About 95% of accident claims end up being settled before trial. That can create the impression that a lawsuit is an unlikely outcome, but that number masks a few critical points about threatening litigation. If you're wondering whether you may need to have an auto accident attorney put together a suit, consider these three potential issues.
Is It Too Soon?
The claims process is designed to give defendants an honest chance to assess cases and respond. This usually means sending a demand letter to the insurance carrier for part you believe to be at fault. In most U.S. states, the insurance company has up to 45 days to respond to a demand letter. They have the option to accept the claim without contest, reject it or negotiate. Most states require a second demand letter to be sent if there is no response, but you have the right to consider a lawsuit once you've given them the full 45 days.
How Much Progress Is Being Made?
Negotiations take time, and the claims adjuster assigned to the case may have valid reasons for pursuing a lower amount than you've demanded. One issue worth considering is whether you and the insurance company are starting to converge toward a reasonable number. Your auto accident attorney has a legal duty to inform you of any offers the company makes, and they also are obligated to tell you whether they think the deal is worth taking.
If progress proves to be slow and your lawyer isn't impressed with the last offer, it might be time to goose the case by putting a lawsuit in motion. Even though the majority of cases will never see the inside of a courtroom, that doesn't mean some of those claimants didn't threaten a lawsuit to motivate the insurance company.
Are There Discoverable Materials?
Until legal action is initiated, the defendant isn't required to turn over discovery materials. These are items of evidence that might bolster your case. Suppose you suspect a driver was on their cellphone at the time of the accident. You can't subpoena the records for the phone until a lawsuit is moving and the court has ordered discovery.
Moving ahead with a suit opens up discovery. If there's something the responsible party doesn't want to come out, they're welcome to make a settlement offer you'll actually like. Getting a settlement is an option up until the matter has been sent to jury deliberations.
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