While plaintiffs’ lawyers generally want to settle a case quickly, there are 5 common reasons why a personal injury case can take a long time to settle:
- the medical treatment is still ongoing,
- working the case up further may increase the settlement,
- there are still factual or legal issues to resolve,
- the court is backlogged, or
- the defendant delaying the process.
In this article I go into detail about what causes accident settlement talks to drag out. Also listen to our informative podcast on the topic:
1. The Medical Treatment Is Still Ongoing
If you have suffered serious injuries but have not reached maximum medical improvement (MMI), you will still have future medical bills. The amount of these future expenses is always uncertain.
If your lawyer settles a personal injury case, but then your condition does not improve the way it was supposed to, the settlement will not cover those additional expenses for future medical treatment.
This is generally why personal injury claims involving severe and long-term injuries take longer to resolve. Unfortunately, these are also the cases where victims build up significant medical expenses and feel financial pressure to settle the case.
Note that it also takes a long time to get your medical records certified, which is necessary for the court to deem them an authentic record of your medical history. Even getting copies of your records from your medical provider can take a while depending on how responsive their office is.
2. Working the Case Up Further May Increase the Settlement
Your lawyer may deliberately delay a settlement in order to procure evidence that can increase the value of the case. That evidence can show the extent of your losses or who was responsible for the accident. It can include:
- securing testimony from an expert, like a vocational expert, that can show the extent of your financial losses, or
- finding an eyewitness to the accident.
Personal injury attorneys may also delay a settlement if there is a similar case that is pending in court. If the outcome of that other case could increase the value of your claim, it can be wise to delay the settlement discussions.
Patience is key during the negotiation process.
3. There Are Legal or Factual Issues to Resolve
Cases may also take a long time to settle if there are important legal or factual questions that have not been resolved. Factual disputes can be questions about:
- who was at fault for the accident, or
- the true cost of your medical care and lost wages.
For example: Paul slips and falls while crossing Abigail’s property on a well-known route that many people take. Under premises liability laws, Abigail may be liable if she knew that lots of people crossed her property at this spot but failed to reasonably take care of it. Abigail’s knowledge and the steps she took to care for the property are factual disputes.
The more complex the case and the more parties involved, the more time it may take to resolve factual disputes. Some of the more complicated cases involve:
- trucking accidents
- self-driving cars
- Ubers and Lyfts
- multi-vehicle crashes
- hit-and-runs
Even if the factual circumstances of the accident are clear, they may fall into legal gray areas where the law is unclear or likely to change in the near future.
For example: Paul’s accident on Abigail’s property happened in California in 1993. At that time, the California Supreme Court was hearing a case and seemed likely to stop classifying victims as invitees, licensees, or trespassers for the purposes of premises liability and personal injury law.1
Whenever there is a legal or factual dispute, it can delay the settlement process. The value of the case can span a wide range based on how the dispute resolves. You will expect a settlement towards the higher end, while the defendant will make offers close to the lower end or will refuse to settle, at all. With so much room between the expectations of the parties, settlements can be difficult to strike.
4. The Court Is Backlogged
If the court is backlogged, then there will be more time between filing the personal injury claim and the trial date. Important hearings, including the settlement conference, will be pushed further into the future, as well.
Without the looming deadline of the trial there is less pressure and more time to settle. This can allow defendants to drag out the case in the hopes of wearing you down until you are willing to accept a smaller settlement.
5. The Defendant Is Delaying the Process
There are numerous ways for defendants to prolong the process. Some of them utilize these strategies to stretch the case out for as long as possible. They generally do this if they think that you are in a financial pinch and need the money from the settlement as soon as possible.
These defendants utilize that financial pressure by refusing to settle quickly. As time passes, you need the proceeds from the settlement more and more. You become eager to settle, and more willing to lower your expectations and accept a smaller amount.
Defendants can do this by:
- making it difficult for you to serve them with the lawsuit,
- moving their assets into companies that are not a part of the lawsuit or giving it to friends or family members,
- filing frivolous claims and defenses,
- refusing to comply with discovery requests, or
- continually postponing meetings or important events, like depositions.
