Checklist · Tort

Evaluating a Personal Injury Claim: A Practical Checklist

28 U.S.C. §§ 2401(b)

Type: Checklist
Jurisdiction: National
Date: 2024-03-15
Topic: Tort

Evaluating a personal injury claim is a disciplined sequence, not a gut reaction to a bad photograph. This checklist walks the evaluation from the one deadline that can kill the case on day one — the statute of limitations, and any public-entity notice-of-claim period that runs in months rather than years — through defendant identification, the state's comparative or contributory fault regime, evidence preservation, the medical record, economic and noneconomic damages, statutory caps, punitive exposure, insurance and defendant solvency, and the liens that quietly consume the recovery. It is built around the truth that governs every plaintiff's practice: a great liability case against an empty defendant is worth nothing, and a modest case with a large ERISA lien can pay the client nothing at all. Nearly every rule discussed here is state law and genuinely varies; the checklist teaches the framework and tells you what to confirm in your jurisdiction. Use it at intake, again before the demand, and once more before you file.

Evaluating a Personal Injury Claim: A Practical Checklist

Tort > Personal Injury | Published 15 March 2024 - Updated 22 August 2025 | UpLaw - uplaw.us

Every personal injury case is really three cases stacked on top of each other: a liability case, a damages case, and a collection case. Lose any one of them and the other two are decoration. Evaluate all three before you sign the client.

Keywords: personal injury, statute of limitations, notice of claim, comparative fault, contributory negligence, spoliation, economic damages, noneconomic damages, damage caps, punitive damages, ERISA lien, Medicare Secondary Payer, UM/UIM, demand package

How to use this checklist

Work the phases in order. The sequence is not arbitrary — Phase 1 exists because a missed deadline moots every other phase, and Phase 10 comes before Phase 14 because the settle-or-sue decision is meaningless until you know how much money exists in the world to pay a judgment.

Run the checklist three times: at intake (fast, to decide whether to take the case), before the demand (thorough, to price it), and before you file (final, to confirm nothing has moved). This document is the personal-injury-specific companion to UpLaw's general intake tools — Evaluating a New Civil Case: A Practical Checklist and Assessing a Civil Lawsuit: A Comprehensive Early-Case Framework — and it assumes the doctrinal foundation set out in Tort Law: A Comprehensive Guide to Negligence, Intentional Torts, and Strict Liability.

A standing warning, stated once and meant throughout: tort law, products liability, and insurance law are state law. There is no nationwide rule on any of the questions that decide a personal injury case. Limitations periods, notice-of-claim deadlines, comparative-versus-contributory fault, joint and several liability, the design-defect test (consumer expectations versus risk-utility), damage caps, the collateral source rule, UM/UIM and stacking, bad-faith standards, lien and subrogation statutes, and the availability and insurability of punitive damages all differ — sometimes radically — across the fifty states. This checklist teaches the framework, the Restatement approach, and the majority position, and it uses representative states as illustrations only. Nothing in it states a rule that governs everywhere.

A second warning, about numbers. Every figure in this document — damage caps, notice periods, the federal financial-responsibility minimums for motor carriers, record-retention periods, and lien thresholds — is subject to amendment, indexing, and constitutional challenge, and several of them change on a regular cycle. Treat every number here as a pointer to a source, never as a fact you may rely on. Pull the current statute or regulation before you rely on any figure in this checklist.

Our running example

Delia Marchetti, 44, an operations manager at Ironvale Manufacturing, is stopped at a county-road intersection when a box truck owned by Cardinal Freight Lines LLC and driven by its employee rear-ends her at roughly 40 mph. Her driver's seatback collapses rearward on impact; she suffers a cervical fracture, a traumatic brain injury, and two surgeries. The intersection's stop sign was obscured by county-maintained vegetation. Her medical bills are paid by Ironvale's self-funded ERISA health plan. She will appear throughout.

