When people begin the process of searching for a personal injury attorney, they often wonder if the only path to resolving their matter is to file a lawsuit. While sometimes filing may be the only way, acting quickly in exploring your options often allows the option of pursuing a prelitigation resolution.
The Difference Between Prelitigation and a Lawsuit
A prelitigation resolution means that the matter is resolved prior to litigation. This simply means—before filing a lawsuit and engaging in the litigation process. In contrast, filing a lawsuit in court immediately begins the formal litigation process, which sometimes ends in a trial.
Statute of Limitations Becomes a Driving Force
Claims in California are subject to specific statutes of limitations, meaning a date by which you must bring a lawsuit, or you may be barred from pursuing the claim. California Code of Civil Procedure section 335.1 generally states that for a typical personal injury action, you have two years from the date of injury by which to file your suit. This code does not currently apply to cases of sexual assault, which are governed by different statutes and may have a longer filing period.
The statute of limitations is often the number one driving factor as to whether a lawsuit will or will not need to be filed in your case. For example, if you are involved in a car accident and wait one year and ten months to talk to an attorney, at that point there may be no other option but to file a lawsuit in order to adequately preserve your rights to bring the action. In contrast, if you are involved in a car accident and wait only two months to talk to an attorney, then a prelitigation demand could be the best option to start a potential resolution of your case.
Prelitigation Demand or Lawsuit?
While a prelitigation demand might not always result in an adequate offer, it is an excellent starting point in negotiations. A prelitigation resolution is often faster and less expensive than pursuing a lawsuit. It can also be a great option for clients who know they absolutely do not want to pursue a formal lawsuit. With time, you always have the option to pursue a prelitigation demand first.
When filing suit is the only path forward, rest assured this does not mean your case is absolutely going to trial. In fact, the majority of cases settle before trial. Cases often settle during the discovery process when both sides have had adequate time to assess the specific case’s strengths and weaknesses.
Which Option is Right for Me?
Each case is unique. Often, more severe injuries and being close to a statute of limitations deadline will require a lawsuit to be filed. A prelitigation demand can be a good option when time suffices, and the injuries tend to be more straightforward. What matters most is speaking to an attorney who can adequately evaluate your specific situation and help you choose the best strategy for your specific situation.
One last thing to keep in mind is that you as the client have the sole authority to accept or reject any offer given at any point in your case.
This article is for general informational purposes only and does not constitute legal advice. Every case is different — please consult with an attorney about the specifics of your situation.
