By Karen Piso Nadeau, Esquire

 The short answer to this question is no.  Just because you decide to pursue a case against the responsible party does NOT mean you are going to court.  The fact you retain a personal injury lawyer to represent you does NOT trigger a lawsuit being filed in a Massachusetts court.  Many victims injured in accidents ask us this very question.  Hiring a lawyer is often synonymous with court proceedings because that is what we see on television. However, in the personal injury world, many accident cases are successfully resolved providing full compensation to the victims without any court action at all.  Often, this is in the victim’s best interest.  Are there times when court action is needed or recommended by a personal injury attorney?  Yes, there are accident cases that need to be filed in court against the responsible party to get the compensation a victim and his family deserve.

This blog will explore this issue of what it means to pursue a personal injury case as well as the special considerations in deciding to go to court as an injured party and answer some of the questions asked by our clients every day.  Television and media outlets have certainly influenced how we think about a personal injury case, what it means to be a victim of an accident, and the need to litigate a case in court to obtain the compensation you deserve as a victim.  Going to court and filing a lawsuit are sometimes viewed as being tough and aggressive and are often misinterpreted as the only way or always the best way to pursue justice.

Our initial calls with clients vary from some victims demanding “take them to court” to the other extreme of clients feeling intimidated by the court process, often freezing deserving victims from pursuing the money they need and deserve.  Every accident case requires a thoughtful analysis on what is best for that particular client and his or her family.  Only after we talk to our clients and hear their stories, are we in a position to determine the best course of action on their cases.  Most importantly, the initial plan needs to be re-evaluated throughout the life cycle of our client’s case and readjusted based on new developments.

Throw Everything into Suit Mentality of the 90’s Is Long Gone

Back in the “old days”- early and mid 1990’s- my experience on both sides of the “v” (representing the plaintiff victims and the insurance companies and their insureds /defendant negligent parties) was that everything was thrown into suit with little thought or analysis of the merits of the case.  The two most important issues of a personal injury case:

1. How did the accident happen? and
2. What type of injuries did the client suffer?

were given little to no consideration.  As a young lawyer, the climate was to file suit and “see what sticks”.  Back then, the costs associated with filing and litigating a case in court were much cheaper and cases moved a lot quicker (for the most part) through the court system.  I say “for the most part” because I get chills remembering my cases at Boston Municipal Court where there was standing room only for attorneys as they called the long trial list.  Most of us were sent home with a new trial date six months or more later or you could be placed on the “special assignment list” that was more than a year away for your client’s trial but there was a better chance the trial would actually go forward as scheduled.  It was not unusual to be called to trial several times and prepare several times for a trial before you actually had your day in court. These were the good old days.  Many of us have fond memories of BMC back then interacting with so many colleagues in person and bumping into friends you have not seen in a while and catching up.  The pandemic took a lot of that away from us.

Back in the day, the insurance companies were more inclined to offer something on the case versus litigate, prompting the “throw it into suit” mentality for many plaintiff firms.  It is up for debate whether this “throw everything into suit” mentality really worked for the victims back then.  What I can tell you is that there is no debate today about this.  You do not throw everything into a lawsuit.  Many clients can and will obtain the compensation they deserve to get on with their lives without being named a plaintiff in a court case. In fact, there are many cases that filing a case in court would be against the best interest of a client.

An important part of our job as personal injury attorneys is helping our clients to understand what it means to be a victim pursuing fair compensation for the harm that someone else inflicted on them through no fault of their own.  Addressing some of the preconceived notions about a personal injury case and educating our clients about the process has not only empowered them during a trying time but also places our clients at ease knowing they got years of experience behind them and lawyers that truly want what is best for them.  Sometimes resolving their case without any court involvement is best.  Other times, court action is needed to get our clients the compensation they need and deserve.

 What Does It Mean to File a Personal Injury Case in a Massachusetts Court?

 The first thing that requires some explanation is the difference between filing and making a personal injury claim (often referred to in the personal injury field as a “bodily injury claim”) and filing a case in court.  They are two separate things.  Filing and making a claim for bodily injury is easiest to understand from an insurance coverage point of view.  Once you hire a personal injury lawyer, we place the insurance company for the responsible party on notice of your claim for bodily injury.  This means if you were rear-ended by a car whose driver is insured with Safety Insurance for example, we send a letter to Safety providing notice of your claim for personal injury against the other driver.  There is no court involvement at all. Almost always we are dealing with the responsible party’s insurance company.  We often present your case for personal injury to the insurance company and successfully resolve your case as a claim against the negligent party’s insurance company without any court action.  This means you are never named publicly as a plaintiff in a case filed in court.  There is no court involvement and no costs associated with court or litigating the case. You never go to court.

On the other hand, filing a case in court is beginning a legal proceeding in court whereby you are a named publicly as a plaintiff bringing causes of action or claims against named individuals or entities who caused you harm.  Typically, it is the victim and perhaps his or family members named as plaintiffs versus the negligent party or parties that caused the victim the harm named as defendants.  Going back to the rear end car accident scenario, it would be the victim that was rear-ended and injured bringing a lawsuit against the driver of the vehicle that rear-ended the victim’s vehicle.  If the owner of the vehicle is someone different, such as a business or other individual, they would be named as an additional defendant as well.  The filing of the Complaint and acceptance by the Clerk’s office formally starts the legal proceedings in court.

