If you’ve been injured, these are the basics about filing a California personal injury lawsuit
For most of us, the idea of filing a personal injury lawsuit can be almost as scary as the injury, itself. The legal system is intimidating for most people, even when we know that it's designed to be fair and help us recover the damages we deserve after being hurt.
If you've been injured, you're probably wondering what your options are and how to proceed in order to cover your expenses. These answers to FAQs about personal injury lawsuits in California can guide you toward recovery.
Q: What is a personal injury lawsuit?
A personal injury lawsuit can be filed when you've been hurt by a person or entity (a business, organization, or government agency) because of a negligent or intentionally wrongful act.
These are just some examples of personal injuries:
In other words, an act—that's not a crime—that causes you physical, emotional, or financial injury can be a “tort” (or civil cause of action).
Q: What's the deadline for filing a personal injury claim in California?
Each state has its own statutes of limitations, which are the filing deadlines for lawsuits. You must file a lawsuit within a specific period of time, or you lose your right to make a claim.
In California, the statute of limitations depends on the type of personal injury lawsuit. For most personal injuries, the statute of limitations is 2 years from the date the injury happened, but there are some exceptions.
Q: Shouldn't my insurance company cover my expenses after an accident?
Yes and no.
If you were in a car accident that was the other driver's fault, your insurance company should work with their insurance company to have your expenses covered.
But in reality, there's only so much your insurance company can do. If the other insurance company refuses to acknowledge the other driver's liability, or if the insurers can't come to an agreement on how much your damages are worth, there's nothing more your insurance company can do.
Your own insurance company might also make you a lowball offer to settle your claim. The less the company pays out in settlements, the more profit it makes. Your insurance company isn't motivated to get you the most money; it's motivated is to settle the claim and spend the least money possible.
If the amount you're being offered by your insurance company doesn't cover your expenses, a personal injury lawyer can help you take the next steps to pursue additional damages or file a lawsuit.
Q: What can I recover in a California personal injury case?
In a personal injury case, the only remedy is money.
If you file a personal injury lawsuit, part of the claim will be a request for a certain amount of “damages,” which is the money that the defendant is obligated to pay you if you win. Your lawyer can help determine what your demand should be based on how much you've lost.
The basis for personal injury law is to make the plaintiff “whole”. In other words, it's intended to restore you to the position you would be in if the accident hadn't happened. The way the court does this is by awarding money that will cover any expenses associated with the injury.
Damages are either economic, non-economic, or punitive.
Economic damages include:
- Medical treatment
- Repair or replacement of property
- Lost wages and future earnings
- Loss of earning capacity
Punitive damages are intended to punish a defendant for extremely outrageous acts. These are uncommon because the civil court system isn't geared toward punishments like a criminal court would be. Usually, a punitive damage award is against a company that created the harm. In addition to punishment, it's also intended to serve as a deterrent to that company and others so that they won't act that way in the future.
In order to recover punitive damages in California, the plaintiff must prove that the defendant's actions demonstrated malice, oppression, or fraud.
Read more about the difference between civil and criminal cases.
Q: Are there damage caps in California personal injury lawsuits?
Some states have damage caps, which means there's a maximum amount a plaintiff can recover for a personal injury.
In California, you can always recover your economic damages to the fullest extent. The only damage cap in state statute is on non-economic damages (for instance, pain and suffering) specifically for medical malpractice cases. If you're a plaintiff in a medical malpractice case in California, you can recover up to $250,000 in non-economic damages.
Q: How do I prove fault in a California personal injury lawsuit?
In every personal injury lawsuit, the plaintiff faces the burden of proof to demonstrate that these elements exist:
Everyone owes a duty of care to the people around them, whether they're fellow drivers, bicyclists, pedestrians, retail store patrons, a doctor/patient relationship, or any other situation that relates one person to another. That means you have a duty to act or not act in a certain way in order to avoid causing harm to other people.
If a defendant breaches that duty and it causes the plaintiff's injury in a way that could've been reasonably foreseeable, the defendant could be considered negligent.
Comparative fault in California
California follows a comparative fault system. That means that if the plaintiff had any portion of fault in the injury, the damage award would be reduced according to the percentage of their fault.
In other words, if the court finds that the injury was 80% the defendant's fault and 20% the plaintiff's fault, the plaintiff would receive an award that's 20% less than what the damages would've been.
Q: Is a personal injury trial going to get me more money than a settlement?
