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When to File a Personal Injury Lawsuit

Written by Berkowitz

Personal Injury Claim Form

The short answer to this question is simple: ASAP unless you are able to secure a generous private settlement from the defendant almost immediately. Evidence deteriorates and witness’s memories fade. Every day that you delay filing your personal injury lawsuit degrades your chances of victory and may result in an anemic “victory” in which you collect far less compensation than you are entitled to.

To be more specific, the earliest date that you should file your lawsuit is the day that you have thoroughly prepared a solid case (with plenty of substantive admissible evidence and a well-drafted Complaint). At the latest, you must beat the statute of limitations deadline for filing a personal injury lawsuit.

Step One: Determine the Statute of Limitations Deadline

The statute of limitations is a law that limits the amount of time, after an injury occurs, during which you are permitted to file a personal injury lawsuit. If you miss the deadline and file a Complaint anyway, the defendant will file a motion to dismiss the case based on the statute of limitations and the court will dismiss your case.

Suppose your case is dismissed and you later contact the defendant demanding a private settlement. Is it still possible for you to negotiate a settlement? Well, it’s possible, but it is extremely unlikely. After all, why should the defendant settle with you when he knows that you lack the ability to enforce your claim in court? All he has to do is say “no,” because without the ability to file a lawsuit, you have no bargaining leverage.

The General Rule

The general personal injury statute of limitations in Connecticut is two years after the date that the accident occurs. If the victim dies from the accident, his probate estate (as represented by a court-appointed personal representative) has two years from the date of death to file a wrongful death lawsuit.

  • Suppose, for example, that the victim was injured in a motorcycle accident on April 12, 2018. In that situation, he has until April 11, 2020 to file a personal injury lawsuit.
  • Suppose, however, that the victim dies from his injuries on June 6, 2018. At the point, it is the personal representative of the probate estate who must file a wrongful death lawsuit by June 5, 2020.

“Filing the Complaint” means that you must have filed a formal legal Complaint (with certain formatting requirements) to the Court Clerk along with Form JD-CV-1 (the Summons) and have the Court Clerk sign the Summons. Although a filing fee is required, you can seek to have it waived.

The Exceptions

Following are some limited exceptions to the two-year filing deadline:

  • The Discovery Rule: If you did not discover your personal injury claim until sometime after the injury, and your failure to discover it was reasonable, the two-year period doesn’t start running until after you discover your claim. The maximum extension, however, is one additional year.
    Suppose, for example, that you suffer a head injury that doesn’t produce symptoms until six weeks later when you begin experiencing severe pain. If you sought medical treatment immediately after the accident and your injury was not discovered, your statute of limitations deadline can be extended for six weeks.
  • The jurisdictional exception: If the defendant leaves Connecticut after a personal injury accident but before the lawsuit is filed, the statute of limitations clock will not begin running until the defendant returns. Even in this case, Connecticut imposes a hard deadline of seven years after the date of the accident.
  • The automatic 90-day extension in medical malpractice cases: Connecticut medical malpractice law requires you to prove that a medical malpractice claim is supported by a reasonable basis before a lawsuit can be commenced. For this reason, if you are planning to file a medical malpractice lawsuit and the statute of limitations deadline is looming, you can ask the court to grant you an automatic 90-day extension to give you the opportunity to investigate whether your claim is valid.

Step Two: Prepare Your Case

Once you determine that the statute of limitations deadline has not expired on your claim, resist the temptation to rush into the Court Clerk’s office with a hastily-prepared complaint (unless the deadline is looming and you have no choice). As the ancient Chinese military strategist, Sun Tzu, observed, “Every battle is won or lost before it is ever fought.” Nowhere does this apply more aptly than in the field of personal injury law.

Keep in mind that “trial by ambush” is virtually impossible under the Connecticut (and federal) Rules of Civil Procedure. The discovery process virtually assures that each party will know exactly what evidence the other side will present before the trial begins. Since there will be few surprises, preparation is key. Don’t stumble into a lawsuit unprepared.