Once you file a lawsuit, you give up control of the process and flow of information. The Court will now be in charge setting dates and deadlines that both the plaintiff and defendant must follow.  There is paperwork that is required to be addressed as well as a discovery phase of the case where each side is given an opportunity to learn about the other party’s case.  This can be in the form of responding to written discovery requests like answering questions called interrogatories or responding to a request for production of documents.  Testimony is almost always given by the parties and perhaps witnesses in the form of a deposition whereby plaintiff, defendant and often witnesses give testimony under oath with a court reporter present who memorializes all the testimony.  There are often subpoenas issued whereby both sides of the case seek information and documents from various entities related to the case.

Once you decide to file a lawsuit, you lose some control as the court sets dates and deadlines and the defendant that you sued has certain rights to exercise in the case.  Without getting into the many moving parts to a case filed in court and litigation, the saying that “you are at the mercy of the court” takes on real meaning when you are a party to a case.

The need to file a lawsuit in court, the recommendation to sue the responsible parties and the decision to file suit are issues that require careful consideration and reflection.  An easy example of a case required to be filed in court would be to protect a victim’s rights to recover against the at fault parties.  Injury cases have statute of limitations. What this means is that the law requires an individual to file a lawsuit against the wrongdoer within a certain period of time or be forever barred from pursuing any personal injury case.  Going back again to our rear end accident scenario, in Massachusetts, a victim of a car accident has 3 years from the date of the accident to file a lawsuit against the responsible party.  If the victim fails to do this, then the victim loses all rights to recover compensation against the driver who caused the victim harm.

 Does a Victim Always Need to  File a Case in Court in Massachusetts in Order to Recover Compensation for Personal Injuries Suffered in an Accident?

The short answer to this question is no.  A victim injured in an accident does not always need to file a case in court in Massachusetts to successfully recover compensation for the personal injuries suffered in an accident.  Many accident cases are successfully resolved every day without any case filed in court and without any court involvement.

When a victim has been harmed due to the actions of someone else, the focus is on the victim’s injuries.  The type of injuries suffered, the medical treatment needed, the cost of medical bills, the lost wages and lost earnings suffered, the impact the accident had on both the victim, his or her spouse, the victim’s family, pain and suffering, ongoing need for treatment and any permanent injuries are all factors considered when determining what is fair compensation.  Presenting a victim’s story about the accident and how it damaged the victim in a thoughtful, comprehensive manner to the insurance company often leads to settlement discussions resulting in the injured party obtaining the compensation deserved.  Often, a favorable settlement is reached without the time and expense associated with court action.  Of course, there are times when a lawsuit is necessary for a victim to obtain the compensation he or she deserves.

At Nadeau Harkavy LLC, my law partner Leslie and I have over 25 years each of success stories where we obtain full compensation for our injured clients without any court involvement.  For these clients, their cases did not require any court action or lawsuit.  Each client’s case required our legal experience and analysis in determining what was best for that client and his or her family.  One typical example of the kinds of cases that do not necessitate any court involvement are car accident cases where our client did nothing wrong and was injured.

We recently resolved a case with an insurance company for an Uber driver who slammed into a concrete barrier injuring our client who was riding as a paying customer at the time.  She was injured, traumatized by the whole incident as she saw it play out in slow motion and was helpless, and received medical attention including emergency room care at a local hospital, her primary care doctor, and physical therapy.  She was thrilled to obtain a great result and receive her compensation without any court involvement.  In her case, it was in her best interest to avoid the delays of court as well as the costs. The insurance company offered her full compensation for the loss she suffered, and we successfully resolved the case.  In the event she was not offered a fair and full settlement offer, we were prepared to recommend court action. However, it made sense to engage in settlement discussions with the insurance company, and it worked out favorably for our very happy client.  This put more money in our client’s pocket as the costs of a lawsuit and litigation are typically thousands of dollars that come out of the victim’s money.

We also have recent settlements for clients who were injured:

-in a truck accident traveling back to college after break

-as a pedestrian walking a dog

-as a tenant who slipped and fell down icy stairs

-as a customer of a store who slipped and fell on a wet surface

-as a patron tripping and falling in a parking garage

-as a bicyclist struck by a vehicle,

and all of these cases were successfully resolved without any lawsuit or legal proceedings in court. In fact, some of these cases were settled for hundreds of thousands of dollars without court action including a recent 1 million dollar settlement for a deserving client without the need for a complaint filed in court.

The common threads are meticulous preparation, knowing the intimate details of the client’s story, and leaving no stone unturned in pursuing the full compensation the client and his or her family deserve using all our years of experience and resources.

Does a Victim of an Accident Sometimes Need to File a Case in Court to Obtain the Best Possible Outcome?

