For many, the word lawsuit conjures up courtroom dramas from the movies and television. In reality, most lawsuits never see the inside of the courtroom. The process of receiving compensation is generally far less dramatic and more a matter of going through several steps with the assistance of an experienced attorney to prove liability, justify the value of your claim, and obtain the compensation available for you through Illinois statutes.
Here is a look at the steps involved in the personal injury claims process in Chicago.
Determining Fault and Insurance
From motor vehicle accidents to apartment fires and birth injuries to nursing home neglect, there are many ways that individuals in Chicago can become injured due to someone else's negligence. Negligence refers to careless or reckless behavior contrary to an individual's duty in a given circumstance to avoid causing harm to others. There are many forms of negligence, and it is the cause of most accidents that result in injury.
One of the initial services your attorney will perform at the start of your claim is a thorough investigation of your accident. This investigation will help them determine whose negligent actions led to your injury and the associated liability insurance policy that can provide your compensation.
Valuing the Claim
Once it is determined who the at-fault party is, the next order of business is determining how much compensation is owed to you for the financial and psychological impacts you suffered as a result of being injured.
Illinois allows personal injury claimants to seek compensation for expenses (also known as economic damages) and impacts (non-economic damages) such as:
- All reasonable costs associated with the medical treatment of the injuries you sustained.
- Property damage you suffered in the same accident you were injured, such as repairing or replacing the vehicle you were driving when you became injured in a car accident.
- Lost wages for the period after your accident in which you were too injured to work.
- Loss of earning capacity if the injury you sustained results in permanent disabilities and you are no longer capable of earning an income.
- Physical pain and suffering, emotional distress, loss of the enjoyment of life, and other psychological impacts stemming from the accident and the injury.
Because psychological costs can be compensated in addition to out-of-pocket costs, valuing a claim is not simply a matter of adding bills and receipts. Instead, a personal injury attorney generally waits for their client to achieve maximum medical improvement, when their physician determines that they have made all the meaningful progress in their recovery that they are likely to make, even if treatment continues.
This is a good time to value the claim because your condition has stabilized, and you have lived with the injury long enough to understand the totality of longterm costs.
Some of the factors that will be considered by the attorney when valuing your claim include the amount of insurance that is available to compensate you, the severity of the injury you sustained, and the presence of permanent disabilities that will likely impair your ability to earn an income.
Once a value has been established for your claim, your attorney is ready to submit it as a demand for payment against the at-fault party's associated liability insurance policy. When the insurance provider receives the demand, they assign the claim to a claims adjuster. A claims adjuster is an insurance company employee whose job is to protect the insurance company's bottom line by evaluating claims and determining whether to pay for your injuries.
Regardless of how polite and seemingly concerned they are on the phone, it is important to understand that the claims adjuster's job is not to determine how much will fairly compensate your claim but how to reduce or eliminate the claim on behalf of the insurance company.
Negotiating a Settlement
After the claims adjuster has had the opportunity to investigate the accident, they can respond to your attorney's demand in one of three ways.
- They can accept their insured's liability and process the claim for payment.
- They can deny the claim. If they do this, they must notify you and your attorney of the denial and provide a reason.
- They can offer to settle the claim out of court for less than its established value.
The vast majority of personal injury claims conclude through a settlement agreement. However, the initial settlement offer made by an insurance claims adjuster is generally less than half the claim's value. Your attorney will work on negotiating with the claims adjuster to get them to increase their offer.
Filing a Lawsuit
If the at-fault party's insurer fails to compensate your claim either by paying the demand in full or entering into a settlement agreement with you, the claim can be filed as a personal injury lawsuit. This is a legal claim filed in civil court that requests a judge or jury to hear the matter and decide on liability and compensation.
In Illinois, personal injury claimants generally have two years from the accident to file a lawsuit. This is known as the statute of limitations and is an extremely important deadline for your claim. If you fail to file the claim as a lawsuit within the statute of limitations, you will generally lose your right to use the court process when seeking compensation for the expenses and impacts of the injury you incurred. Because a lawsuit is a legal ramification for an insurance carrier's refusal to pay out on a third-party claim against the policy of their insured, if you allow the statute of limitations to expire, you are extremely unlikely to obtain a settlement offer either.
One of the important services your attorney will provide is a management of the timeline of your claim to ensure that your right to seek compensation through a lawsuit remains intact. It should be noted, however, that even after a lawsuit has been filed, the at-fault party's insurance provider can still offer to settle the claim. In fact, settlement offers can continue being made even after the trial has begun, as long as the court has not yet decided on the matter.
From the initial investigation of the details of your claim, your attorney will begin gathering the evidence needed to prove liability and justify the claim's value. Once a lawsuit has been filed, the case enters the discovery phase. During this time, your attorney can request evidence held by the at-fault party, depose witnesses, and arrange for expert witnesses to provide testimony in court if needed.
It is important to remember that while the attorney is gathering evidence to support their position, the insurance company is also gathering evidence. Often this will involve deposing you or witnesses, seeking an independent medical examination, or even asking for you to answer questions in writing, known as interrogatories.
Some of the types of evidence that are commonly considered in personal injury claims include:
- A police report or an official report of the accident
- Photos of the accident scene or the hazard that caused the injury
- Documentation of expenses, such as medical bills, auto repair bills, and wage loss information from your employer
- Surveillance video from the area where the accident occurred that shows how the accident happened
- Information from eyewitnesses as to what they observed when the accident took place
While the vast majority of personal injury claims are resolved through settlement, a small number will go to court. Because it is impossible to predict which cases will be resolved by settlement and which will result in litigation, your legal team needs to treat each case as though a jury would decide it. While settlement negotiations continue, the days before a trial are a frenzy of activity, as your legal team prepares evidence exhibits, files motions, and attends pre-trial conferences.
During the trial, your attorney will provide services related to presenting your claim to a judge or jury, including examining witnesses, discussing evidence, and delivering opening and closing arguments.
Collecting Your Settlement or Award
After your claim, the proceeds of your settlement or award will be sent directly to your attorney, who will deposit the funds in a trust account. From that account, they will deduct the percentage of the funds designated as payment to them in the contingent fee agreement.
If applicable, they will also use a portion of the proceeds to satisfy any medical liens placed on the award. A medical lien is a legal claim from a creditor such as a health care provider or a group health insurer that provides them the right to collect payment for treatment.
Once resolved, your attorney will meet with you to finalize your case and turn the remainder of the compensation over to you. Because the Internal Revenue Service does not consider compensation for injuries income, you will not have to pay taxes on your award except in two circumstances:
- You deducted medical expenses from your previous year's tax burden and then received compensation for medical expenses through a settlement or award. You are expected to include your deduction amount as income for the tax year in which you received the award.
- You received punitive damages. Because punitive damages are not awarded to compensate you for an injury, the IRS may tax it.