If you’ve been in an accident, you may be entitled to recover compensation for your medical bills, lost wages, property damage, pain and suffering, and more. But as you begin exploring the process, you’ll likely come across two terms:
- A personal injury claim
- A personal injury lawsuit
These phrases are often used interchangeably, but they are distinct legal processes. One is not necessarily better, and each has pros and cons that can impact which is best for your situation.
In this blog post, McAllen and San Antonio personal injury lawyer Dr. Louis Patino and his team shed light on the difference between a lawsuit and a claim and what you need to consider when deciding to file a claim vs a lawsuit.
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What Is a Personal Injury Claim?
A personal injury claim is typically the initial step for seeking compensation when you sustain injuries due to the negligence of another person or party.
Let’s say you’re in a car accident caused by a distracted driver. All drivers in Texas must legally carry liability insurance to cover expenses — such as the cost of medical treatment and vehicle repairs — incurred by others in an accident.
You can file a claim with the at-fault party’s insurance company to recover compensation for your injuries.
If you’re hurt in a slip-and-fall accident at a restaurant because staff failed to warn you about a spillage, you can lodge a claim with the business’s liability insurance provider.
The term “personal injury claim” typically refers to this process of filing an insurance claim.
Filing a Personal Injury Claim: The Process
Each insurer has varying policies, and accidents impact victims differently, so no two personal claims are the same. However, most claims follow the same process:
Gathering Evidence
You need evidence to prove the other party is liable for your accident.
You might gather some evidence — such as eyewitness testimony, medical records proving your injuries, and photographs and videos of the scene — immediately after your accident. But you may not collect other evidence to support your claim until much later. This evidence can include a car accident crash report — which police may not file until up to a week after the collision — and further medical documents, which you may need to wait for until after you’ve had treatment so your doctor can determine if you’ve reached maximum recovery.
Don’t underestimate the potential time it will take to gather evidence to support your claim. When you begin settlement negotiations, you must determine how much you’ll be willing to accept. We recommend waiting until you understand the total cost of your damages so you can accurately calculate this figure and get the compensation you deserve.
While one of the benefits of pursuing a personal injury claim versus a lawsuit is the potential for a faster resolution, you still need to be prepared, and the process takes time.
Related: Calculate Your Damages with Our Personal Injury Calculator
The Insurance Adjuster
Once you’ve notified the insurance company about the accident and your intention to file a claim, they will assign an insurance adjuster to your case.
The adjuster is responsible for investigating the accident and determining if their client is liable and how much the insurance claim is worth.
If you have a viable claim, the adjuster will usually make you an offer.
It can be tempting to accept the insurance company’s offer. However, it’s an insurer’s priority to pay out as little as possible in claims, so the initial figure is typically low and may not be enough to cover your expenses.
When you accept a settlement, you release the party from liability, meaning you cannot recover additional compensation — such as by filing a personal injury lawsuit. If your injuries worsen or you later find out you won’t be able to return to work, you may struggle to afford your medical bills and provide for yourself and your family.
The best choice is to make a demand, which begins settlement negotiations.
Negotiation
The settlement negotiation process in a personal injury claim aims to reach a fair settlement without going to court.
It begins with a demand for compensation. When considering a claim vs a lawsuit, the former is typically less formal than the latter, so this letter can sound scarier than it is. Rather than requesting a specific amount, a settlement demand states your intent to recover compensation and allows the insurance company to settle the claim out of court.
The demand will outline the facts of your claim (the when, where, who, etc.), your injuries and damages, and the evidence supporting your claim.
The ball is then in the other party’s court — they may agree to pay or counter the offer.
This back-and-forth continues until either side accepts the settlement terms or the parties reach a stalemate.
If you reach an agreement, both parties sign a formal contract, which formally releases the other party from liability. Then, the insurance company pays the agreed sum.
If negotiations fail, you may decide to file a personal injury lawsuit.
What Is a Personal Injury Lawsuit?
A critical difference between a lawsuit and a claim is that the latter is a formal legal proceeding. When you seek compensation via a lawsuit, you become the plaintiff — the person bringing the claim. The other party becomes the defendant.
You might file a personal injury lawsuit in several scenarios:
- When negotiations with the responsible party’s insurance company fail.
- When the insurance company denies liability.
- When your damages exceed the responsible party’s insurance coverage.
While an insurance company representative will handle a personal injury claim, a judge or jury decides a personal injury lawsuit’s outcome.
Filing a Personal Injury Lawsuit: The Process
A lawsuit is a structured, linear legal procedure comprising steps to follow and formalities to go through — you can’t file a lawsuit one day and argue your case in court the next.
The first step in initiating a personal injury lawsuit is filing a complaint with the district court. The complaint outlines the facts of the case and your damages. If the defendant does not respond to the complaint, you may request a default judgment from the presiding judge. However, it’s rare for a defendant to fail to respond.
Often, the defendant will file a motion to dismiss, asking the judge to throw out the lawsuit. This motion does not necessarily mean your case doesn’t have legs. An attorney typically files this motion for procedural reasons — such as a lack of jurisdiction or incorrect serving of the complaint — rather than based on the case’s merits.
A counterclaim is another potential response, where the defendant sues the plaintiff for their injuries. A defendant may countersue when they believe you contributed to the crash.
From here, the parties have two choices: to settle the lawsuit or prepare for trial.
