A lawsuit is a legal cause of action filed with a court demanding financial compensation for your injuries and other financial damages. In California, to bring a lawsuit in a personal injury case you must file a Complaint for Damages with the Superior Court in the county where the accident or incident occurred. The court will issue a Summons, which you must then serve by personal delivery, along with the Complaint, upon the person you are suing, who is called the defendant. Service by personal delivery means that a sheriff or a registered process server physically goes out and finds the defendant and hands the Summons and Complaint to him or her or an adult member of their household or place of employment. The defendant then has 30 days to appear in the court action, usually by filing an Answer to the Complaint.
When you suffer injuries as a result of someone else’s negligence, your right to bring a claim for compensation, and right to file a lawsuit, is against the person who injured you, not their insurance company. If you were in a car accident, you have a right to sue the other driver. You cannot sue their insurance company since the insurer did not cause your injuries. If you slipped and fell on a clear liquid in a grocery store, you have a claim against the employees of the business and also the employer who bears ultimate responsibility for the acts of the employees. Your claim is not against the store’s insurance carrier who did nothing to cause your injuries.
If the defendant has insurance that was valid and in effect on the date of the incident, upon being served with a lawsuit he or she will inform their insurance carrier that a legal action has commenced, and the insurance company will take over the defense. They will hire one or more personal injury lawyers or utilize in-house attorneys to appear in the action, file a response, typically an Answer, propound written discovery, and defend the case all the way through a court trial.
Experienced personal injury attorneys find that it is often more efficient to simply go straight to the insurance company, present your case (as they would if a lawsuit were filed) and demand fair compensation be paid to you without having to file a lawsuit. Provided the case is properly prepared as though you are going to trial, this strategy frequently works and saves both time and costs, resulting in a fair settlement for you and more money in your pocket. The process is also somewhat expedited since an out-of-court settlement will be reached much sooner than if you had to wait to go through a long and protracted lawsuit.
A lawsuit is not required in every case. Some cases resolve without the filing of a lawsuit through an out-of-court settlement. But if the insurance company does not offer you a fair settlement, then your attorney absolutely will recommend that you file a lawsuit in court, serve the defendant, and take the case to trial before a jury. At trial, your lawyer will explain your case, supply the supporting evidence, ask the jury to award you fair compensation for your injuries and other losses.