By Francis M. Smith
When you seek injury compensation from a party that harmed you, your attorney's efforts will likely to be a demand for settlement- either in a demand letter or made during a telephone conversation between the adjuster and your attorney. This is an important step, as it lays out the strongest arguments in support of your claim and puts forward the opening sally in your negotiation efforts. Generally, an insurance adjuster will contact your attorney after receiving your demand, describing what he or she perceives to be the weaknesses in your case, and negotiations proceed from that point onward. But what happens when you've done everything to cooperate with your attorney, you have followed your doctor's orders, proper documentation has been sent to the insurance carrier, and a demand for resolution has been made – which is then completely ignored by the insurance company? The hardest response to prepare for is no response at all.
If your attorney's demand is met with a wall of silence, it may signal a flat denial on the insurer's part that any liability or wrongdoing exists, or that they are entirely unwilling even to compromise enough to begin negotiating. They may also simply be trying to stall you; if you do not have an attorney, many injured plaintiffs, have more than enough to worry about in the aftermath of their accidents that sometimes “ignore them and they'll go away” is a viable tactic for insurance companies.
If more than two weeks pass without a response - letter, telephone call, or even an email from the insurance provider involved in your case, then it's time to talk with your attorney about your next steps. You may be inclined to give the insurance adjuster the benefit of the doubt, but after two weeks, it doesn't matter how swamped with other claims, on vacation, or out sick with pneumonia the adjuster assigned to your case is – someone in that office should have responded saying that the company is investigating your claim and will be in touch. If they haven't, you should interpret this as a willful choice to ignore your claim and your attorney and proceed accordingly.
The settlement negotiation process is generally an effort to avoid the time, money, and risk associated with bringing a case to court, for both sides of a claim. Filing suit has to happen when negotiations have broken down and reaching a mutually-acceptable settlement appears impossible. If the insurance provider fails to respond to a demand, the negotiation process has failed straight out of the gate. You should speak with your attorney about whether pursuing litigation is worth the time and expense. Most personal injury lawyers work on contingency, accepting a percentage of the eventual settlement total as their fee, but there are other costs associated with pursuing a lawsuit, and no guarantee that your efforts will pay off anytime soon. Still, if your injury damages are significant, filing a lawsuit may be your only chance of real medical or financial recovery. In decades past, most personal injury attorneys will agree, most claims for injury- in my experience 70% or so- were settled without a lawsuit being filed. Even now, most estimate that 97 or 98% of all lawsuits filed are settled, not tried to a jury, but there is delay and expense involved.
If you decide to go forward with your lawsuit, your attorney will determine what court has jurisdiction and will draft your Complaint. A Complaint is a legal document filed with the court that outlines all the relevant facts involved in your case and clearly states the cause of action that you are pursuing against the party responsible for your injuries. Your Complaint will include the circumstances of your injuries, the parties are involved and how they are connected to your claim, the legal principles underlying your demand for compensation, and what form of remedy you are seeking for your injuries – this last in some states, but not NJ, may include the specific dollar value of your damages. Remember that filing a lawsuit generally involves paying a filing fee to the court, (in NJ presently $250) and in most states several hundred dollars.
Once your lawsuit is in motion, the insurance company no longer has the luxury of ignoring you, unless it has found some justification for denying coverage to the policy-holder who you're suing. The first stage in a lawsuit after the paperwork is filed with the court is called the discovery process. During this phase, both sides gather information about the details of the case to build their arguments. Interrogatories (a 25 cent legal term for written questions) will be answered, requests for documents will be made and supplied, and depositions of the parties (questioning under oath of you and the defendant)are taken during this time. In NJ the first phase of discovery in a personal injury lawsuit is 300 days- 10 months- and that time period is usually extended to more than a year, sometimes, depending on the magnitude of the injuries, or complications in the liability theory of your attorney, much longer.
Once your lawsuit is in motion, you may find the insurance company is suddenly more willing to negotiate, especially if you have a strong case and the insurance carrier's coverage is limited, as it is in many auto collision cases. It's still possible - actually probable- to reach a settlement before a jury trial is undertaken- as long as you have a liability case that is well grounded and adequate proofs of your injuries (that is your attorney's job to produce). In larger cases involving very serious injury, mediation by a neutral legal professional (many times a retired judge) may produce results where traditional settlement negotiation had failed. If all else fails, the jury decides.
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.