Steps in a Massachusetts Personal Injury Lawsuit Settlement
If you have been injured because of the negligence of someone else, you may be able to recover the cost of your injury through a personal injury lawsuit. In Massachusetts, personal injury lawsuits are filed in a district court or the Boston Municipal Court.
Not all accidents need to go to court. Every accident is unique and if an injury has occurred, there must be proof that the accident and injury was due to the negligent actions of an individual, business, government body or other party. Most accidents are traffic accidents, or are slip, trip and fall type accidents. As Massachusetts is a no-fault state for car accidents, you cannot make a claim against another driver, even if they are to blame, if the cost of medical treatment for your injury was less than $2,000. You would claim damages through your own insurer based on your own PIP insurance.
You are strongly advised to talk to a personal injury attorney after an accident in which you were injured before taking any action by yourself. Unless the circumstances surrounding the accident are very clear, insurers typically challenge any claim made against their client. You are far more likely to obtain fair compensation in a lawsuit settlement if you have professional legal help.
Initial consultation with an attorney
The good news is that many personal injury attorneys work on a contingency fee arrangement. This means that if the attorney takes on the case because there are good grounds for a settlement, the legal fee is paid out of the final settlement payment. If the lawsuit is not ultimately successful, the fee is normally waived. Experienced personal injury attorneys will carefully assess the evidence available for a lawsuit and will make a decision whether to take on the case based on the likelihood of success. The majority of personal injury claims are settled without having to go to court, but there is often a considerable amount of time and negotiations involved before it gets to this point.
Most attorneys will not file the lawsuit in a civil court until all the facts of the accident are established, as much evidence obtained of who the defendant is, whether the defendant was insured and how much damages are to be claimed. Massachusetts has a three year statute of limitations for personal injury lawsuits to be filed from the date of the injury, but most lawsuits will be filed within the first year. Attorneys may wait until as much medical treatment has been given as necessary to establish the full cost of treatment as well as other damages, such as lost earnings, possible future medical treatment and lost earnings. The attorney may recommend claiming non-economic damages such as an amount for pain and suffering or even punitive damages if there is evidence of excessive negligence, e.g. if the accident was caused by a drunk driver.
Once a viable case has been established, witnesses contacted, a police report obtained (if relevant), damages calculated, the attorney will then proceed to file the lawsuit with a district or municipal court.
The path to settlement
Once a “complaint” has been filed with the appropriate court, the court will issue a summons to the defendant. The complaint will establish the grounds for the lawsuit, how the injury happened, why the defendant is named as the party at fault, what evidence there is and how much is claimed. If the defendant has an insurer, then the insurer will normally appoint an attorney to act on their behalf. If the case is convincing, then the insurer may decide that it will be prudent to negotiate a settlement earlier rather than later or after the case goes to court. If there is no insurer involved, then the defendant may use their own attorney to act on their behalf.
The defense attorney may decide that the claim is worth contesting. Massachusetts has a modified comparative fault rule for personal injury claims. This means that if the plaintiff can be shown to have been partially at fault, then any settlement will be reduced by the assessed percentage fault. The plaintiff must be less than 50% to blame for an accident to be able to obtain any compensation in Massachusetts. This is a common method defense attorneys will use to contest a claim against their client and the risk that this will be contested would be factored in by the plaintiff’s attorney.
The defendant’s attorney may also contest any other aspect of the claim, such as the extent of the injury or injuries, the cost of medical treatment, the amount claimed for pain and suffering etc. typically, where there is any challenge to the lawsuit, negotiations go back and forwards for some time, and can take months to resolve. Early on, each side may meet to show what evidence each side has to support their argument. This is called the discovery process.
The defendant’s attorney may demand that the plaintiff is examined by a medical expert and that there is a face to face pre-trial meeting or mediation in court before a judge for questions and answers to be made by each side. The defendant may call on the judge to dismiss the lawsuit based on their assessment that there is a lack of evidence to establish fault, although this rarely successful. If it looks as if there is not going to be an early resolution a trial date may be scheduled, but more often than not, a settlement is made without having to go to a trial.
Settlement may take months and could be decided by a trial
In a minority of cases, particularly if the amount of compensation demanded is substantial and is contested by the defendant or insurer’s legal team, the plaintiff’s attorney may decide to proceed to trial. At the trial which may be presided over by a judge and jury, all the evidence is assessed all over again, attorneys working for both sides state their case and the final decision made by the court. This may mean that the original amount claimed in the lawsuit is awarded or a different amount decided on. Either side may then decide to appeal the court’s decision, raising the stakes considerably as the side that loss the will have additional legal and court costs to pay.