Collecting damages in a motor vehicle personal injury case begins with an insurance claim. Generally, unless there is some type of insurance coverage involved (the other driver's, yours, or a combination), there is no realistic hope of recovery.
Once a claim is made, the next step should involve getting the needed medical treatment, talking to an attorney, and then waiting. There are some cases where the injuries resolve after some treatment; these cases can often settle without filing a lawsuit. However, other cases involving disputes on liability (who was at fault), lower end insurance carriers, or significant injuries, often cannot be resolved without initiation of a lawsuit.
Once a lawsuit is filed by an injured party, the next step is to have the Sheriff serve the defendant. Then, the defendant files an appearance (rather, his insurance carrier retains counsel to do that). Usually, an Answer to the complaint, denying or admitting various allegations is filed. Occasionally, a Motion to Dismiss may be asserted and must be ruled upon (or the Complaint must be amended) in order to proceed. Once this is all "done," the case is "at issue," and discovery starts.
Discovery consists of written questions each side must initiate and answer. Next comes oral discovery, depositions, where sworn testimony is taken down by a court reporter in response to questions posed by the other side's lawyer. A single deposition can take several hours, and preparing a witness for a deposition can take several more. The key is to be consistent in answering questions. This is the main reason why providing a recorded statement to the other party's insurer is always a bad idea. Depositions of parties will touch upon a witness's background, reliability (felony, and some other convictions, are relevant and will be asked about), how the collision occurred, the medical treatment, and what activities the injuries prevented the injured person from performing. These will be very detailed and it is crucial the witness knows the case as well as the attorney prior to the deposition.
Another facet of the case is oral and written discovery of other witnesses, such as treating doctors or hired experts, pursuant to Illinois Supreme Court Rule 213. These are another hurdle for both sides, especially the plaintiff, who must make certain of the proposed testimony of the doctors treating the plaintiff, so that they support the testimony of the party whom they treated. This stage can also become costly to both sides, and is a part of the chess game that is litigation.
Once expert discovery is completed, the case is usually ready for trial, and is often assigned to a particular trial judge.
A doctrine known as Comparative Negligence (often called contributory negligence) makes it even more difficult for plaintiffs to prove their cases, especially if liability is contested, as in a left turn-type case.
Comparative Negligence in Illinois states that a Plaintiff does not recover at all if he is found to be more than 50% at fault for his own injuries. His recovery is reduced by the percentage of comparative fault. Thus, if a jury verdict of $100,000 is reached, but the jury finds the plaintiff 45% at fault, the final amount is $55,000. Keep in mind that a verdict may be appealed by either side.
A lawsuit in Illinois for negligence (as are most car crashes) must prove:
In extreme cases, there may be a motion to the Court to amend the Plaintiff's Complaint to include punitive damages, which are to punish a defendant for outrageous behavior. Some examples are a defendant who was intoxicated, drove a vehicle known to have no brakes, drove without prescription glasses, or, in some potential situations, drove distractedly due to use of a smart phone (texting, emailing). Punitive damages are not covered by most insurance policies.
Filing an insurance claim or personal injury lawsuit after a car accident is full complexities: negotiating with the insurer, filing in court, conducting discovery, interviewing experts and witnesses, establishing the extent of your injures ... and the list goes on. Read more here on why we don't recommend that you file a car accident lawsuit yourself. This is why most auto accident victims or their families prefer to hire a personal injury attorney. But don't just hire any attorney. To choose the best attorney for you, do your homework and find someone whom you trust and who has the right experience and qualifications. Finances are often tight after an accident; you may be facing medical bills and missed work. Find an attorney who offers a free consultation and no fees until you recover against the insurance company.