Many people treat the legal terms “claim” and “lawsuit” as interchangeable. They are not the same, however.
You can file a claim without ever filing a lawsuit, which is how most personal injury cases are resolved.
What Is a Claim?
A claim is a legal demand for compensation. In the personal injury context, a claim is a demand by an injured person for compensation from someone who is legally liable for the injury. This party is usually the party that caused the injury. Most injured people, however, file claims against insurance companies.
What Is a Lawsuit?
A lawsuit is a formal public proceeding in which a court decides whether the claim is valid. If it is valid, the court will also decide how much money to award the claimant. A lawsuit involves many procedures that must comply with meticulous rules, such as the Florida Rules of Civil Procedure and the Florida Evidence Code.
The typical personal injury claim begins with a demand letter from the injured party’s personal injury lawyer to the appropriate insurance company. For example, if a dog mauls the claimant, they might send a demand letter to the dog owner’s insurance policy. If the claimant suffers a car accident injury, they will probably send a demand letter to their own PIP insurance policy.
A demand letter summarizes the claim, explains why the insurance company is liable for the claim, and demands payment. A demand letter may or may not include a specific dollar amount. The insurance company will respond to the demand letter with a reservation of rights letter, in which they reserve the right to deny the claim if it lacks merit.
The Negotiation Stage: A Game of Legal Ping-Pong
The negotiation stage of resolving a personal injury claim resembles a game of ping-pong in which the two sides trade offers and counteroffers. The negotiation stage could end with an acceptable settlement for both sides.
The claimant can file a lawsuit anytime; however, filing a lawsuit will not necessarily end negotiations. The parties can continue negotiating even after the claimant files a lawsuit, right up until a jury reaches a verdict. Courts encourage parties to settle the claim to reduce their busy dockets.
Alternative Dispute Resolution (ADR)
ADR refers to a variety of creative ways of resolving disputes. Although negotiation is by far the most popular form of ADR, most people who use the term ADR are not referring to negotiation. Except for negotiation, the most popular forms of ADR are:
- Mediation, where a third party coaxes the parties into a settlement;
- Arbitration, where the parties hire a private judge to impose a resolution on them, and
- More creative ADR techniques, such as mock trials
ADR is usually cheaper and quicker than resolving a claim at trial.
The Settlement Agreement
Never settle a claim on a handshake. In fact, never settle a claim with anything less than a professionally drafted settlement agreement. Your lawyer can draft a settlement agreement, but if the other party drafts it, your lawyer should scrutinize it before you sign it. A settlement agreement typically ends a claim. If the liable party refuses to pay even after signing a settlement agreement, the claimant can sue the liable party under contract law.
For most parties, filing a lawsuit is either the last resort after negotiations fail or (more commonly) a strategy to gain an advantage in continuing negotiations.
How To File a Lawsuit
Filing a lawsuit requires the claimant to complete the following steps:
- File a formal complaint with the court clerk. A lawyer should draft this document because every sentence has consequences.
- Pay the court filing fee.
- Notify the defendant of the lawsuit. The claimant cannot do this themselves, and precise procedures apply.
The defendant will usually respond with a formal answer, a legal document responding to the allegations in the complaint.
Pretrial discovery includes the following evidence-gathering tools:
- Depositions: Out-of-court testimony by witnesses each side intends to call at trial.
- Interrogatories: Written questions that the other side must answer under oath.
- Demands for Production: Demands to examine evidence in the other party’s possession. This could include copies of documents and physical evidence, such as a wrecked automobile.
- Requests for Admission: Each side will ask the other side to admit to facts that they don’t want to bother proving. These facts are usually not in dispute.
Evidence that emerges during the pretrial discovery process can give new life to stalled negotiations by giving one side a critical advantage, thereby forcing a settlement.
Parties file motions with the court when they want to ask the judge to take some action. Common motions include:
- In a Motion to Dismiss, a defendant asks the judge to throw the claim out of court.
- In a Motion to Suppress, one party asks the judge to ban specific evidence from the trial (illegally seized evidence, for example).
- In a Motion for a Change of Venue, a party asks that the judge transfer the trial to another location.
A party might file dozens of motions during a lawsuit.
The trial is where the court decides the case and imposes a resolution on the parties. At trial, the parties question witnesses, present evidence, and argue their positions. Usually, a jury resolves the claim. In some cases, the judge decides the case.
A Tampa Personal Injury Lawyer Can Help You With Either a Claim or a Lawsuit
If you attempt to settle your case by filing a claim with an insurance company, a lawyer can negotiate with the insurance company for you. If you decide to file a lawsuit, a lawyer Winters and Yonker, P.A. can draft the necessary documentation and represent you at trial. An experienced personal injury lawyer in Tampa can plan and execute a strategy to maximize your chances of receiving generous compensation. Contact us to schedule a free consultation.