Litigation in injury claims

In plain English: litigation is the process of resolving a dispute through the courts. For an accident claim, it starts when you file a claim in court and ends with a settlement, a judgment after trial, or the case being dropped.

Why a claim ends up in litigation

Most injury claims settle with an insurer without any court case. Litigation usually starts because the insurer denies liability, the offer is far below what the claim is worth, the limitation period is about to run out, or the injuries are serious enough that proper evidence gathering is needed. Starting proceedings doesn't mean you'll go to trial. It often just moves the insurer from an adjuster to a lawyer and puts the case on a timetable.

The main stages

1. Pre-action steps. In England and Wales, pre-action protocols require you to set out your claim and give the defendant time to respond before issuing. Many US and Canadian lawyers send a demand letter first.
2. Pleadings. You file a claim (a complaint in the US, a claim form and particulars of claim in England and Wales, a statement of claim in much of Canada). The defendant files a defence or answer.
3. Evidence exchange. Called discovery in the US and Canada and disclosure in England and Wales. Documents are exchanged, and in the US and Canada parties are usually questioned under oath in depositions or examinations for discovery.
4. Experts. Medical, engineering and financial experts prepare reports on injury, cause and loss.
5. Settlement attempts. Mediation, settlement conferences or formal offers. In England and Wales, Part 36 offers can carry costs consequences for a party who rejects a reasonable offer.
6. Trial. A judge, or in many US cases a jury, decides liability and damages.

What litigation is like for you

Your lawyer does most of the work, but you'll be asked to gather records, answer written questions, attend medical examinations and possibly give evidence under oath. It can take a year or several years, depending on the court's backlog and how complex the injuries are. Delays are often partly about waiting until your medical recovery is clear enough to value the claim.

Cost and risk

In the US, most injury lawyers work on a contingency fee and each side usually pays its own legal costs. In England and Wales and in Canadian provinces, the loser is usually ordered to pay part of the winner's costs, although lower-value injury claims in England and Wales have special cost protections. Ask your lawyer to explain your personal cost risk in writing before issuing.

Next: insurance claim vs lawsuit · settlement vs trial · discovery.

Related terms