Filing a lawsuit versus filing a claim in personal injury cases

Many times clients fear that by going to a lawyer, they are necessarily filing a lawsuit against the other party. As a result, many are reluctant to talk to a lawyer about their personal injury case because they “don’t want to file a lawsuit.” When I explain they are not bringing a lawsuit, but instead, they are filing a “claim” against the responsible party’s insurance company (or sometimes their own company) they have trouble understanding the difference.

Usually, the first step is simply filing a claim for injury. This is purely a conversation with the insurance company. No lawsuit is filed or any official paperwork with the court. The only time you will actually file an official lawsuit is if you cannot reach a settlement agreement with the other party’s insurance company, and therefore, the only way to change the landscape is to file a lawsuit with the court. However, you need to be mentally prepared to file the lawsuit. Filing in the court system can take its toll on you and your family. It’s not a decision you should enter into lightly.

If you decide to file a lawsuit against the responsible party, formal paperwork known as the “complaint” is filed with the court. The defendant (the responsible party) then has to “answer” the complaint by filing something called the “answer” with the court. After all parties have engaged, there is a formal “discovery” process between the parties during which time each party is entitled to learn more about the other party’s position. This involves sending questions and requests to each other, all of which need to be answered under oath. There also might be depositions which are essentially formal question and answer sessions where testimony is recorded by a court reporter.

I try to explain to my clients that most cases resolve themselves before a formal lawsuit needs to be filed. Sometimes you need to file a lawsuit because you’re running out of time, and the statute of limitations is about to expire. Simply put, the statute of limitations is the time frame during which a lawsuit must be filed. If it expires, you cannot file a lawsuit in most cases. As of this posting, California’s statute of limitations is two years on most personal injury matters