By Francis M. Smith
Once you have decided to pursue compensation for injuries you sustained as a result of another party's negligent actions, your attorney will send the insurance provider of the other party a letter containing your demand for damages. This begins your case; should the insurance company choose not to offer you a check for the full amount of your compensation demand (which essentially never happens), both sides will begin preparing for the lawsuit.
Most personal injury claims are resolved through a mutually agreed-upon settlement agreement outside of a courtroom, but a willingness to take your case to trial, and being prepared to do so, are an important bargaining tools at the settlement negotiation table. Court cases can be lengthy and expensive undertakings for the losing side, and the insurance company knows that a sympathetic jury has the power to award an injured plaintiff much greater sums than the plaintiff might be willing to accept in a settlement. An insurance company does have the financial and legal resources to drag out an injury claim in the hope of wearing down the plaintiff's resolve to continue, but usually the insurer would prefer the case be resolved quickly and quietly (but not always). You and your attorney can use that fact to your advantage in negotiation, but only if your case is strong.
The strength of your case is demonstrated during the discovery phase of the lawsuit process. This is the period during which both sides investigate and research the circumstances of the accident and the backgrounds of the parties involved. In discovery, you will be asked to answer a series of written questions concerning your accident and injuries, as well as questions about your personal background. Some of these questions may seem intrusive or irrelevant, but your personal injury attorney can tell you whether the defense team has the right to demand that information, and why it's relevant to the case. Your attorney will also submit sets of questions to the other side; these written questions are called interrogatories, and the answers supplied are considered to be given under oath, so it's important to be as truthful and accurate as you can be.
The discovery phase is also when documents relevant to the case are shared between sides in the lawsuit. As part of this process, you may have to authorize the release of certain medical or financial information to the defense team, as the extent and prognosis of your injuries and your economic situation are both relevant to the case. However, the power of the insurance company to demand information about you is not unlimited; they need to confine their requests to relevant topics, and your attorney may challenge requests for the production of documents that overreach those limits.
Through the exchange of information and documents, both sides gain a greater understanding of the case, build their own arguments, and can judge the relative strength of their opponents' positions. When your attorney negotiates a personal injury settlement, he or she will outline the case that has been built for you, emphasizing its persuasive strengths in an effort to convince the adjuster that his employer (the insurance company) is better off settling for the amount you're seeking in damages than trying their luck in front of a jury.
During the same negotiation, the insurance adjuster will present his own arguments, looking for any weaknesses that might be present in your case. He may call into question the reliability of witnesses (including yourself), or assert that the medical treatment you have received for your injuries is excessive or unnecessary for the injuries you sustained, or due to a pre-accident condition. It can be difficult not to take offense if the insurance adjuster's arguments call into question your truthfulness or integrity, but this process gives you and your attorney insight into the arguments he plans to use to defend his position -- and thus enables your attorney to develop countering strategies to dismantle those arguments. Don't be drawn in or provoked by the adjusters comments or arguments; let your attorney provide an explanation of something that has happened or something that has been said in negotiation.
The discovery stage is part of the lawsuit process, but that process may be ended at any time before a verdict is reached with the successful negotiation of a settlement agreement. Initiating a lawsuit and entering discovery not only shows the insurance company that you have the resolve to pursue your case to court if necessary, but it also gives you an opportunity to obtain valuable information that will help your attorney construct the strongest case possible for you. The process may also allow your attorney to gain insights into the legal strategy the insurance company plans to use to fight your case. An experienced personal injury lawyer can use discovery to negotiate a better injury settlement.
If you or a loved one have been injured in a serious accident, please contact me or call me at 908-233-5800 for a free consultation.