Preparing for trial involves several phases. First is the discovery phase, where both sides exchange the evidence they wish to introduce in court. This evidence may include reports, photographs, and depositions — sworn testimony taken in an attorney’s or court reporter’s office to gather information and assess the credibility of witnesses.
The pre-trial phase can be lengthy, comprising several conferences and motions to determine what evidence will be allowed during the trial. Settlement negotiations and mediation sessions are usually ongoing throughout, and the case may settle at any moment.
If both parties still cannot agree, the presiding judge will eventually set a trial date.
Related: Read More about the Personal Injury Court Procedure
Personal Injury Claim vs Lawsuit: The Key Differences
So now we’ve explained what a personal injury claim and lawsuit are, but what are the differences between the two in terms of how long each takes, the risk involved, and how much compensation you can get?
| Claim | Lawsuit | |
| Risk | Low | High |
| Speed | Faster resolution | Lengthy process |
| Exposure | Private | Public record |
| Compensation | Subject to insurance policy limits | A judge or jury can order significant compensation, plus punitive damages |
Risk
Risk is a vital factor when considering a claim vs a lawsuit. A personal injury claim is the closest you can get to a “guaranteed” settlement. As long as the insurance company doesn’t outright deny your claim — which is unlikely if you have ample evidence — they will make an offer.
The greatest risk with accepting a settlement is that it won’t fully compensate you for future losses.
There is far more risk in pursuing a lawsuit. Once your case is in the hands of a jury, there’s no going back. A jury may determine the defendant was negligent and award you a hefty compensation payout, but they may side with the defendant instead. Juries are unpredictable, and there’s always a chance you will lose your case and receive no compensation.
Speed
One of the more significant differences between a lawsuit and a claim is how long they each take to resolve. The speed of a claim depends largely on your willingness to compromise. You can resolve a claim quickly if you’re satisfied with accepting a lower offer. If you want to push for a higher settlement — likely involving several rounds of negotiation — your claim will take longer to resolve.
Your evidence is also a crucial factor. If you have a strong case, the insurance company might offer a substantial sum earlier in the process if it means you’re more likely to agree. Remember, a lawsuit is risky for the other party too, as the jury may hold them liable for a larger payout than you’ve asked for during negotiations.
A lawsuit can also be incredibly lengthy. The evidence-gathering phase takes time — your attorney may take depositions of expert witnesses, which can take time to arrange. Pre-trial motions and conferences are subject to the court docket, so you may wait months between meetings. It’s not uncommon to wait years for a trial date, and many district courts still have backlogs from the COVID-19 pandemic.
Exposure
Personal injury claims are between the injured party and the insurance company, affording privacy — the only way others will know about your claim is if you tell them. Lawsuits are public proceedings, meaning anyone can walk into court on the day of your trial or download judgments and documents related to your case online. Your lawsuit may also attract media coverage and scrutiny, though this is less common in civil trials — unless the defendant is a high-profile party.
Deciding between a Claim vs Lawsuit: Which Is Right for You?
While you should consider risk, speed, and exposure when considering a personal injury claim versus a lawsuit, other factors may impact your decision.
How Severe Are Your Injuries?
The severity of your injuries can influence your choice between a claim and a lawsuit. If you have minor injuries, you may prefer to settle a personal injury claim to recover your damages and move forward. A lawsuit may be advisable if you have severe injuries resulting in a permanent disability or you’re likely to incur sizable costs for future treatment.
Is There a Dispute over Liability?
If the defendant is undoubtedly liable and the insurance company does not dispute it, a personal injury claim may be the most appropriate avenue for seeking compensation. However, you may still prefer to file a lawsuit if the insurance company refuses to offer a fair settlement.
If multiple parties are responsible for the accident causing your injuries and they each dispute how much they each contributed, or if a defendant claims you are partly responsible for your injuries, a trial may be necessary to determine the comparative fault of each party.
Does One Party Have Limited Insurance Coverage?
The other party’s insurance limit is another factor when weighing a claim versus a lawsuit. If the defendant has minimum coverage and your losses exceed the policy amount, you may want to file a lawsuit to seek the compensation you’re entitled to.
You will also need to file a lawsuit if you wish to recover compensation from a party who does not have insurance.
What Does Your Attorney Say?
Personal injury claims and lawsuits are complex. You should always consult your attorney before accepting a settlement, even if you have no intention of filing a lawsuit. Your personal injury lawyer can advise on whether the offer is fair and negotiate maximum compensation.
Your lawyer can also explain the legal process and your chances of success at trial. For example, if the other party does not have car insurance, your attorney can explore whether the defendant has other assets —- such as property — or income you can recover from. If the defendant doesn’t have insurance because they cannot afford it, your personal injury lawyer can explore whether other parties with sufficient funds are liable for your accident.
The final decision is yours, but if you have a strong case, your attorney might recommend a lawsuit to secure a much higher payout.
Understanding the differences between a personal injury claim and a lawsuit is crucial for individuals seeking compensation for their injuries and damages. While a claim offers a more straightforward and less formal process, a lawsuit can result in a substantial monetary award.
Our personal injury lawyers in McAllen and San Antonio will protect your legal rights, build a strong case, and fight for maximum compensation for your injuries, whichever route you choose. For a free consultation to see if you have a claim, call 855-LAW-NINJA, submit a contact form, or visit us in McAllen or San Antonio.
