However, there are many unavoidable speed bumps along the way.
Delays Before Your Lawsuit is Filed
There are several important reasons why your lawyer does not file your lawsuit immediately after they are hired.
First, the lawyer must investigate your claim — get accident reports, witness statements, medical records, insurance information, etc. It’s common for a hospital to take 30 days just to send the ER records. A basic car accident claim may have one hospital visit at Integris Baptist Medical Center and physical therapy at Accident Care & Treatment. Even though it looks like only two medical providers are involved with the medical care, the actual records and bills will need to be obtained from multiple entities: EMSA, Integris Baptist Medical Center, Integris Baptist ER Physicians, SW Regional Imaging & Radiology, Accident Care & Treatment, and Radiology Associates.
Next, your attorney will want to wait until you are through with your medical treatment or you’ve reached maximum medical improvement. Trying to settle before all medical bills are available will leave outstanding bills. This process can take many months, during which your lawyer will periodically get updated medical records.
When you are through with treatment, your lawyer will likely want to try to settle your case with the defendant’s insurance company. The first step is to send the adjuster a “demand letter” that explains how their insured (the defendant) is at fault and how much you have suffered in damages. This includes supporting records, such as the accident report and your medical records (no insurer will pay without proof of your injuries). Most attorneys will include in the demand a deadline for the insurance company to pay a certain amount (either a dollar amount or the policy limits on the claim) within 30 days, or a lawsuit will be filed.
Why give them 30 days? 30 days is pretty much the industry standard “reasonable amount of time” for an insurance company to review a demand for settlement. We like to follow up two weeks after we’ve sent the demand. This seems to serve as a reminder for the adjuster. If the insurer refuses to settle within the 30-day timeline reasonably, the next step is to file the lawsuit.
So why should your attorney try to settle with the insurance company before filing a lawsuit? Time is money! But, in all seriousness, the sooner the clients get paid, the sooner the attorneys get paid.
Filing a lawsuit can cost you money, depending on the contract you signed with your attorney.
The personal injury lawyer fee “industry standard” is 1/3. However, some firms charge 40% pre-suit. Most PI attorney’s fee percentages increase once a suit has been filed. It’s a common practice to see contingency fees increase as the law firm gets more time and money (case costs) involved: pre-suit: 33.33%, after suit filed: 40%, after the pre-trial conference: 45%.
Under this type of contract, the amount to the client for a case that settles pre-suit at $100k (33.33% attorney fee) is roughly (attorneys like to say, “I went to law school to stay away from math!” so I use roughly here) the same as a case that settles after the lawsuit is filed for $111.12k. (40% attorney fee).
Settling pre-suit gets the client their money sooner, but it also can avoid many costly case expenses – such as court fees, deposition costs, and expert witness fees. You should do so if you can reasonably settle your case without filing a lawsuit. This is why your attorney needs to take their time and build a strong case before filing suit. You don’t want your attorney skipping steps that might ultimately screw up your chance to settle before ever having to file a lawsuit. This is also why providing all of the information your attorney asks you is essential. For example, your paystubs are needed to show proof of income.
Delays After Your Lawsuit is Filed
After your lawsuit is filed, most delays will arise from simple scheduling issues. For example, say the defense attorney wants to depose one of your treating doctors. The attorney will need to coordinate a time to do this open for him or her, for your attorney, and your doctor (if there is more than one defense attorney involved, it will have to be coordinated with all of them). How long does it take to get an appointment to see your doctor for a 15-minute exam? Now imagine finding a place in their schedule open for a 2+ hour deposition. Often, depositions need to be scheduled months in advance to accommodate everyone involved.
Of course, depositions are not the only things that must be scheduled. Any motions that need to be heard must be scheduled with the court. Finding a hearing date that works for the attorneys and the court (judge) will also usually result in some delay.
Many courts will require that the parties go to mediation (a settlement conference) before they will give you a trial date. This will need to be coordinated among the attorneys, the mediator, the parties (including you), and a representative from the defendant’s insurance company. Oftentimes, mediation can be a waste of time unless the parties delay it until after a good amount of discovery is completed, including any important depositions.
If your mediation fails to result in a settlement, the court will give you a trial date. Think you’re near the finish line now? Maybe.
Delays in Your Trial Date
The first thing you should know about how the courts work is that criminal cases always take priority over civil cases (people’s freedom being more important than their money). The right to a speedy trial is focused on criminal cases. Expect your trial date to be set many months from when the court issues an order to set the trial.
The second thing you should know about civil courts is that they schedule multiple trials simultaneously, with the same judge, knowing that most cases will settle before the trial date. Most times, when you get your trial date, you will not be “first” on the docket, meaning that there are other cases set for trial that take priority over yours. If your case is “third on the docket,” this means that there are two cases set for trial ahead of yours for that date. Both cases must be settled or agreed to be moved for you to have your trial on that date. If one of those cases goes to trial, your trial gets bumped to the next available docket, which could be a few weeks or months away — and you may still not be “number 1” on that docket! If the court offers your attorney a chance to be “number 1” on the docket, often this will require accepting a trial date, which is much further away than one at “number 3.” Usually, you will get to trial faster by not holding out for a “number 1” position (because the odds are so high that cases ahead of you will settle before trial).
The third thing you should know about civil courts is that they grant “continuances.” A continuance is a request by one or more parties to bump the trial date. There are many reasons for requesting a continuance, such as witness unavailability, illness, or more discovery. Just know that if a continuance is granted in your case, it will mean several more months of waiting before your case goes to trial.
Most Delays Are Not Your Attorney’s Fault
Personal Injury lawsuits often take a long time to resolve. Most of the delays you will encounter are not your attorney’s fault. Before suit, they are caused mainly by waiting to see how your medical treatment goes. After a suit is filed, they are mostly scheduling issues (among people booked months in advance). Nothing can be done to speed things up in most cases. PI attorneys want the same thing you do: for the case to resolve quickly and for the most amount allowable.