Select an experienced personal injury attorney.

Realistically, your choice of attorney is likely to be the most important decision you make during your personal injury case. Some things to note:

  • You can afford top-tier legal representation even if you are broke. At Berkowitz Hanna, we charge nothing for a consultation, nothing in upfront fees, and nothing at all, ever, unless your case is won. Since our fees are calculated as a percentage of your recovery, we don’t win unless you do too.
  • If you are suing a business or an insurance company, they are certainly going to be represented by their own lawyers. Going up against them alone is not a good idea.
  • Your lawyer should be familiar with the rules of evidence and civil procedure as well as the requirements for drafting a formal Complaint.

Keep an accurate record of events.

Write down everything you can remember about your accident, in time sequential order, beginning with the circumstances that led up to the accident as best as you can remember it. You should also keep track of all your expenses, all of your missed opportunities (such as lost work time), and the degree of pain and suffering that you experience each day.

Do not post anything on your social network accounts, even if it is unrelated to the accident, because this can be used against you. An uploaded photo of you socializing with friends, for example, could be used by the defendant to minimize the seriousness of your injuries.

Select the appropriate defendant.

Your case could be complicated if the defendant is an individual who lacks sufficient financial resources to pay your claim. A skilled personal injury lawyer can help you find an insurance company who may be responsible or a “deep pockets” business that might be jointly responsible for the accident. Some examples of wise choices of defendants include:

  • The manufacturer or even the retailer of a defective product that injured you
  • The employer of a delivery driver who injured you in an on-duty car accident
  • The city government if your accident was caused by a malfunctioning traffic light
  • The owner of a dog that attacked you (since you, obviously, cannot sue the dog, and since homeowners’ and renters’ insurance typically covers dog bite liability)

Gather evidence.

Work closely with your lawyer to gather evidence. Evidence is useless unless it is admissible in court, and the Connecticut Code of Evidence is complex, arcane, and in many cases, counterintuitive. You might not realize, for example, that you normally cannot use the defendant’s subsequent repair of a dangerous condition that injured you as evidence that the condition was dangerous in the first place (because this would discourage the repair of dangerous conditions).

You will also need to work with your lawyer to contact witnesses and prepare them for trial and to obtain expert witness testimony, if you need it. Expert witness testimony is usually required in a medical malpractice lawsuit, for example.

Notify the defendant(s) and attempt to settle the case out of court.

Although the defendant is unlikely to be unwilling to settle with you on reasonable terms at this early stage, it is still worth a try.

Carefully draft your Complaint and file it with the Court Clerk.

A Complaint is a legal document with many formal requirements, and every word matters. The logical reasoning must be airtight, and assertions must be based on admissible evidence to the extent possible. Nowhere is a lawyer more important than in the drafting of a Complaint.

After Your Complaint Is Filed

Most personal injury cases are settled out of court – but not necessarily before the initial Complaint is filed. Indeed, filing a Complaint is like lighting up a neon sign that says, “We mean business!” A well-pleaded Complaint with solid evidence backing it up could very easily motivate the defendant to issue his first serious settlement offer. The name of a reputable personal injury lawyer at the top of your Complaint can also boost your bargaining position.

You can be virtually certain that the court will pressure both parties to settle, because private settlement ends the case and that helps thin out overcrowded dockets. Even after trial begins, you can still reach a settlement. In fact, you can reach a settlement any time before the final judgment is announced and the deadline for appeal has passed.

It’s Not Just Whether You Win or Lose – It’s How Much You Walk Away With

When it comes to filing a personal injury lawsuit, try to remember that “winning” doesn’t necessarily mean justice. If your claim is worth $100,000 and you “win” $15,000, you haven’t really won. And personal injury victims represented by skilled lawyers win, on average, many times the amount won by victims who represent themselves or hire “my cousin Vinnie” to represent them.

Your claim could be worth more than you think it is, and you don’t need to be gambling with your chances of enforcing it. Contact Berkowitz Hanna today to schedule a no-obligation case evaluation. Call now or contact us online to get started.