EVERY PERSONAL INJURY CASE IS UNIQUE AND HAS IT’S OWN TIME FRAME
Every personal injury case has its own rhythm and time-frame, so each case will take as long as it needs to take for the client to get all of the treatment they need from their healthcare providers and to reach maximum medical improvement from the accident. The accident obviously caused deficits in their life; pain and the inability to do certain physical things they could do before, perhaps missing work or not being able to go bowling or to do chores; they may have to learn to live with and manage pain.
These types of damages are incurred in an accident and. Eventually, the person gets to the point where their healthcare providers will clear them and say there is nothing more that medical science can do for you; the orthopedic doctor has done their thing, the neurologist has done their thing and the physical therapist likewise; all tests are all done and you are released from medical care. It is then that personal injury attorneys shift into high gear and begin the claim process; obtaining all medical records, bills and receipts for out-of-pocket expenses, test results and all lost wage documentation for their client and put it all together.
Then, the attorney will review everything, so as to understand what happened to them, in order to be able to express the degree of pain and suffering, inconvenience and discomfort, loss of quality of life, possible scarring and disfigurement to the insurance company, as well as to develop a value for all of it. While it’s true that it’s impossible to put a value on pain and loss of quality of life. That’s why the attorney earns their 33 1/3 percent contingency fee that is taken from the lump sum settlement that includes medical bills and lost wages and pain and suffering.
All of that information is submitted to the insurance company and the case is negotiated; probably 98-99% of cases are settled out of court through negotiations between the client’s attorney, the insurance company adjuster and the opposing parties, all of whom are looking to reach a settlement amount the client is happy with. If the client is not happy with the final amount the insurance company is willing to pay, the client has to choose between taking it or filing a lawsuit, which only happens about two percent of the time because everyone has an incentive to settle a claim out of court, given that trials can be long and costly for everyone.
Virginia personal injury case statute of limitations
In Virginia, a person in an accident case has two years from the date of the accident to either settle their case or file a lawsuit. The filing of a lawsuit stops the statute of limitations and sets another series of smaller statutes of limitations in motion; the client has another year to try and settle the case with the insurance company if the client is still treating and didn’t get well within two years.
You file the lawsuit to preserve the client’s rights, not to serve the defendant, the person who injured your client; the attorney will just file the lawsuit, without being actively involved in fighting it at that point; they are just buying another year for them to get well. Hopefully, they get well within that third year and, if they do, the case may be able to settle.
If the client gets better, then most of the time you’ll settle it before that year is up, but if they’re still not well by the end of that third year, it’s necessary to decide whether you want to serve the defendant, which means having the lawsuit papers given to a sheriff or a private process server to track down the defendants and hand them a copy, which is called service of process, or you can take what’s called a voluntarily nonsuit.
A voluntary nonsuit is something available in Virginia, in which you file a document asking the court to temporarily dismiss your lawsuit. It is entered by a judge of the Circuit Court, and says that your case is being dismissed without prejudice but that you’ll be re-filing it again within six months of the date nonsuit order is signed by the judge. This buys you another six months for the client to perhaps get better and try and settle the case.
If you can’t settle it and your client is still not well by the end of six months, you re-file your lawsuit; you just take another clean copy to the clerk of the court and have it stamped and filed before the six months is up. If you do that, it’s back on the court’s radar and you have another year to either settle the case or serve the defendant with the lawsuit.
If you don’t settle it within the year or serve the defendant, you lose all rights and you’re barred forever from any recovery. However, you’re moving into the second part of your third year, so you bought yourself up to four-and-a-half years from the date of the accident for the client to get well or negotiations to continue. There are no other options, there are no more nonsuits you can take, no more of the tricks of the trade to delay it for your client’s benefit. You now must either settle it at the end of this four-and-a-half-year period or serve the defendant.
Once you serve the defendant, then you are off and running, and there are time periods for you to do things and for the other party to do things under the Rules of Circuit Court. There is no set period of time for the lawsuit from the time the defendant is served to trial, but it can take as long as 18 months, depending on the complexity of the injuries to your client and the complexities of the issues and liability of the case.
Between interrogatories filed by both sides, request for production of documents filed by both sides during what is called discovery, doing requests for admissions, having your client undergo an independent mental exam by the insurance doctors to determine if all the injuries are reasonable and necessarily related to the accident; all of that takes time. Then comes scheduling and sitting down for depositions; the insurance company will take the deposition of your client, to talk about the accident, their injuries and their medical history and you will take the deposition of the driver of the car to establish that they were at fault.
These things can take up to a year and a half before you have a trial. There have been cases in which accident cases took more than five years before a final judgment is rendered for a client, although that is very unusual. Most – about 95 percent – of the thousands of personal injury cases I have handled over over 30 years have settled with my clients being satisfied and happy and the money they received was tax-free and came within the two-year original statute of limitations.