How long does a personal injury lawsuit take?
A personal injury case takes anywhere from a few months to several years.
Some cases settle very quickly. This can happen if you accept the insurance company’s initial settlement offer. It can also happen if your injuries are not very severe, you have already reached MMI, and there is little doubt that the defendant was liable for the accident.
Other cases take much longer. If the defendant is paying the recovery out of their pocket, they are less likely to settle and hope for a verdict in their favor. If your injuries were severe and expensive, or if they will cause a lasting disability, the case will likely take much longer, as well. If an appeal is made from the case, it can drastically increase the timeframe.
What is the personal injury claim process?
After the accident, you will receive medical attention. At some point in the next couple of weeks, an insurance adjuster from the defendant’s insurer will approach you. The adjuster will make an initial settlement offer.
This offer is designed and timed to seem like it will adequately cover your losses. However, what it really does is drastically underpay you in order to protect the insurance company’s bottom line.
If you accept the initial settlement offer, you will also have to sign a waiver that releases the insurance company from future legal action over the accident. This ends the personal injury claim.
The Demand Letter
If you do not accept the initial settlement offer, the next step is to prepare and send a demand letter. This letter:
- details what happened in the accident,
- describes your injuries,
- states who was at fault for your injuries,
- demands an amount of compensation that would adequately cover those injuries, and
- informs the defendant of your intention to file a personal injury lawsuit if the demand is not met within a certain amount of time.
The demand letter is usually sent to:
- the individual person who caused the accident,
- that person’s employer, if the person was on-the-job at the time of the accident, and
- the person’s insurance company, usually the auto insurance company after a car accident.
The defendant can respond to the demand letter by:
- paying the amount demanded,
- making a counteroffer to settle the case for a lesser amount, or
- refuse the demand outright.
Filing the Lawsuit
If you and your personal injury lawyer are not satisfied with the defendant’s response, you can file the complaint. The complaint starts a personal injury lawsuit. It is filed in court and is served on the defendant. It presents your story, reiterates the demand for compensation, and explains why the defendant should be made to pay it.
The defendant then files an answer to the complaint. In the answer, the defendant responds to every allegation in the complaint by either:
- admitting it,
- denying it, or
- saying that there is not enough information to admit or deny it.
Discovery
At this point, both sides engage in discovery. This is when your lawyer and the defense team investigate the case and gather evidence. This can take the form of:
- eyewitness statements,
- police reports,
- medical records from your healthcare providers,
- depositions, and
- interrogatories.
The evidence that each side uncovers will give them a better idea of how much, or whether, you deserve to be compensated. As evidence is gathered, it will spur the personal injury settlement negotiations.
In the rare event settlement talks stall, you can always go to trial.
Settlement or Trial
As the discovery process continues, the court hearing the case will urge the parties to settle it. The judge may require the parties to mediate the case, and will generally schedule a settlement conference to facilitate discussion.
If no settlement is reached and the trial date arrives, the accident case will go to trial. However, every few personal injury cases make it to trial. Most settle before then.
A Lawyer Can Help
To make an informed decision about when to settle the case, you should strongly consider hiring an accident attorney from a reputable law firm.
Many victims favor a quick settlement in order to receive compensation quickly. However, the legal advice of many personal injury and car accident lawyers is often to hold out for as long as possible.
Victims have a legal right to full compensation for all of their losses, from pain and suffering to property damage. Victims eager to settle often forgo a substantial portion of what they are entitled to receive.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Delay and the Dynamics of Personal Injury Litigation – Columbia Law Review.
- The duration of personal injury litigation – Research in Law and Economics.
- Settlement in the Personal Injury Case: The Imperfect Art – Litigation.
- Distortions and deceptions in self presentation: Effects of protracted litigation in personal injury cases – Behavioral Sciences & the Law.
- A Speedier Remedy in Personal Injury Cases – Insurance Law Journal.