Phase 1 — Calendar the statute of limitations FIRST (and any notice-of-claim deadline)

[ ] Identify the governing limitations statute for each theory — negligence, products liability, medical malpractice, wrongful death, and survival claims often carry different periods.
[ ] Determine the accrual date. Is it the date of injury, or does a discovery rule apply (accrual when the plaintiff knew or should have known of the injury and its cause)? Compare United States v. Kubrick, 444 U.S. 111 (1979), applying that standard under the Federal Tort Claims Act.
[ ] Check for a statute of repose — a separate, harder outer limit measured from the product's sale or the improvement's completion, which can bar a claim that has not yet even accrued.
[ ] Check tolling: minority, incapacity, defendant's absence from the state, fraudulent concealment, bankruptcy stay.
[ ] Is any defendant a public entity? If so, find the notice-of-claim statute and calendar it today. These periods run in days or months, not years, and are frequently jurisdictional. Representative examples: New York requires a notice of claim within 90 days (N.Y. Gen. Mun. Law § 50-e); California requires presentation of a personal injury claim within six months (Cal. Gov't Code §§ 910, 911.2, 945.4). Under the Federal Tort Claims Act, an administrative claim must be presented within two years and suit filed within six months of denial (28 U.S.C. §§ 2401(b), 2675(a)).
[ ] Calendar the deadline in two independent systems, with 180-, 90-, and 30-day tickles.
[ ] If the deadline is imminent and you are still investigating, decide now whether to file a protective complaint.

Why it matters, and the traps. Nothing else in this checklist survives a blown deadline, and the deadline that blows cases is almost never the obvious one. It is the notice of claim nobody thought to look for. Delia's crash involves a county — vegetation on a county right-of-way obscured the stop sign. That converts a three-year negligence case into a case with a possible ninety-day or six-month fuse, and in most states the failure to present a timely claim is not excused by the fact that counsel did not realize a public entity was involved. The second trap is the multi-theory case with multiple clocks: Delia's claim against Cardinal Freight sounds in negligence, but her claim against the vehicle manufacturer for the collapsing seatback sounds in products liability and may face both a shorter limitations period and a statute of repose measured from the date of first sale. Run the clock analysis theory by theory and defendant by defendant, never once for "the case." For the special rules that govern claims against governmental defendants, see Suing the Government: A Guide to Damages in Administrative and Public-Entity Litigation.

Phase 2 — Intake: the client, the incident, and immediate preservation

[ ] Take a full narrative statement while memory is fresh; record it with consent.
[ ] Collect the police or incident report, the CAD/911 audio, EMS run sheets, and the emergency department record.
[ ] Photograph the client's visible injuries now; bruising and scarring change within days.
[ ] Obtain a complete list of every treating provider, including pre-incident providers.
[ ] Get signed HIPAA authorizations and employment-records authorizations at the first meeting.
[ ] Canvass for surveillance video (intersection cameras, businesses, doorbells, dashcams) — most systems overwrite within 7 to 30 days.
[ ] Identify every witness and get contact information before they move.
[ ] Assess the client candidly: prior claims, criminal history, social media, credibility, likeability. Jurors will.
[ ] Instruct the client, in writing, to stop posting on social media and to follow the treatment plan.
[ ] Confirm the client's own coverages: med-pay, PIP, UM/UIM, and health insurance.

Why it matters, and the traps. The evidentiary value of a personal injury case decays on a curve steeper than most lawyers expect. Video is the classic loss: the convenience store at Delia's intersection has a camera pointed at the crosswalk, and it will overwrite in fourteen days. A letter sent in week six is a letter about a tape that no longer exists. The second trap is the client herself. A plaintiff who stops treating for eight weeks because she "felt fine" hands the defense a gap in the record that no expert can fully close, and a plaintiff who posts a photograph of herself at a wedding hands them a demonstrative exhibit. Set expectations at hour one, in writing.

