Burnett & Williams

How Does the Case Process Work?: Part 1, The Investigation.

How Does the Case Process Work?: Part 1, The Investigation.

law gavel resting on money

Getting a fair settlement in a legal matter is a complex endeavor, and many of our clients are surprised to discover how long it can take for a claim to be settled. Beginning with investigation, which can take a few days or several months, settlements involve a series of steps that require thorough research and ongoing oversight. The Investigation is the first in a series of articles outlining the settlement process.

Prior to undertaking representation in a personal injury suit, an attorney conducts a factual, legal investigation of the matter. This includes meeting with the client, assessing the injury, and identifying the defendant or defendants. An attorney must be able to show that the defendant is liable, that damages can be proven, and that the facts allow for tort recovery. There are several torts that allow for recovery; the attorney must determine which cause of action is appropriate for a particular case.

Once an attorney is satisfied that an injury has occurred as a result of a tort committed by a defendant, the next step is to make sure that damages can be recovered. Damages are an award that is paid to someone as compensation for a loss or injury. The ultimate goal of a personal injury action is to compensate the plaintiff for an injury.

The next element of the legal investigation is to determine if there are defenses that would prevent recovery, including:

  • Contributory negligence
  • Expired statute of limitations
  • Assumption of the risk
  • Consent

The final step in the investigation is to determine if an attorney’s involvement in the case can increase the total settlement or award value. An attorney only undertakes representation if his involvement can substantially increase the overall award. One third of the client’s final settlement amount will be paid as attorney’s fees, therefore an attorney wants to be sure that his involvement will be valuable and helpful to the client.

Before filing a lawsuit, an attorney will negotiate with the insurance company to obtain the best result without proceeding to litigation. Once a lawsuit is filed, the case will typically be heard within one year of service on the defendant. The Virginia Supreme Court has established a goal of setting a trial date within 12 months of service.

For more on the settlement process, explore our Case Process page.