What Happens During Pre-Litigation In A Personal Injury Case?

What Happens During Pre-Litigation In A Personal Injury Case?
Calendar icon March 24, 2023

After an accident, many are left unsure how to proceed. Some may become overwhelmed at the thought of potentially filing a lawsuit, and others may dread filing a claim in fear of “suing” the other party. While dealing with injuries and potential property damage can be stressful enough, the thought of a long-drawn-out battle with the insurance company to recover money can be a lot to handle.

Although filing a claim may seem overwhelming, it is an essential part of recovering compensation for medical bills, lost wages, and damage to your property. In fact, many insurance claims, whether handled by yourself or with the help of an attorney, will settle before ever reaching a lawsuit.

What is Pre-Litigation?

Pre-litigation refers to the legal process that occurs before a lawsuit is filed. This includes gathering necessary documents and evidence relevant to your claim, paying medical bills, and negotiating a fair settlement offer with the insurance company.

What Happens In The Pre-Litigation Process?

The pre-litigation phase of a personal injury lawsuit will typically begin once an injured party reaches out to a personal injury attorney to represent them in their claim. The attorney will conduct an initial consultation – typically free of charge – to determine if the injured party has a viable case.


If the attorney determines that there is a viable case and agrees to represent the injured party, the attorney will send out a letter notifying the defendant’s insurance company of representation and requesting the defendant’s insurance policy limits and coverage. Typically, the attorney will request that the carrier deal with him or her directly moving forward.


After notice has been sent to the defendant’s insurance company, and insurance policy coverage and limits have been established, the attorney will continue the investigation of your accident and resulting injuries.

The investigation phase is extremely important, as it builds the foundation for a successful case. Your attorney will work to gather your medical records, any witness statements, police reports, and any other documentation that is relevant to your claim. To help strengthen your case, your attorney may choose to work with accident reconstructionists to prove that you are not liable for your injuries.

Demand Letter

Once your attorney has gathered sufficient evidence to support your claim, they may send a demand letter to the defendant’s insurance company outlining your injuries and damages, and demanding a settlement to avoid a lawsuit. A demand letter is a valuable tool if the insurance company is negotiating in good faith.

Settlement Negotiations

Once the demand letter is received by the defendant’s insurance company, settlement negotiations will begin between your attorney and the insurance company. Your attorney will always inform you of a settlement offer made by the insurance company; as your attorney, he or she can assist you in determining whether the offer is a fair resolution depending on your injuries and claims.

If your attorney and the defendant’s insurance company agree on a fair settlement, the claim is resolved. However, if the insurance company refuses to a fair and amicable settlement, your attorney may recommend pursuing a lawsuit in an attempt to collect the compensation you deserve.

How Long Does Pre-Litigation Take?

The length and time that it takes to complete the pre-litigation phase of your personal injury case depends on a number of factors including the complexity of your case, the severity of your injuries, the length of your medical treatments, availability of witnesses, and the insurance company’s willingness to reach a fair settlement.

While it’s nearly impossible for an attorney to predict the amount of time it will take to finalize your claim, there are some things that you, as the plaintiff, can do to help speed up the process:

Thorough communication: Do your best to inform your attorney of any minor or major details that pertain to your case and be sure to keep them updated with any new information as it becomes available to you. This can greatly help during the investigation phase. This also pertains to any changes in medical treatment you may receive.
Be responsive: This is a two-way street. Your attorney works with you to be available to answer any questions you may have about the legal process. In return, do your best to be responsive when your attorney reaches out, as it is likely regarding your case and/or information needed to further their investigation.
Follow through with medical treatments: In order to better your chances at receiving compensation for your injuries, be sure to complete your recommended medical treatments until your treating physician deems that you have reached maximum recovery. It may seem easier and quicker to skip appointments, but this will hurt you in the long run.
Keep your documents: Keep your important insurance or medical documents organized and on-hand to avoid any slow-downs in the investigation process that can result when your attorney needs to collect them from the doctor or insurance company directly.

Pre-Litigation Vs. Lawsuit

The pre-litigation phase and a lawsuit are two distinct stages in the personal injury claim process. Ideally, the pre-litigation process will attempt to settle your case with the insurance company without dealing with the legal proceedings, costs, and delays of a lawsuit.


Pre-litigation, also known as pre-suit, follows all of the steps outlined above in an attempt to settle your claim with the insurance company. This process is a standalone process from a lawsuit, and begins the moment you call the insurance company after your accident.
The pre-litigation phase is typically comprised of:

  • Establishing a claim
  • Retaining legal representation
  • Recorded statements with the insurance company
  • Medical treatments
  • Settlement negotiation with the insurance company
  • Signing releases if a settlement is made



A lawsuit is a formal legal action by a plaintiff (the injured party) against a defendant (at-fault party). Once a lawsuit has been filed, the case can settle at any point before it reaches a trial before a judge and jury.

Lawsuits consist of:

  • Filing a complaint with the court
  • Receiving and analyzing the defendant’s answer to your complaint
  • The discovery phase
  • Depositions
  • Mediations
  • Trial
  • Appeals


While it’s important to remember that every lawsuit has gone through pre-litigation, not every claim that has gone through pre-litigation will become a lawsuit.

Injured? Call The Personal Injury Attorneys At Cellino Law

Not sure what to do after you’ve been involved in an accident? Don’t wait to contact the personal injury attorneys at Cellino Law.

With over $2 billion in settlements for our clients, you can rest assured that our team of attorneys have the knowledge and experience to help you recover maximum compensation for you injuries – even if that means taking the insurance company to trial.
Contact us today for a free and confidential case consultation at 800-555-5555.

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Content checked by the personal injury attorney Ross Cellino. As a family man and a trial attorney, I pride myself on winning cases and serving the community. With over 35 years of experience, I understand the function of a jury, how juries arrive at conclusions, and the role that the jury plays in administering justice. I know how to win cases. You can find us in Manhattan, Buffalo, Melville, Rochester, Brooklyn, The Bronx, Queens and other locations throughout New York.



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