If you do it by yourself, which sometimes makes sense if it’s a minor injury, you will typically contact the insurance company for the person at fault or they will contact you, and then they will take a recorded statement from you over the phone as to your version of the facts and they will send you some forms to fill out.
Sometimes it makes sense to do it this way if you want to resolve it quickly if you don’t want any hassle it can be a very good way to go.
On the other hand, if you have a major injury, it’s usually not the best idea to deal directly with the insurance company because what they’re going to require of you are things that could be very hurtful to your case: first of all is giving the recorded statement.
You have no obligation to do that, and if you have an attorney – most attorneys including myself will not allow them to have a recorded statement. Then they’re going to ask you to sign forms, and many of those forms give away rights that you don’t want to give away.
This is how to File a Personal Injury Lawsuit or Wrongful Death claim in California:
Step 1: Gather as Much Information As You Can at the Scene of the Injury
Whether your personal injury occurred in an auto accident, a bicycle accident, a pedestrian accident, or even a slip and fall at a local restaurant, it is important to document the scene as best as you can. If your injuries are severe, it may be impossible to identify witnesses or to take photographs. However, if you are able to gather evidence at the scene, the information you obtain can help immensely when it comes time to deal with the insurance companies involved or, if necessary, when you take your case to trial.
What information should you gather at the scene of your injury?
- Photographs: if you are able to use your smartphone to take photos, it is important to document the scene where the accident happened. Take photos from multiple different angles. Be sure to take photos from different angles, as well. Your personal injury lawyer can work with an accident reconstruction expert to reconstruct the scene of the accident in order to prove the other party’s fault, and your photos can help immensely.
- Witness information: if witnesses were present at the scene of the accident, you should obtain contact information, including names, phone numbers, email addresses, and physical addresses. Your San Jose personal injury attorney can contact witnesses who may be able to provide support for your version of the events.
- Personal recollections: use either physical paper and pen, or a note-taking app on your smartphone, to your record your personal recollections of the accident as soon as you are able to do so. What is the last thing you remember before the accident happened? What do you see that stands out at the scene of the crash? Anything you jot down may become useful for your lawyer when negotiating with insurance companies or at trial.
You should also see a healthcare provider as soon as possible, even if you think you sustained only minor injuries. In a motor vehicle accident, for instance, it can take hours and sometimes days before signs and symptoms of an injury appear. You will need medical records to prove that your injuries resulted from the accident.
Step 2: Make Sure You Have Legal Standing
To sue someone in the state of California you have to be sure you have the right to sue either a business or a person. According to the California courts website “To file a lawsuit in court, you have to be someone directly affected by the legal dispute you are suing about. In legal terms, this is called having “standing” to file the lawsuit.” (Source)
Step 3: Figure Out Who To Sue
Knowing who to sue is an important step in a California lawsuit. For personal injury lawsuits, you must be able to prove the party was negligent in their actions, which resulted in an injury. You can also identify the assets the person might have during this stage. If you don’t have any way of knowing who was responsible you should seek legal counsel.
Step 4: Ensure You Are Within The Statute of Limitations For A Lawsuit
You do not have as long as you want to file a personal injury lawsuit. To be sure, California law (California Code of Civil Procedure Section 3351) includes a statute of limitations for all personal injury claims. What is a statute of limitations? It is a law that specifies how much time a plaintiff has to file a lawsuit. In California, you will typically have two years from the date of the accident to file your claim. The clock starts “ticking,” so to speak, from the date of the accident. This means that, as soon as you get hurt, you have two years from that point to initiate your personal injury lawsuit.
If you do not file your claim within two years, you can lose your right to seek financial compensation. The law is also a bit different if you are filing a personal injury lawsuit against the government. In these cases, the statute of limitations is much shorter. As such, if you are thinking about filing a personal injury claim in California, it is important to discuss your options with a Fresno personal injury attorney as soon as possible.
Step 5: Ask Yourself If You Were Partially Responsible
You might be asking yourself: can I still initiate a personal injury claim even if I am partially to blame for the accident or for the severity of my injuries? And is it worth filing a lawsuit if the defendant will argue that I am partially at fault? California law follows what is known as a “pure comparative fault” system. This means that an injured plaintiff can recover damages even if she is 99 percent responsible for the accident or for the severity of her injuries, as long as the defendant is at least partially responsible.
The plaintiff’s damage award will be reduced, however, by the percentage by which the jury decides she was responsible. In other words, if you file a personal injury lawsuit and the jury says that you are 20 percent to blame, your damage award will be reduced by 20 percent.
Here is the thing you should remember: filing a personal injury lawsuit in California is extremely important even if you may be partially at fault. You can still recover damages for your injuries.
Step 6: Contact a Northern California Personal Injury Law Professional
What I recommend is you called a skilled plaintiff’s personal injury attorney and just get a free consultation – almost all of us give free consultations, and that will help you think through whether or not you want to represent yourself. You’ve lost nothing and we can usually give you a better sense as to whether your case is one you want to do on your own or you want to hire a lawyer to do it.