Sometimes a settlement will yield a higher damage award than a trial verdict and there will be fewer expenses. Most personal injury lawyers will try to settle a lawsuit out of court.
A settlement benefits you in a number of ways, and there are several reasons why it can be worth avoiding a trial:
- A trial is time-consuming. Getting to trial could take months or years. And once the trial happens, you might need to call witnesses (or testify yourself), which takes everyone's time and costs money if you need to bring witnesses from out of town. You also might need to take an extended period of time off from work, and a trial could take you away from your other life activities.A trial can also involve an appeals process. If the defendant appeals the verdict, it means more years and additional expense — and you might still be paying medical bills and other costs related to the injury while you wait for the payout.
- A trial is expensive. Most retainer contracts for a personal injury lawyer include a provision that their hourly fee increases by a certain percentage if the case goes to trial. This is because a trial takes significantly more time and work, which means they're limiting their availability to handle other cases.You might also need to pay additional fees to expert witnesses. Your lawyer will likely have already retained experts for depositions or pleadings before a settlement is reached, but it will cost more money to have them testify at trial.
- You might need to testify. If the defense seeks to prove that you had any liability for the accident (and it's likely that a defendant would look for that to be the situation), you'll be asked tough questions on cross-examination by the defendant's lawyers. Questions can include details about your physical and mental condition both before and after the accident. Testifying before a jury can be stressful, emotional, and difficult.
- A settlement can be sealed. A trial is open to the public and the transcripts of witness testimony (including experts) become part of the public record. A settlement agreement can include a provision that the terms are sealed, which means the details remain private.
- A jury is unpredictable. You might think you have an airtight case and the defendant's liability is clear as day. Your lawyer might even agree. But a jury is unpredictable. You never know how a jury will decide a case, and even the best lawyers lose cases sometimes.In some circumstances, a judge can order you to pay the defendant's attorney fees if you lose at trial. That means you owe the defendant money, rather than recovering any money yourself.
Q: How much are attorney fees in a personal injury lawsuit?
Many personal injury lawyers charge a contingency fee. This means that if you receive a settlement or win a damage award, you'd pay a percentage of that amount to your lawyer. There's no standard percentage that lawyers earn, but it's usually around 33% of what you recover. If you lose the case or recover nothing, you won't have to pay attorney fees.
There can be up-front fees involved, too. If your lawyer needs to hire investigators, expert witnesses, or the case requires travel, you might be responsible for paying those costs before you recover any money.
Be sure to read the fine print in any retainer agreement you sign with a lawyer. There might be a little room for negotiation, depending on the size of your case, the defendant, and the likelihood of success. Don't be afraid to ask a prospective lawyer any questions you have before you sign the retainer.
Q: Can I file a lawsuit without hiring a lawyer?
You might be able to file a lawsuit without hiring a lawyer if the case is eligible for small claims court.
You can file any claim in small claims court that you could otherwise, as long as the amount of your demand is less than $10,000. In California, a plaintiff may not file a claim that's worth more than $2,500 more than twice a year. A public entity or business has a limit of $5,000.
If you expect to recover less than $10,000, small claims court might be a good choice that saves you time and money, and allows you to recover your losses quickly. Most people represent themselves in small claims court without attorneys present.
If your injury is work-related, you might be able to handle it on your own through the workers' compensation system.
Q: How do I choose a personal injury lawyer?
Selecting a lawyer is very personal, like choosing your doctor or therapist. You need to feel comfortable sharing private information and be confident that your lawyer will be your strongest ally and advocate for what you need to recover.
You can shop around for the lowest fees. That's one strategy, but perhaps not the best. Like anything else, sometimes you get what you pay for. That doesn't mean you should choose the most expensive lawyer in your community, but usually there's a middle ground of lawyers who charge competitive rates and are neither the most nor least expensive.
You want to find a lawyer who is experienced in dealing with your specific type of lawsuit. For instance, there are personal injury lawyers who specialize in insurance bad faith, medical malpractice, motorcycle accidents, and so on. If it's going to be a complicated case, it's important to ask the lawyer if they've litigated that kind of lawsuit before, and how familiar they are with the laws and regulations around the particular subject matter.
Here's a list of resources that can help you choose a California personal injury lawyer:
- How to choose a personal injury lawyer: Questions to ask
- 3 tips for finding a qualified attorney for your personal injury case
- How to talk to a lawyer: Hiring an attorney after an accident
- Preparing to meet with a personal injury attorney
- List of California personal injury lawyers