The Process of a Personal Injury Claim in Miami, Florida
May 29, 2023 | Sagi Shaked | Personal Injury
A personal injury claim provides a legal right to compensation when you suffer an injury for which someone else bears legal responsibility. Resolving a personal injury claim may involve negotiation, courtroom litigation, or both. Below we discuss the legal process and what you can expect if you were hurt in Miami, FL.
Step 1: Understand Your Claim and Identify the Responsible Party
Once you even suspect you have a personal injury claim, your next step should be to schedule a free initial consultation with a reputable Miami personal injury lawyer. Very few lawyers will charge you for a consultation, and you are under no obligation to hire the lawyer.
The lawyer can listen to your story and give you an evaluation of the strength of your claim. They might even be able to provide you with a dollar estimate of its value, although it might be too early for this.
The “responsible party” you will target for settlement negotiations is not necessarily the legally liable party who you would sue in court. In fact, often, it is not. Instead, the responsible party might be the insurance company that agreed with the defendant to pay certain kinds of legal claims, such as liability for negligent driving.
Nevertheless, the identity of the defendant determines the identity of the party responsible for paying because different defendants hold different insurance policies.
An attorney can help you find a defendant that you might not have considered, such as:
- The at-fault party’s employer
- A nightclub that sold alcohol to the defendant
- The manufacturer of a defective product that contributed to an accident
It is important to target someone who can afford to pay your claim.
Step 2: Send a Demand Letter to the Responsible Party
Most parties, whether a plaintiff or defendant, do not want to go to trial to settle a claim. A trial is expensive, time-consuming, and far too public for most people’s tastes. Injury victims, defendants, and insurance companies alike settle claims out of court well over 90% of the time.
A demand letter is typically the spark that initiates the process of negotiating your claim. You should send your demand letter to the responsible party (with a copy to the defendant).
Typically, a demand letter includes:
- An explanation of why the defendant is liable for the claim.
- A description of the plaintiff’s injuries.
- A description of medical treatment and how much it costs.
- An estimate of the plaintiff’s lost earnings.
- An estimate of other losses, such as pain and suffering.
- Documents that help to prove the foregoing claims.
Some attorneys like to include a specific dollar demand for damages in their demand letter. Other attorneys would rather wait for the responsible party to make the first offer.
Step 3: Commence Settlement Negotiations
In most cases, the party receiving the demand letter will be willing to engage in at least the pretense of negotiation.
If you send your demand letter to an insurance company, you might have to deal with an insurance adjuster who negotiates personal injury claims for a living. In such a case, expect the first offer to be laughably inadequate. Your next step would be to issue a counteroffer. If negotiations fail, it might be time to take further legal action.
Step 4: File a Personal Injury Lawsuit
If settlement negotiations stall (and they often do), you might need to file a personal injury lawsuit to get things moving again.
Filing a lawsuit will accomplish at least three purposes:
- It will show the opposing parties (the defendant and the insurance company) that you mean business
- It will beat the statute of limitations deadline
- It will get you access to the pretrial discovery process, a great way to gather evidence that you might never gain access to otherwise
To file a lawsuit, you need to file a formal complaint, pay the filing fee, and arrange for a neutral third party to deliver a summons and a copy of your complaint to the defendant. Have your lawyer draft the complaint for you, because even a small mistake could result in major negative consequences.
Step 5: Engage in the Pretrial Discovery Evidence Collection Process
The pretrial discovery process is a way to gather evidence that is in the possession of the defendant or, sometimes, a third party. Since the court will enforce this process, you can compel an uncooperative party to comply.
Discovery offers you the use of the following legal tools to gather evidence that is in the possession of the opposing party:
- Depositions, which allow you to elicit under-oath, out-of-court testimony from witnesses
- Interrogatories, which are written questions that the opposing party must answer in writing
- Demands for production, which allow you to copy documents and inspect physical evidence
- Requests for admissions, in which you ask the opposing party to admit to certain facts to simplify the case
Remember that the opposing party can use all of these legal weapons against you as well. They might, for example, use a demand for production to seek an independent medical examination of your injuries.
Step 6: Resume Settlement Negotiations
The new evidence gathered during the discovery process will probably tip the balance of your claim one way or the other.
In a worst-case scenario, you might need to abandon your claim for lack of evidence. In a best-case scenario, you might gather so much favorable evidence that the opposing party has no choice but to offer an immediate and generous settlement.
Step 7: Sign a Settlement Agreement or Go to Trial
There are two possible ways to resolve your claim – settlement or trial. If you are able to reach a settlement, you need to draft a well-worded settlement agreement and have both sides sign it. Your lawyer can help you with this.
If you need to go to trial, you will need to prepare your evidence, select the jury, give opening statements, examine and cross-examine witnesses, and give closing statements. You might appeal an adverse result.
A Miami Personal Injury Lawyer Can Help You Enforce Your Claim
Claims do not enforce themselves. You must prove your claim through initiative and, in many cases, hard work. In most cases, the best way to enforce a personal injury claim is to hire a lawyer. That won’t guarantee you victory, but it should increase your odds dramatically.
Remember that “victory” is meaningless unless the actual amount recovered equals your claim’s true value. A good Miami personal injury attorney should know the true value of your claim and be willing to fight for it.