What to Know Before Filing a Personal Injury Lawsuit

Published on October 10th, 2023

Filing a personal injury lawsuit is a complex legal process, and anyone considering taking action should be well-informed and prepared.

Let’s take a look at the most important things people should know before attempting to file a personal injury lawsuit:

Understanding Personal Injury Lawsuits

Understand what constitutes a personal injury. Personal injury claims typically arise when someone is injured due to the negligence, recklessness, or intentional actions of another party. Common personal injury cases involve car accidents, slips and falls, medical malpractice, product defects, and more.

Consulting with the Right Attorney

Always consult with an experienced personal injury attorney before taking any legal action. Many personal injury attorneys offer free initial consultations, meaning you have nothing to lose when seeking an initial opinion. An attorney can assess the merits of your case, provide legal advice, and guide you through the process.

Hiring an experienced personal injury attorney who specializes in the type of case you have can significantly impact the strength of your case. A specialized attorney can guide you through the legal process, help gather evidence, negotiate with insurance companies, and represent your interests in court if necessary. Some of the most common types of legal specializations related to personal injury include:

  • General PI (many general PI attorneys/firms offer several specialized fields of representation)
  • Auto Accidents
  • Medical Malpractice
  • Product Liability
  • Premises Liability
  • Workers’ Compensation
  • Wrongful Death
  • Nursing Home/Elder Abuse
  • Construction Accident/PI
  • Maritime/Boating
  • Animal Injuries (dog bites, etc)
  • Aviation
  • Catastrophic Injuries (severe/life-altering injuries)
  • Pedestrian Accidents
  • Bicycle Accidents

Statute of Limitations

Be aware of the statute of limitations in your jurisdiction. This is the time limit within which you must file a lawsuit after the injury occurred. Failing to file within this time frame can result in the loss of your right to seek compensation. Consulting a local law firm or attorney is the best way to find the statute of limitations on your specific case.

With that said, there are a few types of personal injury lawsuits that may be given extensions to the statute of limitations. There are several ways in which a given statute of limitations may be changed for special situations:

Tolling of the Statute of Limitations

Tolling refers to the temporary suspension or pausing of the statute of limitations clock. In some cases, the statute of limitations may be tolled if certain conditions are met. Tolling is typically used for:

  • The injured party is a minor at the time of the injury, and the clock may not start running until they reach the age of majority.
  • The injured party has a legal disability or is deemed mentally incompetent, which may pause the statute of limitations until they regain legal capacity.
  • The defendant leaves the state or becomes absent from the jurisdiction, which may extend the time within which the lawsuit can be filed.

In some cases, the parties involved in a potential lawsuit may enter into a tolling agreement, which is a legal agreement to extend the statute of limitations for a specified period. This is often done when the parties are engaged in settlement negotiations or other pre-litigation activities.

Discovery Rule

In some states, the statute of limitations may be extended if the plaintiff could not have reasonably discovered the injury or its cause until a later date. This is known as the discovery rule and applies to cases where the injury is not immediately apparent.

Fraud or Concealment

If the defendant engaged in fraudulent or intentional concealment of facts relevant to the injury, some states may allow for an extension of the statute of limitations.

Continuing Violations

In cases involving ongoing harm or injuries caused by a continuous or repeated act, some jurisdictions may allow the statute of limitations to be extended to cover the entire duration of the harm.

Note: The availability of extensions and the specific rules governing them can vary widely from one jurisdiction to another. Additionally, whether an extension will be granted often depends on the facts and circumstances of each individual case and the discretion of the court. Always ask your attorney about any statute or limitations-related issues that may be pertinent to your case before pursuing legal action.

Evaluating the Strength of Your Case

Understand that not all injuries warrant a lawsuit. Personal injury attorneys are able to evaluate the strength of your case, considering factors like liability, damages, and the ability to establish negligence. Factors that will come up in any strong case include:

Clear Liability

The stronger your evidence of the defendant’s liability, the stronger your case. This might include witness statements, photographs or videos of the accident scene, accident reports, and expert testimony, if applicable.

Documentation of Injuries

Thorough medical records and documentation of your injuries are crucial. This includes medical diagnoses, treatment plans, prescriptions, and any other records that establish the extent and severity of your injuries.


You must demonstrate a clear link between the defendant’s actions (or negligence) and your injuries. This means showing that the defendant’s actions were a direct cause of your harm.


To recover compensation, you need to demonstrate the damages you suffered as a result of the injury. This can include medical expenses, lost wages, property damage, pain and suffering, emotional distress, and other economic and non-economic losses.

