Before you file a personal injury lawsuit after a car accident, slip and fall, or some other type of personal injury claim, you need to ask yourself a few questions:
- Who should I sue?
- Where should I file my lawsuit?
- What is the deadline for filing my lawsuit?
- What will I have to prove to win my lawsuit?
- Can I resolve my claim outside of court?
- How long will it take to resolve my case?
Here’s a framework for how to answer these questions in this quick guide to filing a personal injury lawsuit.
Who Should I Sue?
To file a personal injury lawsuit in court, you have to be the person who was actually harmed—physically or financially. In legal terms, you have to have standing.
Figuring out who to sue can be a bit more complicated. For example, if you were hit by a car while walking your dog, you would typically sue the driver of the car. But what if the driver was borrowing the car? In that case, you would want to sue the driver and the owner of the car because the car insurance is likely to be in the owner’s name.
If you fall in a grocery store or are injured by a defective product, you have to figure out who owns the store or who manufactured and distributed the product. In personal injury law, corporations are the same as people and can be liable for the harm they cause.
You can and should sue each and every person or entity that might share responsibility for your injuries (called “defendants”). If you can get a judgment against more than one defendant, you’ll have a better chance of collecting your money damages.
Where Should I File My Lawsuit?
You can’t just file your lawsuit in any courthouse you want. For a court to be able to hear and decide a case, it has to have jurisdiction.
Most personal injury lawsuits are filed in state court. You’ll only file a personal injury lawsuit in federal court if your case is based on federal law or if you're suing a citizen of a different state or country for over $75,000.
State courts typically have general jurisdiction over people who live in the state and businesses and organizations that do business in the state. You’ll want to file your lawsuit in the county where the person you’re suing lives or does business or where the accident happened.
If you are asking for a relatively small dollar amount, consider filing your lawsuit in small claims court. The small claims process is simpler, less expensive, and faster than regular civil court.
You Must File and "Serve" the Right Paperwork
Once you figure out where to sue, you have to file and serve the right paperwork. You’ll start by filing a complaint in court. Your complaint should include the defendant's name, a summary of your injuries, the facts surrounding your injuries, the legal basis for your lawsuit, and the amount of compensation (“damages”) you’re seeking.
After the complaint is filed in court, you have to “serve” a copy on the defendant. Serving the complaint means having someone (not you) physically deliver a copy to the defendant. The person who does this is called a “process server.” Each state has rules about who can be a process server. Along with the complaint, you'll serve the defendant with a summons. A summons tells the defendant how and when to answer your complaint.
What Is the Deadline for Filing My Lawsuit?
Each state puts a strict deadline, called "the statute of limitations," on your right to file a personal injury lawsuit in court. Deadlines vary from state to state and typically range from one to six years in personal injury cases. The statute of limitations "clock" typically starts ticking on the date you first knew or should have known about your injury.
If you miss the filing deadline in your state, the consequences are severe. Your case will almost certainly be dismissed and you’ll lose your chance to get compensation for your injuries and other losses.
(Learn more about time limits for filing a personal injury claim.)
What Will I Have to Prove to Win My Lawsuit?
What you have to prove to win your lawsuit varies depending on the type of personal injury case you have and where you live.
The legal concept of negligence is pivotal in most personal injury lawsuits. To prove negligence, you’ll typically have to prove:
- the defendant owed you a duty of care
- the defendant breached (violated) that duty, and
- the defendant’s breach of duty caused you harm.
Let’s look at an example of what proving negligence might look like in a car accident case. Say you were rear-ended at a stoplight and hurt your neck. To win your car accident lawsuit you’ll have to prove:
- the other driver had a duty to drive in a reasonably safe manner and obey all traffic laws
- the other driver breached that duty by failing to stop safely when you stopped at the stoplight, and
- you hurt your neck when the other driver slammed into you from behind.
In addition to proving negligence (fault for the accident), you’ll also have to prove the nature and extent of your injuries and other losses, like medical bills, lost income, vehicle damage, and pain and suffering.
Settling Your Case Outside of Court
Before you file a personal injury lawsuit, you should consider resolving your case outside of court. Many people start personal injury cases with an insurance claim instead of a lawsuit if the accident or injury is potentially covered by insurance. You might be able to negotiate a fair settlement with an insurance adjuster and save yourself the money and hassle of going to court.
Even after you’ve filed a lawsuit, you can settle your case at any time. Settlements are the most common outcome in personal injury cases. People settle personal injury cases outside of court for many reasons, including:
- avoiding the risk of trial
- saving time
- saving money, and
- limiting stress.
(Learn more about resolving your personal injury case.)
How Long Will It Take to Resolve My Case?
We asked readers from across the United States to tell us about their personal injury cases. On average, readers reported that it took 10 months to get a check. Here’s what we learned about how long the process lasted, from the start of their claims to when they either received a personal injury settlement check or learned they wouldn’t be getting anything.
How Having a Lawyer Affects a Case's Length
In our readers’ experience, having a personal injury lawyer usually meant a longer claims process. On average, those who hired an attorney resolved their cases in 15.7 months, compared to 7 months for those who handled their claim on their own. But that extra time–and an attorney’s help—generally paid off. Readers with legal representation received settlements or awards that were $60,000 higher, on average, than those who went ahead without a lawyer’s help.
What might explain this? It takes time for a lawyer to gather evidence to support a demand for higher compensation, negotiate with the insurance company, and put up a fight if necessary. Also, people with more serious injuries are more likely to hire a lawyer—and those cases usually take longer to resolve.
Does Negotiating a Settlement Offer Take Longer?
Yes. Nearly a third of our readers accepted the insurance company’s first settlement offer and, as a result, resolved their personal injury claims more quickly (7 months, on average) than those who put a higher value on their injury claim and held out for a better deal.
But taking the extra time almost always resulted in higher settlements. Readers who negotiated with the insurance company took an average of 11.2 months to resolve their claim, but they ended up with $31,000 more, on average, than those who simply took the first offer.
Does Filing or Threatening a Lawsuit Drag Out a Case?
As with settlement negotiations, it can take longer to resolve a personal injury claim if you file a personal injury lawsuit or notify the other party that you’re ready to do so. Readers who took one of those steps reported average resolution times of 11.5 months, compared to 7 months for those who didn’t do so.
Here again, our survey showed that the additional time and effort was worth it. Readers who filed or threatened a lawsuit received settlements or awards that were almost twice as high, on average, as those who took no steps toward getting the court involved in their claims.
Do Higher Medical Bills Mean the Claim Takes Longer?
Chances are, yes. Our survey showed that as readers’ medical expenses rose, it took longer on average to resolve their cases.
A personal injury claim will probably get resolved more quickly if you weren’t badly hurt in the accident. Your medical care won’t take very long, and the extent of your injuries will be clear. On the other hand, if you suffered serious injuries, it may take much longer to complete your medical treatment—and you certainly don’t want to accept a settlement until your condition is stable and you know the full scope of all your losses. The other side is also more likely to put up a fight in cases with more serious injuries and higher medical costs, because the stakes are higher.
A Personal Injury Lawyer Can Help
In all but the most minor personal injury cases, having a personal injury lawyer on your side can help you get the best possible outcome in your case. A personal injury lawyer can answer your questions and advocate at the negotiating table or in the courtroom.
Learn more about choosing a good personal injury lawyer. When you’re ready, you can connect with a lawyer directly from this page for free.