Phase 3 — Identify every potential defendant and every theory

[ ] The direct tortfeasor (here: the truck driver).
[ ] Vicarious liability — the employer, under respondeat superior, for conduct within the scope of employment.
[ ] Direct corporate negligence — negligent hiring, training, supervision, retention, and entrustment; negligent maintenance.
[ ] Statutory and regulatory violations supplying negligence per se or evidence of negligence — for a commercial motor carrier, the Federal Motor Carrier Safety Regulations, including hours-of-service (49 C.F.R. Part 395) and inspection, repair, and maintenance obligations (49 C.F.R. § 396.3).
[ ] Product defect — a crashworthiness or "second collision" theory against the vehicle manufacturer where the vehicle failed to protect the occupant in a foreseeable crash. Confirm which design-defect test your state applies: some states use a consumer-expectations test, some a risk-utility test requiring proof of a reasonable alternative design (the approach of Restatement (Third) of Torts: Products Liability § 2(b)), and some use both or let the plaintiff elect. This is genuine state-by-state variation, not a formality — it dictates what your engineer must be prepared to prove.
[ ] Premises or roadway defendants — property owners, contractors, and the public entity responsible for maintaining sight lines and signage.
[ ] Dram shop / social host liability if alcohol is in the picture (availability and scope vary sharply by state).
[ ] Derivative claims: loss of consortium for the spouse; wrongful death and survival claims if the injury proves fatal.
[ ] Screen for the Graves Amendment, 49 U.S.C. § 30106, which bars vicarious liability against vehicle lessors and rental companies engaged in the business of renting or leasing — but does not bar claims for the lessor's own negligence.

Why it matters, and the traps. Naming only the obvious defendant is the single most common way to leave money on the table. Delia's driver is judgment-proof; Cardinal Freight is insured; the vehicle manufacturer is solvent; the county has a fund. Each requires a different theory. And the theories are not merely cumulative — they are strategic. A negligent-entrustment or negligent-hiring claim against Cardinal Freight opens discovery into the driver's qualification file, prior violations, and the company's safety culture, which is exactly the evidence that supports punitive damages. Note the trap in reverse: many jurisdictions hold that when an employer admits respondeat superior, direct-negligence claims against it are barred as redundant — a doctrine that varies by state and that defense counsel will invoke early, precisely to shut down that discovery. Know your state's rule before you plead. For the defect theory, start with Products Liability: A Comprehensive Guide to Design Defect, Manufacturing Defect, and Failure to Warn, and read the mirror-image Defending a Products Liability Claim: A Practical Checklist to see how your case will be attacked.

Phase 4 — Assess liability under YOUR state's fault regime

[ ] Identify the regime. There are three, and the difference is not marginal:
- Pure comparative fault — recovery is reduced by the plaintiff's percentage, even at 90% fault (e.g., California, following Li v. Yellow Cab Co., 13 Cal. 3d 804 (1975); New York).
- Modified comparative fault — recovery is barred at a threshold, either 50% ("as great as") or 51% ("greater than"). This is the majority approach.
- Contributory negligence — any fault by the plaintiff, however slight, is a complete bar. It survives in a small handful of jurisdictions, traditionally identified as Alabama, Maryland, North Carolina, Virginia, and the District of Columbia. Confirm current status; legislatures periodically revisit it.
[ ] Where contributory negligence applies, evaluate last clear chance and any statutory exceptions.
[ ] Determine whether your state uses joint and several liability, several-only (proportionate) liability, or a hybrid keyed to a fault threshold. See Restatement (Third) of Torts: Apportionment of Liability.
[ ] Determine whether fault may be apportioned to nonparties (empty chairs), settling tortfeasors, or immune employers.
[ ] Check the seat belt defense — some states admit nonuse to reduce damages, others exclude it entirely by statute.
[ ] Assess assumption of risk and any applicable immunities (recreational use, charitable, governmental).

Why it matters, and the traps. This is the phase that most changes a case's value, and it is the phase most often skipped because "liability is clear." Assume Delia is 15% at fault for a rolling stop. In a pure comparative state, her $2,000,000 verdict becomes $1,700,000. In a modified state, it is the same — but if the jury puts her at 51%, she gets zero. In Virginia or Maryland, a jury finding of any contributory negligence gives her zero, and a case worth seven figures elsewhere is worth its nuisance value there. The second trap is apportionment to empty chairs. If your state permits fault to be assigned to a nonparty, the defense will point at the county, the vehicle manufacturer, and the phantom driver who cut the truck off — and every point they land is a point off your recovery from the defendant who can actually pay. In a several-only jurisdiction, that is a direct, uninsurable loss. Plead and prove around the empty chairs.