Witness Testimony

Eyewitnesses who can testify about the accident and its circumstances can significantly strengthen your case. Their statements can corroborate your version of events.

Expert Testimony

In complex cases, expert witnesses (such as accident reconstruction experts, medical experts, or engineers) may be needed to provide specialized knowledge and opinions that support your claim.

Consistent Statements

Ensure that your statements about the accident and your injuries remain consistent over time. Any inconsistencies in your account can be used to challenge your credibility.

Insurance Coverage

Understanding the insurance policies involved in your case and navigating the claims process effectively can be critical. This includes identifying all potential sources of compensation.

Medical Treatment

Always follow your doctor’s advice and attend all necessary medical appointments. Failing to seek or follow medical treatment can weaken your case. Injuries can potentially get worse if professional medical guidance is not followed, which can complicate or even nullify a previously strong case.

Compensation and Damages

Be aware of the types of compensation (damages) you may be entitled to, which can include medical expenses, lost wages, pain and suffering, emotional distress, and more. Your attorney will help you assess the potential value of your claim.

Types of Personal Injury Damages

In a personal injury lawsuit, “damages” refers to the financial compensation sought by the injured party (plaintiff) as a result of the harm or losses they have suffered due to the actions or negligence of another party (defendant). Damages are intended to provide compensation for various types of losses and injuries incurred by the plaintiff.

There are two main types of damages–Compensatory and Punitive.

Compensatory Damages

Compensatory damages are designed to compensate the plaintiff for actual losses and expenses incurred as a result of the injury. These damages are intended to “make the plaintiff whole” by reimbursing them for their losses. There are two major subtypes of compensatory damages:

Special Damages

  • Medical Expenses
  • Lost Wages
  • Property Damage
  • Out-of-Pocket Expenses

General Damages

  • Pain & Suffering
  • Emotional Distress
  • Loss of Enjoyment of Life
  • Loss of Consortium

Punitive Damages

Punitive damages are intended to punish the defendant for particularly egregious or reckless conduct and to deter similar behavior in the future. They are not meant to compensate the plaintiff for their losses but to penalize the defendant. Punitive damages are relatively rare and are typically awarded in cases involving willful misconduct, fraud, malice, or extreme negligence.

Insurance Coverage

Determine whether the at-fault party has insurance coverage that may cover your damages. Dealing with insurance companies is often a key part of personal injury claims. Parts of insurance plans commonly associated with personal injury litigation include:

Auto Insurance

Automobile insurance is highly relevant in cases involving motor vehicle accidents, such as car accidents, motorcycle accidents, and truck accidents. Various types of auto insurance coverage may come into play depending on a specific incident. The most common types of auto insurance used in PI litigation include:

  • Liability Insurance: This coverage pays for injuries and property damage caused by the insured driver to others. It’s a key source of compensation for victims of car accidents.
  • Uninsured/Underinsured Motorist Coverage: This coverage can provide compensation if the at-fault driver is uninsured or lacks sufficient insurance to cover your damages.
  • Personal Injury Protection (PIP) or Medical Payments (MedPay): These coverages can help pay for your medical expenses, regardless of who was at fault for the accident.

Homeowner’s/Renter’s Insurance

In cases involving injuries on another person’s property (premises liability), the property owner’s homeowner’s or renter’s insurance may cover medical expenses and other damages if negligence is proven. This applies to incidents like slip and falls or dog bites.

Commercial General Liability Insurance

If a personal injury occurs on a business property or as a result of a business’s activities, the business’s commercial general liability insurance may provide coverage for the injured party’s damages.

Medical Malpractice Insurance

Healthcare professionals and medical facilities typically carry medical malpractice insurance. This coverage can compensate patients who are injured due to medical negligence.

Product Liability Insurance

Manufacturers, distributors, and retailers often have product liability insurance to cover injuries resulting from defective or dangerous products. This can include items like defective drugs, appliances, or vehicles.

Workers’ Compensation Insurance

When a workplace injury occurs, workers’ compensation insurance is usually responsible for covering an injured employee’s medical expenses and lost wages. This applies to cases of on-the-job injuries.

Professional Liability Insurance

Professionals such as lawyers, architects, and accountants carry professional liability insurance (also known as errors and omissions insurance). This coverage can apply if the professional’s negligence leads to harm.

Commercial Auto Insurance

In cases involving accidents with commercial vehicles (e.g., delivery trucks), the employer’s commercial auto insurance may be involved in providing compensation for injuries.