The short answer to this question is yes.  There are times a victim who is harmed in an accident needs to file his or her case in a Massachusetts court to obtain the money she or he deserves.  In almost all of these cases, there are facts and issues presented in a victim’s case that influence an insurance company to either deny the victim’s claim or not give the victim’s case the value that the injured party deserves. Sometimes the insurance company’s conclusions are valid, and other times, the insurance companies’ decisions are not fair.

Part of our job as personal injury lawyers is to evaluate the strengths and weaknesses of our clients’ cases and advise our clients on the best path for their particular case.  Every client is unique, and every case is different.  Part of the analysis in deciding to go to court involves a thoughtful evaluation on whether it is in the client’s best interest. This means considering whether a lawsuit and litigating the case in court will likely result in the injured victim obtaining the money to compensate him or her for the loss suffered due to another party’s wrongdoing.  There are many factors to consider in this analysis, and at Nadeau Harkavy LLC, we use our many years of experience on both sides of the case to educate our clients and recommend filing a complaint in court.

One example of a case of ours requiring a lawsuit to get our client the money she deserved involves a rear-end accident causing injuries to a pregnant female.  Our client was taken by ambulance from the scene of the accident and placed on a fetal monitor.  She had premature contractions and suffered neck and back injuries requiring medical treatment.  We presented her case to the insurance company that insured the responsible party that rear-ended her to engage in settlement discussions without filing her case in court.  The insurance company denied our client’s claim.  They based their denial on their insured alleging that our client backed up on a highway and backed into the front of the other car’s vehicle.

Our client was honest and deserving.  The insurance company refused to consider any evidence showing that their insured was a liar.  After considering a number of factors in this young woman’s case, I recommended filing her case in court.  My client understood this meant increasing the costs on her case as well as the time that would be involved.  I explained what litigating her case meant including her participation in the discovery process of her case and giving testimony under oath. She was provided a road map of what to expect on her case as it moved through the various stages of the court system.

In her case, the driver of the vehicle that rear-ended my client was a female and her husband owned the vehicle. Both the driver and her husband were named defendants in the case. I deposed both the driver and her husband whereby they answered my questions under oath before a court reporter.  My instincts that they were not telling the truth came out when they were testifying.  It became clear that the wife contacted her husband shortly after the accident.  They fabricated a story about my client’s driving that made no sense.  They claimed my client backed up a distance on a highway into their vehicle.  My client was also deposed.  She performed as I expected she would.  She came across honestly and explained the details of the accident that made sense and were credible.

Shortly after the testimony of my client and the other driver and her husband, the insurance company contacted me to discuss settlement of my client’s case.  After negotiating with the insurance company for the responsible party, my client received full compensation for the harm she suffered.  Without filing the case in court, the responsible party would never be held accountable in this case.

We have many examples of recommending to our clients that a lawsuit is necessary to get them the money they deserve and to hold the responsible parties accountable for the harm they have caused.  Several other examples include:

-An insurance company offering my client who was a pedestrian struck in a crosswalk only $15,000.00 and recommending a lawsuit against the driver resulting in a 1 million dollar resolution.

-An insurance company denying my client’s claim after she was struck as a pedestrian by a construction vehicle resulting in a 1 million dollar resolution after litigating the case in court.

-An insurance company denying my client’s claim for the brain damage their insured restaurant and bar caused by overserving a customer who drove drunk and crashed into my client’s vehicle resulting in a multi-million dollar resolution after litigating the case in court and extensive testimony of bar owners, bartenders and other employees.

-An insurance company denying my clients, a young boy and his mother, any compensation for the harm caused by their insured dog owner’s dog who attacked my clients resulting in a settlement for several hundred thousand dollars after filing the case in court.

All of these cases required a case to be filed in court with litigation before the insurance companies for the responsible parties would engage in any meaningful discussions to fully compensate my clients.  Only after forcing the responsible parties to answer and provide testimony under oath as well as other court involvement did the insurance companies come to the table with the money our clients deserved.

Lessons Learned Handling Personal Injury Cases for Over 25 Years

 As a victim of an accident, the decision to take your case to court requires careful legal analysis and consideration of what is in your best interest.  It is a personal decision. Every client, case and accident are unique.  It is not a “one size fits all”.  Many cases are successfully resolved fully compensating the injured party without any court action.  Other cases require court proceedings to take advantage of the legal system set up to protect victims harmed and to hold those responsible accountable and force them to answer in a court of law.

Having handled Injury cases for both the injured victims as well the insurance companies and their insureds/responsible parties for over 25 years, the secret to all of this requires understanding the facts and circumstances of each client, each accident and each case and performing a specific legal analysis for each and every client after hearing their individual story.

When someone is injured in a motor vehicle accident, slip and fall, or through any other accident, a thorough investigation of the accident events is necessary to determine the cause of the accident and secure important information. As a victim of an accident, make sure everything is done to protect your interests. The lawyers at Nadeau Harkavy LLC help victims and their families recover compensation in serious injury and wrongful death cases arising from car crashes and other accidents. If you have any questions about your legal rights relating to a car accident, wrongful death or other accident, feel free to contact us for a free consult today at 617-674-7640.