What do you do if you can't settle your car accident claim with the other driver's insurance company? You probably have to file a lawsuit in court. This article discusses what to expect when filing a lawsuit, and looks at a few alternatives to court in the pre trial process.
Alternatives to Filing in Court
After a car accident, many people wonder what are the first steps after a car accident they should take. Many assume they should go straight to court. But before going to court, consider several alternatives that can save time and money and still produce a fair result. Mediation and arbitration are the main alternatives to court. Mediation involves voluntarily meeting with a trained mediator who attempts to help the parties resolve their dispute by agreement. The mediator can't decide the dispute or require either side to do anything. Arbitration, on the other hand, involves an agreed-upon arbitrator hearing evidence and deciding the dispute in a judge-like manner. Neither arbitration nor mediation can happen unless you and the other party (the other driver or insurance company) agree.
Here's another alternative to going to court that can work in some cases. If you can't reach a settlement because an insurance company just isn't playing fairly, you may be able to shape them up by making a complaint to your state's insurance department. Insurance companies are licensed and regulated and therefore -- to some degree, at least -- are concerned about complaints their failure to comply with the rules of fair play. To file such a consumer complaint, contact your state insurance department.
Your Options for Going to Court
Small Claims Court. Depending on the amount that you are trying to recover, you may be able to file in your state's small claims court. Generally, small claims car accident cases are decided by judges, not juries, they get to trial relatively quickly, they have simplified and expedited pre-trial procedures and they are not governed by formal rules of evidence in court, so you can represent yourself. What's the catch? Why wouldn't you automatically use the small claims court in all cases?
The catch is that there are limits on how much you can claim in small claims court. The range is from a low of $1,500 in Kentucky and Rhode Island to a high of $25,000 in Tennessee. Most small claims courts cover claims up to about $5,000. To find out the small claims court limit in your state, check out Nolo's article How Much Can I Sue for in Small Claims Court?
"Regular" Civil Court. If you want to recover more than the dollar limit allowed in your state's small claims court, you have to file a case in the regular civil court in the state where the accident happened. This court will be slower, more expensive and governed by more rules than the small claims court, but you can recover more. The general structure of a car accident lawsuit is that, after the case is filed, there is a pre-trial phase which is known as "discovery," during which the parties, using procedures set up for this purpose, exchange information about the case. You can learn what the defense is and the defense can learn the details of your claim. After discovery is complete, there is a trial. Although it doesn't happen in most cases, there is also a possibility of an appeal after the trial.
While you're not required to have a lawyer represent you even if you file a lawsuit in regular court, it's probably a good idea. The more you are claiming, the more sense it makes to get someone on your side who understands the system.
Can You Represent Yourself in Court? Should You?
You always can represent yourself. You are not required to have a lawyer represent you, even in court. But should you represent yourself?
In small claims court cases, absolutely. That's one of the main reasons why small claims courts exist, to give citizens a way to present smallish claims by themselves, without the expense of a lawyer. (Learn more about When to Represent Yourself in Car Accident Claims.)
However, when your case is in a court that is governed by formal rules of procedure and evidence, you may be at a major disadvantage if you try to represent yourself. The insurance company will have a lawyer represent the person you are suing, so there's a risk you will be tripped up by procedural rules and never even get to trial or that, if you get to trial, you will be frustrated by evidentiary rules you didn't know and be unable to prove your case. Either way, you lose.
Bottom line: If you have a case worth bringing, you have a case worth winning. To increase your chances of winning, you should hire a lawyer to represent you in almost all court cases except small claims cases.
Hiring a Lawyer
In real estate, it's location, location, location. When looking for a lawyer to help you with an important case, you want someone with experience, experience, experience. Ideally, you want someone who handles cases like yours every day -- in other words, a car accident expert. Learn more about Hiring a Car Accident Lawyer.
One reason that people are reluctant to hire a lawyer is that they are afraid of the cost. That should not be a problem in car accident cases because virtually all lawyers handle car accident cases on a contingent fee basis. "Contingent" means the payment of any fee is contingent on success. If you don't win, you don't pay legal fees. (However, you may still have to pay out-of-pocket expenses, such as court costs.)
If you win, the fee is usually some percentage of the amount recovered (normally one-third) but there are nuances and subtle but significant differences among contingent fee agreements. If a lawyer agrees to take your case on a contingent fee basis, that should give you confidence in your case.