One of the most common complaints from personal injury plaintiffs is how long it takes from the time they are injured to the time they are compensated. Most probably assume that their lawyers are dragging their feet. In some cases, that may be true. However, in the vast majority of cases, there 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 needs to investigate your claim — get accident reports, witness statements, medical records, insurance information, etc. Expect at least a 30-day wait before their office starts to receive these materials. It’s not uncommon for a hospital to take 30+ days just to send the ER records.
Next, your attorney will want to wait until you are through with your medical treatment or you’ve reached max medical improvement. Trying to settle before all of the medical bills are available will leave outstanding bills. This process can take many months, during which time your lawyer will periodically get updated medical records.
When you are through treating, your lawyer will likely want to try to settle your case with the defendant’s insurance company. The first step is by sending them a “demand letter,” a 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 fails to reasonably settle within the 30 day timeline, 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.
Depending on the contract you signed with your attorney, filing a lawsuit can cost you money.
The personal injury lawyer fee “industry standard” is 1/3. However, some firms charge 40% pre-suit. Most PI attorneys fee percentages increase once 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 pre-trial conference: 45%.
Under this type of contract, a case that settles pre-suit at $100k (33.33% attorney fee) is the roughly (attorneys like to say “I went to law school to stay away from math!” so I use roughly here) the same as the case settling after the lawsuit files for $111.12k. (40% attorney fee).
Obviously, settling pre-suit gets the client their money sooner, but it also can avoid a lot of the costly case expenses – such as court fees, deposition costs, and expert witness fees. If you can reasonably settle your case without having to file a lawsuit, you should do so. This is why it is important for your attorney to take their time and build a strong case before filing suit. You don’t want your attorney skipping steps which might ultimately screw up your chance to settle before ever having to file a lawsuit.
Delays After Your Lawsuit is Filed
After your lawsuit is filed, the majority of 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 which is 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 you to get an appointment to see your doctor for a 15 minute exam? Now imagine trying to find a place in their schedule that is 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 which will need to be scheduled. Any motions which need to be heard will need to be scheduled with the court. Finding a hearing date that works for the attorneys and the court (judge) will also usually result in a delay of several months.
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 not only among the attorneys and the mediator, but also the parties (including you) and a representative from the defendant’s insurance company. Oftentimes, a 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 then 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 that your trial date will be set many months out from the time the court issues an order setting the trial. This date will need to be cleared with both parties’ attorneys (keeping in mind that they need to find a time when they have days, if not weeks, available at the same time).
The second thing you should know about civil courts is that they schedule multiple trials for the same time, 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 which 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 of these cases must settle or agree to be moved for you to have your trial on that date. If one of those cases actually 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 down the road. There are many reasons for requesting a continuance, such as witness unavailability, illness, or the need for 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 mostly caused by needing to wait to see how your medical treatment goes. After suit is filed, they are mostly scheduling issues (among people who are booked months in advance). There really is nothing that 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.