Most personal injury claims go through a settlement process, where the parties engage in negotiations to reach a favorable agreement. If the parties fail to settle, the plaintiff will generally file a lawsuit and litigate the case in court. The parties may continue to negotiate throughout this process and reach an agreement before taking the case to trial.
The plaintiff’s goal is to reach a settlement agreement that reflects the actual value of their claim. To achieve a favorable settlement, you need to negotiate like a professional. Below, we discuss the stages involved in negotiating a typical personal injury claim.
Table of Contents
Stage 1: Determine the Approximate Value of Your Claim
If you are claiming non-economic damages such as pain and suffering, it is unlikely that you will calculate the value of your claim precisely. However, it is possible to calculate a reasonably precise estimate, around which you can accept a range of potential settlement values.
For this, you need to apply the relevant facts of your claim to Florida personal injury law.
Your Initial Attorney Consultation
At your initial consultation, which most personal injury lawyers offer free of charge, the attorney will ask you questions designed to allow them to evaluate the viability of your claim. If your claim is viable, the lawyer may offer to represent you on a contingency fee basis.
Your lawyer will perform a preliminary investigation to yield a better idea of the actual value of your claim. For example, they might interview witnesses, read police and medical reports, and visit the accident scene.
If your claim is substantial, your lawyer might hire an accident reconstructionist and other experts to determine fault for the accident and build your case. Your lawyer will also determine the identity of the appropriate opposing party (usually the defendant’s insurance company).
Stage 2: Exchange of Correspondence
Certain formalities will occur before you begin negotiating your claim with the opposing party.
Your Demand Letter
Your lawyer will usually draft a demand letter to the opposing party’s insurance company. This letter notifies them of the existence of your claim. The demand letter will briefly describe the accident, your injuries, and the facts supporting your claim. It will also include a demand for compensation.
Depending on your strategy, you may or may not want to include a specific monetary amount in your demand letter. Some lawyers want the opposing party to make the first offer.
The Insurance Company’s Reservation of Rights Letter
The insurance company will respond to your demand letter with a “reservation of rights” letter. This letter will explain that the insurance company reserves the right to investigate your claim and reject it if they discover that it has no merit. Don’t be concerned – this is just a formality.
Stage 3: Offer/Counteroffer
Once you and the opposing party have completed the formalities, the negotiation process will begin. This process will probably consist of a series of offers and counteroffers between your lawyer and the insurance adjuster.
Leave this to your attorney, because insurance adjusters are savvy negotiators. Hopefully, your lawyer is too.
Stage 4: Filing a Lawsuit
Not all settlement negotiations include filing a lawsuit, and filing a lawsuit doesn’t mean you’ve given up on an out-of-court settlement.
Three of the main reasons for filing a lawsuit are:
- To gain access to the court-supervised, pretrial discovery process
- To apply pressure on the opposing party
- To meet the statute of limitations deadline for filing a lawsuit, if it is looming
You shouldn’t try to file a lawsuit yourself because this process can be time-consuming and complex. Your lawyer should draft a formal complaint with great care.
Stage 5: Discovery
The discovery process gives each side access to the other side’s evidence and gives them a better idea of their arguments and case strategy.
- Depositions (out-of-court testimony)
- Interrogatories (written Q&As)
- Requests for production (to obtain access to physical evidence and pre-existing documents such as medical records)
- Requests for admissions (requests that the other party admit to certain facts so that you don’t have to prove them in court)
The court can sanction a party that refuses to cooperate with a discovery request.
Stage 6: Mediation
Courts often pressure parties to engage in mediation because it reduces the size of their dockets. In mediation, a third-party mediator tries to help you settle your claim. The mediator cannot compel you to settle. Under certain circumstances, however, a court can compel you to at least go through the motions of mediating your dispute.
Stage 7: Drafting a Settlement Agreement
A settlement agreement is a binding contract between you and the opposing party. If the opposing party fails to honor it, you can file a breach of contract lawsuit against them. If you win and the opposing party still refuses to pay (an unlikely scenario), you can petition the court to compel them to pay.
Let Your Personal Injury Lawyer Negotiate for You
An insurance adjuster is a professional negotiator, but so is an experienced personal injury attorney. Your lawyer’s advantage is that they probably understand your particular case much better than an opposing party. A skilled personal injury lawyer is likely to increase the value of your settlement by much more than the amount of their legal fee.