a Personal Injury Claim
There are numerous steps in the life of a personal injury claim. The initial one is to immediately contact a personal injury attorney if you were injured and your accident and injuries were the fault of another person or entity.
Your attorney will meet with you to discuss the facts and circumstances of your accident to determine if you have a credible claim with sufficient evidence to prove negligence by the other party and to see if any any possible negligence by yourself can be minimized or else to demonstrate that you were entirely free of fault. In Massachusetts, your own degree of comparative fault must be less than 51% or you may not recover any compensation.
As the claimant or plaintiff, you have the burden of proving fault as well as your damages. A police or accident report can often establish liability from the observations and investigation of a police officer at the scene of a car accident. These reports often contain statements from all involved parties and witnesses that can usually determine liability. In a slip and fall case, photos of the accident site and statements from witnesses can establish that a hazard had existed for some time, or that management had been notified, and no steps were taken to remove the hazard for which it was reasonably foreseeable that someone could slip and fall and incur injuries.
Often, the defendant’s insurer will want a statement from you. Do not give any statements without your attorney being present and who may not want you interviewed at this phase of the case.
If you took photos at the scene, which is highly suggested, then submit all of them to your attorney. If liability is contested, your attorney has to decide whether to represent you. If your injuries are serious, your attorney may retain an accident reconstruction expert who will investigate the accident. This can often take several weeks to complete.
If the defendant or insurer totally denies liability, your attorney must decide whether to file your case in the appropriate court to continue with your claim. Once it is filed, there are other steps in the litigation process.
The nature and extent of your injuries largely determines how serious a defendant’s insurer will take your claim and the amount of compensation it is willing to pay. Of course, the liability limits of the defendant’s insurer is instrumental as well.
Since Massachusetts is a no-fault state, you are entitled to certain benefits regardless of fault. From your own auto liability insurer or that of the defendant’s, you can recover up to $8,000 for medical expenses and wage losses. Talk to your personal injury attorney on how you can collect no-fault benefits.
If your injuries are extensive, it might take you several months or longer to arrive at your maximum medical improvement stage at which time no further medical attention is needed, though future medical intervention is a possibility. It is at this stage that your attorney may request a medical report from your physician or provider outlining your treatment, the pain you experienced, medications, and any permanent restrictions on your daily living activities and employment. Should you be unable to return to your usual employment, a vocational expert may be retained. This expert will put you through tests of your limitations and determine what possible employment you could do and the wages you would expect.
Another important aspect of any personal injury claim is your economic loss or special damages that includes medical expenses, mileage to and from medical appointments, property damage, and loss of wages. You will need a medical provider to state that your injuries are preventing you from engaging in your usual employment and for how long. If you can work with restrictions, these need to be outlined as well. Your attorney can subpoena your personnel file and payroll records to demonstrate your wages and employment benefits.
If you are to be out for months, your attorney will want to wait for your return to your usual or other suitable employment before beginning settlement talks with the defendant or its insurer.
Pain and Suffering
Pain and suffering are considered general damages and are often the highest amounts awarded. This is largely subjective and is reliant on your own testimony. Some attorneys suggest that their clients keep a diary to log their daily travails in coping with their injuries. This can show the lack of sleep you are experiencing from constant pain, the opioids you may have to take to control your pain, and your frustration with being unable to work, play with your children, drive anywhere, be social, or engage in hobbies, sports, or any other usual activities including intimacy with your wife.
You may also be suffering from post-traumatic stress disorder if there was a serious accident. Testimony from your doctor and therapists is essential as well to evidence your progress, restrictions, emotional distress, and permanent disability, if any. Family members may testify as well as to your ongoing suffering.
During the time you are recovering from your injuries, your attorney should be keeping the defendant or insurer updated regarding your injuries and damages. Once you reach maximum improvement or the 3-year statute is looming, your lawyer will present a settlement package to the defendant with a demand for a certain sum. Before presenting this, you and your attorney will discuss the pros and cons of your claim and what would be a reasonable and satisfactory settlement. No attorney can settle your claim without your consent to the amount. If the demand is rejected and the offer is insignificant, then only a filed lawsuit can continue the claim. The time when settlement talks begin can take a few months to over a year in most cases.
Once your claim is filed within the 3-year window, other steps take place. Discovery is the major one with each side requesting documents and responses to certain questions. In most cases, written interrogatories are sent and exchanged, and depositions, or questions asked under oath, are undertaken by the parties involved. This process is limited by the court but can take months to complete.
Also, the defendant can request that you be examined by a physician of their choice who will often opine that your injuries are either not as extensive or serious as you claim, that your treatment was unnecessary or excessive, or that your injuries pre-existed this accident.
Once discovery is completed, or at any time in the process, you and the other party may go to mediation where an impartial individual, usually a lawyer, will try to work out a settlement. This is not binding. You can, however, both agree to binding arbitration instead of trial. This can greatly shorten the wait time for your trial date, and cost less. Uninsured motorist claims, though, are only resolved through binding arbitration instead of trial if no settlement can be reached.
It may take several months or more than a year for your trial date. A personal injury trial can take a few days to several weeks depending on the number of witnesses among other factors.
Retain the Law Office of Burns and Jain
By retaining a highly experienced personal injury attorney from Burns and Jain, you are assured that you case will be vigorously pursued to a satisfactory resolution. We will also work diligently to get your case resolved as quickly as possible. Call us at (617) 227-7423 for a free consultation about your injury claim.