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Personal Injury: How Long Will a Lawsuit Take?

Everyone who has suffered a serious injury asks "how long will my case take?"

In most cases, the answer is one year or less.

In the hands of a certified specialist, recognized for special training and skill by The State Bar of California, it is possible in most Northern California counties to bring a lawsuit for personal injuries to conclusion in one year, providing the lawsuit is promptly filed and aggressively prosecuted. Defendants gain from delay and every effort has to be made to push for the earliest possible trial date.

One sign of unsophisticated legal advice is when the claimant is told that it is necessary to allow an injury to heal before being able to decide whether or not a settlement should be made. A recommendation of this type is rank amateurism because 99% of all cases will settle. The only question in most cases of good liabililty is what amount is fair and reasonable under the facts of a given case and what can and should be done to maximize the recovery for the injured plaintiff.

It is not until all the facts are fully understood that a proper determination can be made and the nature and extent of the injury is only one of several critical factors necessary to evaluate settlement prospects. Other equally critical considerations include: poor/good liability, poor/good defenses, extent of insurance coverage, relationship of coverage level to overall level of reasonable compensation, relationship of property damage to personal injury, prior medical conditions, related/unrelated complications, work history, and how well do the parties present, i.e. how will a jury relate to the claimant and the general facts of this case.

When viewed in this context, a skilled trial lawyer must make many decisions and recommendations before a settlement goal can be determined and the nature and extent of the claimant's injuries, while significant, is only one of many factors to be evaluated. If a lawyer reports that he/she will not move forward on a case involving a serious injury until the medical condition has resolved, consider hiring another lawyer fast.

One mistake that often happens when the lawyer's or client's goal is to settle without going to trial is that the suit is not filed until after settlement negotiations have failed and the process is delayed.

To begin a lawsuit with the goal of obtaining the best possible settlement without risking trial is a worthwhile goal, but unless the defendant and his/her insurance carrier knows that you are determined to take your case to trial, it will never settle. For this reason, never suggest or say to an insurance adjuster that you are interested in an early settlement. Once a defendant knows that your goal is to settle, only the smallest settlement offers will be made because the carrier expects you to give up early at a low price.

The best recoveries are obtained with a thoughtful, aggressive lawyer pushing your case who has a reputation for taking cases to trial and obtaining good results in the courtroom.

Most importantly, one of the critical factors that controls whether or not a specific case can and will settle is the amount of insurance coverage available to satisfy a claim.

Today it is virtually impossible to determine the level of coverage until after a lawsuit is filed, served and the defendant has been required to state under oath the amount of insurance coverage available to satisfy the claim.

When a serious injured person has a claim reasonably valued substantially more than the available insurance coverage, that case can and will settle early.

In cases where the coverage is many multiples of the reasonable value of the claim, for example in the case where the claim value is $50,000 and the coverage is $300,000, the likelihood of an early settlement is generally less because the insurance company is not at risk for not settling within policy limits and thereby putting its insured at risk. In cases where the reasonable value of the claim is $50,000 and the coverage is $50,000, early settlement is much more likely.

In automobile injury cases where the defendant's coverage is substantially lower than the amount of the claim, it is also necessary to make a claim against the injured person's uninsured/underinsured, often referred to as UM, coverage. So when an initial settlement with the defendant's carrier will provide a small recovery, it can be possible in cases where there is sufficient UM insurance to obtain additional compensation though UM arbitration.

Generally speaking cases subject to arbitration take longer than court cases because of the increased use of delay tactics by insurance companies. Kaiser Permanente medical malpractice arbitration has been a good example of delayed justice that has been condemned by California appellate decisions. Mandatory arbitration has been endorsed by the California Supreme Court and binding arbitration clauses in many consumer contracts have been recognized and enforced. Unfortunately, arbitration is outside of the legal system. Arbitrators need not follow the law, can do as they please and there is no appeal. Chief of the sins of arbitration is that these cases can and do drag on much longer that regular court cases which are usually moved forward by active judicial supervision under California's "fast track" litigation philosophy. That philosophy serves the interests of plaintiffs and when there is a well coordinated litigation plan and aggressive representation by a skilled lawyer, results in meritorious case.

"How long?" depends on the nature of each case, but in serious injury cases the time can be shortened dramatically by filing, serving and aggressively prosecuting the claim, demanding the earliest possible trial date.

Whenever a case drags on for more than a year, it is time to obtain a second opinion from a more experienced trial lawyer.

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