Umbrella Insurance Policies

In some cases, individuals or entities have umbrella insurance policies that provide additional coverage above and beyond their primary insurance policies. These policies can come into play when the primary insurance coverage is insufficient to cover all damages.

Personal Injury Evidence

To succeed in a personal injury case, you generally need to show that someone else’s negligence or wrongful actions caused your injury. This may involve proving that the defendant owed you a duty of care, breached that duty, and that the breach directly resulted in your injuries. The most common types of evidence presented in personal injury trials include (but are not limited to):

  • Photographs/Videos of the incident
  • Medical records
  • Witness statements
  • Accident reports
  • Any official documentation from legal or regulatory agencies

Preservation of Evidence

It’s crucial to preserve evidence related to the accident, including photographs, physical evidence, and documents. This ensures that critical evidence is available for your case.

If you are looking at pursuing legal action related to a personal injury incident be sure to save all documentation regarding it. You can never be too prepared!

Negotiation or Litigation?

Be prepared for the possibility of negotiations with the at-fault party’s insurance company. Many personal injury cases are resolved through settlements rather than going to trial. Your attorney will handle negotiations on your behalf.

Specialized Negotiation

Many personal injury cases are resolved through negotiation with insurance companies. An attorney with strong negotiation skills can help maximize the compensation you receive. Be sure to look into attorneys with strong negotiation skills if you are not planning to litigate a case.

Factors Involved in Choosing Negotiation or Litigation

The decision of whether to pursue litigation or engage in negotiation in a personal injury (PI) lawsuit involves careful consideration of various factors. Both options have their advantages and disadvantages, and the choice often depends on the specific circumstances of the case. 

Strength of the Case

The perceived strength of the plaintiff’s case plays a significant role in the negotiation vs. litigation decision. If the plaintiff has strong evidence of the defendant’s negligence or liability, it may increase the likelihood of a favorable outcome at trial. Conversely, if the case has weaknesses, negotiation might be a more prudent option.


The extent and type of damages suffered by the plaintiff are important. If the damages are substantial and well-documented, it may be more attractive for the defendant to negotiate a settlement to avoid potentially larger jury awards in a trial.

Cost and Time

Litigation can be time-consuming and expensive. The costs associated with filing a lawsuit, conducting discovery, and going to trial can be substantial. Consideration is given to whether the potential recovery justifies the time and expense of litigation.

Risk Tolerance

The plaintiff’s risk tolerance and willingness to endure the uncertainty and stress of a trial are essential factors. Some plaintiffs may prefer the predictability and control offered by negotiation, while others may be more willing to take the risk of a trial for the chance of a larger award.

Privacy Concerns

Litigation is generally a public process, whereas negotiation can be more private. Parties who value confidentiality and wish to avoid the public spotlight may prefer negotiation.

Legal Costs

Consideration is given to the costs of legal representation. Litigation can be more expensive due to attorney fees, court costs, and expert witness fees. Negotiation may involve lower legal costs.

Time Frame

The timeline for resolution is also significant. Negotiation can often lead to a quicker resolution than litigation, which can be protracted due to court schedules and legal procedures.

Emotional Impact

The emotional toll of litigation on the plaintiff and their family is a crucial consideration. A trial can be emotionally taxing, while negotiation may offer a less adversarial and stressful process.

Legal Counsel’s Advice

The advice of legal counsel is invaluable in making this decision. An experienced personal injury attorney can assess the case’s strengths and weaknesses, provide guidance on negotiation strategies, and advise on whether to proceed with litigation.

Litigation & the Legal Process

If a settlement cannot be reached, understand the litigation process, which includes filing a lawsuit, discovery (exchanging information and evidence with the other party), pre-trial motions, trial, and potentially an appeal.

Potential Costs and Fees

Discuss attorney fees with your lawyer. Many personal injury attorneys work on a contingency fee basis, which means they only get paid if you win your case. Be sure to clarify the fee arrangement upfront. Here’s how a typical personal injury fee structure works:

Contingency Fee

Many personal injury attorneys work on a contingency fee basis. This means that the attorney’s fee is contingent on the successful outcome of the case. If the attorney does not win the case or secure a settlement, they do not charge a fee.

Percentage of Recovery

When a case is successful, the attorney’s fee is calculated as a percentage of the final settlement or award. This percentage can vary, but it’s often between 33% and 40% of the total recovery.

Costs and Expenses

In addition to the attorney’s fee, clients may also be responsible for reimbursing the attorney for any costs and expenses associated with the case. These costs can include filing fees, expert witness fees, court costs, and more.

