Get 5 steps closer to legal recovery in your personal injury case
You were injured.
The first priority is to get medical treatment underway. But medical treatment means the bills will soon start rolling in. You need to pay your medical bills, but how? Depending on the nature of the injury, perhaps you’re able to get insurance coverage, but it’s often not enough.
If your injuries cost more than your insurance covers, your next move might be to file a lawsuit against the person or entity that caused your injury.
The purpose of the California civil court system is to make a plaintiff (the injured person) “whole,” or to restore you to the financial situation you were in before the accident or injury.
In California, you’re most likely to file a personal injury claim in one of these 3 venues:
- Division of Workers’ Compensation (or Workers’ Compensation Appeals Board if you’ve already been denied) for a work-related injury
- Small claims court for a claim in an amount less than $10,000
- California civil court (Superior Court) for an amount greater than $10,000
The California workers’ compensation system is designed to provide insurance coverage for work-related injuries, but also to protect your employer from lawsuits.
In most situations, your only remedy for a work-related injury is to make a claim to the California Division of Workers’ Compensation. There are a few limited instances when a work-related injury could also lead to a personal injury lawsuit.
If your injury was from a defective product (a defective safety harness or scaffold, for example) or was the result of negligence of a third party (someone who’s not your employer), you might be eligible to file a lawsuit on that basis.
A workers’ compensation lawyer can advise you of your best options for work-related injury recovery.
Filing a claim in small claims court
If your demand is for less than $10,000, small claims court is the appropriate way to begin a lawsuit.
Your local small claims court will have nominal filing fees and is for people who want to resolve claims without a lawyer. To file in small claims court, check with your local municipality for its rules, fees, and procedures.
The key to small claims court is that you’re presenting your own evidence. Small claims will only cover compensatory damages (expenses associated with the injury). You’ll need to show copies of a contract (if there’s one at issue), receipts, cancelled checks, bills, photographs, or whatever other paper trail you have that proves your case.
In most courts, if the defendant doesn’t appear at the designated time, they forfeit the case and you’ll automatically have a judgment entered in your favor.
How to file a personal injury lawsuit in California
An injury claim is handled in the California civil court system if it’s not work-related and if the damages total more than $10,000.
Step 1: Establish legal standing
In order to file a lawsuit in California, you must have legal standing. Legal standing is the right to file a lawsuit. To have legal standing, you must:
- Be directly connected to the subject of the lawsuit. In other words, you must have been directly harmed by the defendant, either through action or inaction.
- Be an actual legal entity. That means you’re either a person or entity that has legal status (a corporation, a government agency, non-profit, organization, etc.).
- Have legal capacity. Children under age 18 and adults who are mentally incompetent because of illness, age, or infirmity don’t have legal capacity. Someone who has legal capacity can file a lawsuit as a representative on behalf of a person who doesn’t.
There can be more than one plaintiff or more than one defendant in a lawsuit, but the court must be convinced that each of the plaintiffs has the same interest in the subject matter of the lawsuit.
Step 2: Hire a lawyer
This could be the most important step in filing a lawsuit. Choosing a lawyer is important and personal. Like any personal or professional relationship, it’s important to find one who “clicks” with you. You’ll need to be comfortable sharing private information with your lawyer, and you need to trust that they’ll be your strongest ally and advocate throughout your legal process.
Step 3: Determine the venue for your lawsuit
Venue is the where for your filing.
A lawsuit must be filed in the county where:
- The majority of witnesses are or where the injury happened
- The defendant lives or has its principal place of business
- You live or have your principal place of business
There might be more than one venue that is appropriate for your case, and your lawyer can advise as to which would be best.
Step 4: File your claim within the statute of limitations
A statute of limitations is the time period you have in which to file a claim. If you miss the deadline, you lose your right to file a lawsuit.
Each state has statutes of limitations that vary based on the type of injury.
Step 5: File your complaint
Often, your lawyer will try to negotiate a settlement with the prospective defendant before filing a lawsuit. If the 2 sides can come to an agreement and keep the matter out of court, it benefits everyone involved.
If the parties can’t reach an agreement, your lawyer will file a summons and complaint with the court.
- Summons: Notifies the defendant that they’re being sued.
- Complaint: Sets forth the circumstances of how you were injured, the defendant’s liability, and how much you’re demanding in damages.
Your job as a plaintiff is to provide the evidence you’ve obtained to your lawyer. Your lawyer’s job is to evaluate the evidence, gather additional information from experts and investigators, and negotiate with the defendant to try to reach a settlement.
Once the complaint is filed, that’s when things really begin to heat up.
If your lawyer and the other parties can’t reach settlement and head toward trial, there will be many months (or years) of trial preparation, including finding expert witnesses, exploring the possibility of new evidence, and many motions back and forth between the parties.
Once that’s underway, you might have nothing to do but wait for your lawyer’s next instruction. You might have to appear for depositions (questioning by the other party’s lawyers under oath), or you could be asked for additional evidence, or to submit to additional medical exams. It all depends on the nature of the case and the arguments the lawyers intend to make.
Your lawyer will guide you through the legal process until your case reaches a resolution.
- What’s the difference between injury settlement and injury judgment?
- How Long Will My Injury Claim Take?
- Out of Court Settlement Agreements for Personal Injury Cases
- Mediation, Arbitration, or Going to Court: Which is Best?
See our guide Choosing a personal injury attorney.