Personal Injury Blog

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When faced with an accident, many are plagued by the worries of a lawsuit, or in some cases, not wanting to make a claim in the fear of “suing” another person. Tensions run high, and the thought of a long, drawn-out lawsuit can be a lot to handle. 

However, filing a claim against the opposing party is not only encouraged, but essential -  and it doesn’t mean you are suing someone.

Learn more about the steps of the pre-litigation process, the differences between presuit and lawsuit, and the very fine line between the two.

What are Pre-Litigation Requirements? 

The pre-litigation process is any activity that occurs regarding a legal claim prior to a lawsuit being officially filed. While you do not need a personal injury attorney during the pre-litigation process, it is especially helpful to have pre-litigation counseling with an attorney who has experience with prior cases. 

Hiring a personal injury attorney pre-litigation is also less expensive than having an attorney for a lawsuit. They’ll try to settle your case fairly before it escalates into a lawsuit; if you do end up pursuing a lawsuit, your personal injury attorney will be able to give you a better understanding of what to expect. 

Typically, a pre-litigation follows this process:

  1. Your personal injury attorney sends a formal pre-litigation letter of your intent.
  2. There is an investigation made; your attorney may speak to witnesses and take statements, as well as gather valuable information such as medical records. 
  3. A formal pre-litigation demand is made; this can be in the form of a claim to the other party’s insurance company or a letter demanding compensation. 
  4. Any attempts are made to settle before the case becomes a formal lawsuit.

If there is no settlement made, then you and your personal injury attorney may discuss proceeding to a formal lawsuit

Pre-Litigation Vs Lawsuit

The presuit process before a lawsuit, and an actual lawsuit itself, are two different cases altogether. Ideally, the pre-litigation process attempts to settle your case without going through the legal proceedings of a lawsuit. 

Pre-Litigation Process 

Essentially, the pre-litigation process is exactly what it sounds like: all of the steps taken in a claim that leads up to a settlement. Pre-litigation, also known as presuit, isn’t a means to ending a lawsuit, so don’t think about it like that—instead, see it as its own separate process, standalone from a lawsuit. The pre-litigation process begins the moment you call your insurance company after an accident. You can go from presuit to a lawsuit, but it is on a case-by-case basis. There are many determinants that a personal injury attorney has to evaluate before moving forward with a lawsuit.

Your presuit claim is typically compiled of:

  • Establishing a claim
  • Retaining attorney representation
  • Property damage
  • Recorded statements with the insurance company
  • Doctor visits and due care
  • Negotiating with the insurance company for a settlement
  • Signing releases

The strength of your case lies in your physician care and ensuring that you are properly diagnosed for your injuries incurred. With the right circumstances, you can settle with your insurance company after your medical treatment is finished. (For context, usually a doctor places you on a treatment schedule where it’s a few times a week consistently until they can get you back to your previous state, or as close to that as possible).

Lawsuit Process 

There is a stigma surrounding lawsuits; while this isn’t necessarily unfounded, there are circumstances that dictate lawsuits or suing someone. For example, if someone was rear-ended, had a herniated disc, and the insurance company refused to pay anything, this would be grounds for a lawsuit (there are exceptions to every rule, but we used a generic hypothetical example not based on anyone). Insurance companies have a duty to provide recompense for the damages that the insured caused – property and injuries, alike. While there are caveats to all of these rules, it’s safe to say each situation is unique.

Lawsuits consist of:

  • Filing a complaint
  • Discoveries
  • Depositions
  • Interrogatories
  • Trial (very few cases ever make it to trial)

Keep in mind you must have attorney representation in order to move forward with a lawsuit; you don’t necessarily need an attorney before that, but it’s highly advised. Without an attorney’s help, the insurance companies will pressure you to settle for lower compensation than you rightfully deserve for your injuries.

Presuit Vs. Lawsuit: The Takeaway

Consider this a bird’s-eye view of a presuit versus lawsuit scope. There are many nuances that can change what prompts a shift from presuit to lawsuit, but it usually happens once negotiations commence. If you’re worried about not wanting to sue the other driver—don’t.

It’s important you take care of your injuries and let the claim gain traction through your personal injury attorney. Still wondering about what to do after an auto accident? Make sure you receive due legal advice to help you move forward in your claim.

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