Fee Agreements

Specific fee arrangements should be outlined in a written fee agreement between the attorney and the client. This agreement should clearly state the contingency fee percentage and how costs and expenses will be handled.

Attorney-Client Negotiation

Some attorneys may be willing to negotiate their contingency fee percentage, especially for cases with significant potential recoveries or unique circumstances. However, this is often handled on a case-by-case basis.

Before hiring a personal injury attorney, it’s advisable to discuss the fee arrangement and any potential additional costs or expenses to ensure that you have a complete understanding of the financial aspects of the representation.

Emotional Impact

Be prepared for the emotional toll that a personal injury lawsuit can take. It can be a lengthy and stressful process, and it’s essential to have a support system in place. The experience can be stressful, and emotionally challenging, and may lead to a range of emotional responses. Some common emotional impacts of personal injury litigation include:

  • Anxiety and Stress
  • Anger and Frustration
  • Depression
  • Fear and Worry
  • Grief and Loss
  • Isolation and Social Impact
  • Difficulty Concentrating
  • Loss of Self-esteem
  • Uncertainty and Insecurity
  • Resentment

It is important to stay mentally healthy and keep as clear a mind as possible during personal injury litigation. The symptoms listed above simply represent the most common types of emotional impact experienced by those involved with PI litigation. Seeking support from friends, family members, and mental health professionals can be beneficial during this time. 

Additionally, having an experienced personal injury attorney who can guide you through the legal process, negotiate with insurance companies, and advocate for your rights can alleviate some of the stress and emotional burden associated with litigation.

Alternative Dispute Resolutions

Alternative Dispute Resolution (ADR) methods are increasingly used in personal injury lawsuits as alternatives to traditional litigation. ADR can help parties resolve disputes more efficiently, often with less cost and time compared to going to court. 

The choice of ADR method often depends on the preferences of the parties, the nature of the dispute, and the stage of the litigation. There are several common types of ADR:


Mediation is a voluntary process where a neutral third party, known as a mediator, assists the parties in reaching a mutually acceptable settlement. During mediation sessions, the mediator helps facilitate communication and negotiation between the parties, but they do not make decisions or impose solutions. Mediation can be used at any stage of a personal injury case and is often successful in reaching settlements.


Arbitration is a more formal process in which a neutral arbitrator, sometimes with legal expertise, acts as a decision-maker. The parties present their cases, including evidence and arguments, and the arbitrator renders a binding or non-binding decision, depending on the agreement of the parties. Arbitration can be faster and less formal than a trial.

Settlement Conferences

Settlement conferences involve meetings between the parties and their attorneys, often with the assistance of a judge or magistrate. The goal is to encourage settlement by discussing the strengths and weaknesses of the case, potential outcomes at trial, and negotiated settlement terms.

Summary Jury Trial (SJT)

In an SJT, the parties present abbreviated versions of their cases to a mock jury. After hearing the evidence, the mock jury renders a non-binding advisory verdict. This process can help parties assess the strengths and weaknesses of their cases and may lead to settlement.

Neutral Evaluation

In neutral evaluation, a neutral third party, often an experienced attorney or retired judge, assesses the merits of the case based on the evidence presented. This evaluation is non-binding but can provide valuable insights into the strengths and weaknesses of each side’s position.


Mini-trials are typically conducted in a more informal setting, where each party presents a condensed version of their case to a panel composed of high-level executives or decision-makers from each side. The panel then engages in settlement discussions based on the presentations and their own assessment of the case.

Collaborative Law

Collaborative law involves a cooperative approach to negotiation, where both parties and their attorneys commit to resolving the case outside of court. If an agreement cannot be reached, the attorneys must withdraw from the case, and litigation may proceed.

Private Judging

Parties can agree to hire a private judge, often a retired judge, to hear their case and make legally binding decisions. This is similar to a traditional trial but occurs in a private setting.

Jurisdiction & Local Law

Remember that personal injury laws can vary from one jurisdiction to another, so it’s crucial to consult with an attorney who is knowledgeable about the specific laws in your area. An experienced attorney can guide you through the legal process, protect your rights, and help you make informed decisions about pursuing a personal injury lawsuit.

Contact an Illinois Accident Attorney Today

If you or a loved one has been injured in a vehicle-related accident due to the negligence of another person, our experienced attorneys can help you receive compensation for the damages you have suffered. There is no fee unless we obtain compensation for you.

Get a free case review by calling 866-699-3339 ‌or‌ ‌complete‌ ‌the‌‌ ‌case‌ ‌request‌ ‌form‌.‌

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