Phase 5 — Preserve evidence: spoliation letters, scene, vehicle, product

[ ] Send a preservation (spoliation) letter to every potential defendant and custodian within days, not weeks. Be specific.
[ ] For a motor carrier, demand preservation of: the electronic logging device and hours-of-service records, driver qualification file, dispatch and GPS/telematics data, engine control module ("black box") data, ECM download, maintenance and inspection records, post-accident drug and alcohol test results, and the driver's cell phone records. Note that the FMCSRs require carriers to retain records of duty status and supporting documents for only six months (49 C.F.R. § 395.8(k)(1)) — after that, the carrier may destroy them lawfully unless you have demanded preservation.
[ ] Demand that the vehicles be preserved in their post-crash condition and not repaired, sold, or salvaged; if the vehicle is in a salvage yard on a storage clock, buy it or secure it.
[ ] Inspect the scene before it changes — measure, photograph, and document sight lines and vegetation while they still match the day of the crash.
[ ] Issue an internal litigation hold on your own client's devices, records, and social media; the duty runs both ways.
[ ] Preserve the product itself under chain of custody if there is a defect theory; agree on a protocol for any destructive testing in writing.
[ ] Know the sanction: in federal court, Fed. R. Civ. P. 37(e) governs loss of ESI and permits an adverse-inference instruction only on a finding of intent to deprive. State spoliation doctrine varies widely — some states recognize an independent tort of spoliation, most do not.

Why it matters, and the traps. Delia's case turns on whether the driver had exceeded his hours of service. That answer lives on an ELD whose data the carrier may lawfully discard after six months. A preservation letter mailed on day forty is the difference between a punitive-damages case and a rear-end-collision case. The trap on the other side is symmetrical and underrated: plaintiffs' counsel who send aggressive spoliation letters while their own client is deleting Instagram posts invite a sanctions motion that will define the case for the judge. For the mechanics of scoping, issuing, and documenting a hold — and the Rule 37(e) framework — see Issuing a Litigation Hold and Preserving ESI: A Practical Checklist.

Phase 6 — Build the medical record: causation, treatment, pre-existing conditions

[ ] Obtain complete records from every provider — not summaries, and not just the bills. Get imaging on disc.
[ ] Obtain records for the relevant pre-incident period. You will find the prior back complaint before the defense does, or you will find it in a deposition.
[ ] Build a chronology: mechanism of injury → immediate complaints → diagnostics → treatment → surgeries → current deficits → permanency.
[ ] Secure a treating physician's opinion on causation and permanency, stated to a reasonable degree of medical probability, and on the need for future care.
[ ] Identify gaps in treatment and get the explanation on the record (cost, childcare, work, insurance denial).
[ ] Understand the eggshell plaintiff rule: a defendant takes the plaintiff as he finds her and is liable for the full extent of harm even if a pre-existing condition made it worse (Restatement (Second) of Torts § 461). But this is aggravation, not creation — you must still separate what the crash caused from what already existed.
[ ] Anticipate a Fed. R. Civ. P. 35 independent medical examination and prepare the client for it.
[ ] For a TBI, obtain neuropsychological testing and before-and-after lay witnesses; the deficits are invisible on an MRI and must be shown through people who knew her.

Why it matters, and the traps. Medical records are not evidence of what happened; they are evidence of what someone wrote down in ninety seconds. A triage note that says "denies head injury" — recorded while Delia was strapped to a backboard with a cervical fracture — will be enlarged to poster size at trial. Read every page, find the bad entries yourself, and get the treating provider to explain them before the defense expert does. The second trap is over-claiming. A plaintiff with a genuine, well-documented TBI who also insists that the crash caused her long-standing degenerative disc disease invites the jury to disbelieve the whole package. Concede the concedable. Credibility is the asset you spend last.

Phase 7 — Economic damages: medicals, lost earnings, earning capacity, future care

[ ] Past medical expenses. Determine what your state allows you to claim: the amount billed, or the amount paid after insurance write-offs. States genuinely split on this, and the difference is often six figures. This is the "billed versus paid" question and it must be answered from your own state's case law and statutes.
[ ] The collateral source rule. The traditional rule is that payments from sources independent of the tortfeasor do not reduce the plaintiff's recovery (Restatement (Second) of Torts § 920A(2)). Many states have modified or abrogated it by statute, especially in medical malpractice. Confirm.
[ ] Past lost earnings — documented with pay records, tax returns, and an employer verification.
[ ] Loss of future earning capacity — the compensable loss is the impairment of the capacity to earn, not merely wages actually lost. Prove it with a vocational rehabilitation expert plus a forensic economist.
[ ] Future medical and life care costs — a life care plan prepared by a certified life care planner, priced to the client's geography, and reduced to present value by an economist.
[ ] Household services replacement cost.
[ ] Confirm how your state handles present value discounting and whether prejudgment interest is available.

