One of the most common complaints from personal injury plaintiffs is how long it takes from the time they are injured to the time they are compensated. Most probably assume that their lawyers are dragging their feet. In some cases, that may be true. However, in the vast majority of cases, there are many unavoidable speed bumps along the way that even Atticus Finch couldn’t avoid.
Delays Before Your Lawsuit is Filed
There are several important reasons why your lawyer does not file your lawsuit immediately after you hire him. First, he needs to investigate your claim — get accident reports, witness statements, medical records, insurance information, etc. Expect at least a 30-day wait before his office starts to receive these materials. Next, he will want to wait until you’ve reached maximum medical improvement (MMI), so he can evaluate how much your lawsuit is worth. This process can take many months, during which time your lawyer will periodically get updated medical records, but not have much else to do.
When you reach MMI, your lawyer will likely want to try to settle your case with the defendant’s insurance company. He usually does this by sending them a “demand letter,” a letter that explains how their insured (the defendant) is at fault and how much you have suffered in damages. He will include supporting records, such as the accident report and your medical records (no insurer will pay without proof of your injuries). He then demands that they pay a certain amount (frequently this will be the maximum amount of insurance coverage) within 30 days or he will file a lawsuit.
Why give them 30 days? 30 days is pretty much the industry standard “reasonable amount of time” for an insurance company to review a demand for settlement. If the insurer fails to reasonably settle within that time, and later on their insured is saddled with a judgment which exceeds his policy limits, the insurer may be responsible for paying the full judgment amount under “bad faith” law. If your lawyer does not give them a reasonable amount of time to review the settlement demand, he may be screwing up your potential bad faith lawsuit against the insurance company. Trust me, it is well worth the 30-day wait to preserve a potential bad faith claim.
So why should your attorney try to settle with the insurance company before filing a lawsuit? Well, in many states, like my home state of Florida, there is a direct benefit to the plaintiff in settling a case before your lawsuit is filed — your attorney’s contingency fee will be lower. In Florida, the standard contingency fee agreement provides that a lawyer gets paid one third (33.333%) of any recovery prior to the lawsuit being filed (not to split hairs, but it is actually up to the time the defendant files an answer in which it denies liability). After the lawsuit is filed, that fee goes up to 40%. So you save over 6% if your case settles before suit is filed (over $6,000.00 on a case which settles for $100,000.00).
Obviously, you will also get paid sooner if your case settles before a lawsuit is filed. Your costs (the expenses your attorney charges in addition to attorney fees, such as court fees, deposition costs, expert witness fees) will also be lower. If you can reasonably settle your case without having to file a lawsuit, you should do so. This is why it is important for your attorney to take his time and build a strong case before filing suit. You don’t want your attorney skipping steps which might ultimately screw up your chance to settle before ever having to file a lawsuit.
Delays After Your Lawsuit is Filed
After your lawsuit is filed, the majority of delays will arise from simple scheduling issues. For example, say the defense attorney wants to depose one of your treating doctors. He will need to coordinate a time to do this which is open for him, for your attorney and your doctor (if there is more than one defense attorney involved, it will have to be coordinated with all of them). How long does it take you to get an appointment to see your doctor for a 15 minute exam? Now imagine trying to find a place in his schedule that is open for a 2 hour deposition. Often, depositions need to be scheduled months in advance to accommodate everyone involved.
Of course, depositions are not the only things which will need to be scheduled. Any motions which need to be heard will need to be scheduled with the court. Finding a hearing date that works for the attorneys and the court will also usually result in a delay of several months.
Many courts will require that the parties go to mediation (a formal settlement conference) before they will give you a trial date. This will need to be coordinated not only among the attorneys and the mediator, but also the parties (including you) and a representative from the defendant’s insurance company. Often, mediation will be a waste of time unless the parties delay it until after a good amount of discovery is completed, including any important depositions (if you could have settled before discovery was done, you probably would have settled before the lawsuit was ever filed).
If your mediation fails to result in a settlement, the court will then give you a trial date. Think you’re near the finish line now? Not so fast. . .
Delays in Your Trial Date
The first thing you should know about how the courts work is that criminal cases always take priority over civil cases (people’s freedom being more important than their money). There is no right to a speedy trial in civil lawsuits. Expect that your trial date will be set many months, if not more than a year, from the time the court issues an order setting the trial. This date will need to be cleared with both parties’ attorneys (keeping in mind that they need to find a time when they have days, if not weeks, available at the same time).
The second thing you should know about civil courts is that they schedule multiple trials for the same time, with the same judge, knowing that most will settle before the trial date. Most times, when you get your trial date, you will not be “first” on the docket, meaning that there are other cases set for trial which take priority over yours. You may be bumped. For example, you could be told that you are set to go to trial on the week beginning 2/28/2011, but that you are “number 3” on the docket. This means that there are two cases set for trial ahead of yours for that date. Both of these cases must settle or agree to be moved for you to have your trial on that date. If one of those cases actually goes to trial, your trial gets bumped to the next available docket, which could be many months away — and you may still not be “number 1” on that docket! If the court offers your attorney a chance to be “number 1” on the docket, often this will require him accepting a trial date which is much further away than one where he can be “number 3” or “number 4.” Usually you will get to trial faster by not holding out for a “number 1” position (because the odds are so high that cases ahead of you will settle before trial).
The third thing you should know civil courts is that they grant “continuances” all the time. A continuance is a request by one or more parties to bump the trial date down the road. There are many reasons for requesting a continuance, such as witness unavailability, illness, or the need for more discovery. Just know that if a continuance is granted in your case, it will mean several more months of waiting before your case goes to trial.
Most Delays Are Not Your Attorney’s Fault
Personal Injury lawsuits often take a long time to resolve. Most of the delays you will encounter are not your attorney’s fault. Before suit, they are mostly caused by needing to wait to see how your medical treatment goes. After suit is filed, they are mostly scheduling issues (among people who are booked months in advance). There really is nothing that can be done to speed things up in most cases.
And don’t even get me started on appeals. . .