The short answer is yes, but the more relevant question is should you? This article will explain the basics of the legal process to allow you to evaluate if you can/should proceed with personal injury litigation yourself. Please note, this is just an overview and there is additional nuance outside the scope of this post.
The Personal Injury Process-Pre-Litigation
A personal injury case begins when the accident victim (the Plaintiff in a lawsuit) gets hurt and goes until the case is dismissed, settled or a jury verdict is entered. A lay person may not understand the intricacies of what takes place between those two events.
The first thing to know is the relevant statute of limitations. There are nuances but for the vast majority of accident cases, the statute of limitations is two years. This means that you have two years from the date of the accident to bring a lawsuit. There may be additional things you need to do within those two years (like putting a government entity on notice for instance) but the lawsuit itself must be filed by the relevant statutory deadline.
Before you file a lawsuit, you will need to gather evidence. Relevant evidence may include the police report from the accident, interviews with independent witnesses, property damage estimates, pictures from the accident, video from the accident and the at fault party’s insurance information. This list is not exhaustive but illustrates some of the material you will need to prove your case.
You will also need to determine relevant parties to the case. It probably goes without saying that the person who caused the accident must be named as a defendant, but there may be additional defendants to name. For instance, in a car accident case if the driver was working for a company that company should also be named. If an accident occurred at a place of business, the employee that caused the accident and the company should be named. If an entity is involved, you will have to find out the proper name of the company, which is not always the name on the front of the building. There may be additional considerations not listed in this post.
An injured person also needs to put both the at fault party’s insurance company on notice of their potential claims, but also their own insurance. If the at fault party does not have insurance or does not have enough insurance the injured party may be able to pursue their own insurance with an Uninsured Motorist/Underinsured Motorist claim. The injured party’s insurance must be put on notice of the potential claim within three years of the accident.
After all this, you can start negotiating with the insurance company to resolve the case. Ideally, you will not have to go to court, but if you do you will need to know how to navigate court procedures and rules.
The Personal Injury Process-Litigation
Litigation is what most people think of when they think of attorneys. However, real life litigation is not like what you see on TV. Litigation has several technical requirements you must comply with.
The first step in personal injury litigation is drafting and “serving” the complaint. The complaint is the initial document filed with the court that ultimately just tells the other side the basics of what you are going to try and prove at trial or arbitration. After drafting the complaint, you need to “serve” it on the defendant. This usually requires hiring a “process server” to find the defendant and hand them the documents. After you serve the complaint, the Defendant has 20 days to file an answer to the complaint. After that, you get into what is called “discovery.”
There are two general forms of discovery: written discovery and depositions. Written discovery is exactly what it sounds like. You and the other side send written questions or requests to each other to respond to. Written discovery principally consists of the Disclosure Statement, Requests for Admission, Interrogatories and Requests for Production.
The Disclosure Statement is governed by Arizona Rule of Civil Procedure 26.1. Rule 26.1 lays out what all needs to be in the Disclosure Statement, but basically it is the document that explains your entire theory of the case. What happened at the accident, what your damages are, who will testify at trial, what documents you have that are relevant, etc. Often, as the injured party you will not need much more than your Disclosure Statement for written discovery. You need to update your Disclosure Statement as more information becomes available for your case.
Requests for Admission simply requests the other side admit or deny a fact related to the case. They are meant to reduce the need to prove facts that are not in dispute. Interrogatories are written questions that require written responses. Requests for production request the other side produce documents that are relevant to the case. You have the ability to send any of these discovery requests to the other side, and you are required to respond to the other side if they send you this discovery.
Depositions are the opportunity to ask questions in person (or via Zoom or Teams) to a witness or party to the case. In a deposition, the other side’s lawyer asks you questions, and a court reporter writes down everything that is said. You can also ask the other party questions if you schedule a deposition.
After discovery concludes you go to a trial or arbitration. At the trial or arbitration, you present your evidence, and the defense gets to present their evidence. There are several rules about how to present evidence and what evidence can be presented that is outside the scope of this blog post. After evidence is presented the judge, jury or arbitrator decides who was at fault and what, if anything, you will receive.
Something outside the scope of this blog worth noting is court deadlines. Courts set specific deadlines for litigation to keep cases moving along. It is critical that you meet all court deadlines and know the rules, so you do not miss anything.
What a Personal Injury Attorney Can Do For You
A personal injury attorney can help you with all the above requirements. The attorney knows the legal system and if you hire an experienced attorney, they have already done dozens if not hundreds of similar cases. A personal injury attorney also likely has a team working with them that can help with essentially all aspects of litigation. If you hire an attorney, you will likely have a great deal of contact with her or his teammates but you can always ask to speak to the attorney themselves.
Typically, an attorney charges a flat fee for her or his service which varies but is often between a quarter to a third of the settlement. Again, every attorney is different but that is the general range. Most personal injury attorneys do not charge a fee if you do not recover, and they only get paid at the end after you have approved the settlement.
Conclusion
Anyone can represent themselves in a personal injury case. Some of the relevant questions are 1) Can you manage the legal process? 2) Do you know how to gather all the relevant evidence? 3) Are you comfortable in a deposition and presenting to a judge or jury at trial? 4) Do you think an attorney will provide value and is the attorney you hire worth their fee? After you answer these questions, you will be able to determine whether you can go it alone or if hiring an attorney is right for you.
Fowler St. Clair handles personal injury cases and is here to help. If you have any questions about the legal process or think you may have a case, you can reach out and one of our trusted team members can discuss your potential personal injury case free of charge.