Personal Injury Claims vs. Lawsuits: Understanding the Differences

In the personal injury law context, a claim is an abstract legal right to compensation for an injury. For you to have a claim, the law must hold someone else responsible for your damages. 

A lawsuit, by contrast, is a legal procedure that you might use to enforce your claim against a reluctant responsible party. However, most claimants don’t want to file a lawsuit—they would rather settle their claim.

What Is a Settlement?

“Settlement” is an agreement to resolve a claim, usually by the payment of money from one party to the other. Most parties to a personal injury claim, whether the victim or at-fault party, don’t want to go to trial. They would rather settle because it is typically quicker, easier, and cheaper.

Below we discuss the stages of settling a personal injury claim.

The Initial Investigation

The first stage of settling your claim is to perform an initial investigation. Your lawyer will want to schedule a free initial consultation with you to ask you questions and (perhaps) gather documents. After that, they might visit the scene of the accident, take photos, interview witnesses, obtain any police report, obtain copies of your medical records, etc.

Negotiation: Offer and Counteroffer

Most claimants negotiate against an insurance company, although this is not always the case. Whether or not you are negotiating against an insurance company, you will likely go through a period of offer, counteroffer, counter-counter-offer, etc. Alternatively, the opposing party might just flatly deny your claim.

Hammering Out a Settlement Agreement

Hopefully, you and the opposing party will reach an agreement on the amount of money the opposing party is to pay you in exchange for you dropping your claim.

Enforcing the Settlement Agreement

Once both sides sign the settlement agreement, it becomes a legal, binding contract. You can enforce it in court like any other contract. The opposing party can use it to dismiss any further litigation on the claim you try to initiate.

Litigating a Personal Injury Lawsuit

“Litigation” occurs when you take someone to court. As such, settlement negotiations are not litigation. Filing a lawsuit is litigation, and so is going to trial. 

Following are some of the phases of litigation.

Filing a Personal Injury Lawsuit

To file a formal lawsuit, you need to complete the following steps:

• The complaint is a formal legal document that you must draft just right, because even a “minor” error could result in serious negative consequences. Your best bet is to hire a lawyer to draft your complaint. Never rely on a template you find on the Internet.
  
• You must pay a filing fee to the court clerk to initiate a lawsuit. The amount could be significant.
  
• “Service of process” is where you have a neutral third party deliver the complaint and summons to the defendant (the party you are suing). Oregon applies strict rules on how you must serve process.
  

Many claimants file a formal lawsuit to meet the statute of limitations deadline.

Pretrial Discovery Process

At the time you file your lawsuit, you might lack sufficient evidence to win in court. And if you can’t win in court, why should the defendant settle with you? 

Courts resolve this dilemma by allowing each party to access evidence that is in the other party’s possession. If either party refuses to cooperate, the court can sanction them. This evidence-gathering process is known as pretrial discovery. 

It allows both sides the use of the following four legal weapons:

• Depositions (under-oath cross-examinations)
• Interrogatories (written questions demanding under-oath answers)
• Demands for production (a demand to examine physical evidence and copy documents)
• Requests for admissions (requests to admit certain facts that aren’t worth litigating)

The discovery process can take significant time to complete. 

The Hybrid Strategy: Settlement Negotiations and Litigation

The hybrid strategy involves efforts at both settlement and litigation.

Attempt to Settle

Just as in the settlement strategy, you should first attempt to settle your claim out of court.

Take Your Claim to Court

If the opposing party refuses to settle, you can file a formal lawsuit. One of the main reasons to do this is to gain access to the pretrial discovery process. Once the discovery process is complete, both parties’ bargaining positions may have altered significantly due to the impact of the new evidence.

Re-Open Negotiations

Hopefully, your bargaining position improved as a result of the pretrial discovery process. You can use significant improvement in your bargaining position to force settlement negotiations to reinitiate. After all, if the opposing party continues to refuse to negotiate, they will likely experience defeat at trial. 

Sign a Settlement Agreement

Once you reach an agreement, your lawyers can hammer out the terms of a written settlement agreement that you and the opposing party can sign. 

A Skilled Portland Personal Injury Attorney Can Help You Turn Your Claim Into Compensation

Claims don’t turn themselves into compensation. Settlements and lawsuits can do this, however. An experienced Portland personal injury lawyer can supply the knowledge and hard work necessary to turn your claim into a generous cash settlement.

Contact Tillmann Law Personal Injury Lawyers at (503) 773-3333 for a free consultation to discuss your claim and the compensation you can seek.