Why it matters, and the traps. In a serious case, the life care plan is the single largest number in the demand, and it is the number the defense will attack hardest — item by item, at a Daubert hearing if they can. A life care plan that includes a $9,000 annual gym membership and a lifetime supply of a supplement lends the defense a lever to attack the credibility of the $1.4 million attendant-care line item sitting right below it. Build it clean. The second trap is anchoring the case to the medical bills. Delia's $310,000 in bills is not what her case is worth; her lost earning capacity as a 44-year-old operations manager who can no longer manage a warehouse floor may be three times that. For the broader valuation framework — proof burdens, expert requirements, and how courts test damage models — see The Litigation Damages Toolkit: Valuing and Proving Money Awards.

Phase 8 — Noneconomic damages and statutory caps

[ ] Catalog the components your state recognizes: past and future pain and suffering, mental anguish, disfigurement, loss of enjoyment of life, and loss of consortium.
[ ] Find your state's cap statute, if any, and read it precisely. Ask: Does it apply to all personal injury, or only to medical malpractice? Does it cap noneconomic damages only, or total damages? Is there a separate (usually higher) figure for wrongful death or catastrophic injury? Is the cap per plaintiff, per defendant, or per occurrence? Is it indexed to inflation?
[ ] Check whether the cap is still good law. Several state supreme courts have struck noneconomic damage caps under their own constitutions — Georgia's supreme court invalidated its medical malpractice cap in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt (Ga. 2010) as violating the state constitutional right to jury trial; Missouri's did the same in Watts v. Lester E. Cox Medical Centers (Mo. 2012); Florida's supreme court invalidated its personal injury medical malpractice cap in North Broward Hospital District v. Kalitan (Fla. 2017). Other states have upheld theirs. The map is genuinely unsettled, and it changes. Verify current law before relying on any figure.
[ ] Note that cap figures move. California's MICRA cap (Cal. Civ. Code § 3333.2), long fixed at $250,000, was amended in 2022 to a materially higher amount that escalates annually. Never quote a cap number from memory or from an older article — pull the current statute.
[ ] Determine whether the jury is told about the cap (almost always no) and whether the reduction is applied by the court post-verdict.
[ ] Develop the noneconomic case with evidence, not adjectives: day-in-the-life video, before-and-after witnesses, a spouse who describes the marriage that ended in a different form.

Why it matters, and the traps. A cap can cut the value of a catastrophic case in half, and a lawyer who prices the case without checking it will make a settlement recommendation that is simply wrong. But the more dangerous error runs the other way: assuming a cap applies when it has been struck down, or when it reaches only malpractice claims and your case is an auto crash. Read the statute, then check whether it has survived constitutional challenge in the last five years. Delia's case, in a state with a general noneconomic cap, is worth vastly less than the same case one state over.

Phase 9 — Punitive damages: is the conduct bad enough?

[ ] Identify your state's standard: gross negligence, recklessness, willful and wanton conduct, malice, or conscious disregard. The verbal formulations differ and the differences matter.
[ ] Identify the burden of proof — most states require clear and convincing evidence.
[ ] Check for a statutory cap, a ratio limit, or a split-recovery statute diverting a share to the state.
[ ] Check whether your state requires bifurcation, or a pretrial showing before punitive discovery (net worth) is permitted.
[ ] Confirm whether punitive damages are insurable in your state — in many, they are not, which changes the collection analysis entirely.
[ ] Apply the federal due process guideposts: reprehensibility, the ratio of punitive to compensatory damages, and comparable civil penalties (BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)); the Court's guidance that few awards exceeding a single-digit ratio will satisfy due process (State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003)); and the rule that a jury may not punish for harm to nonparties (Philip Morris USA v. Williams, 549 U.S. 346 (2007)).

Why it matters, and the traps. Punitive damages are the leverage that moves a corporate defendant from policy limits to real money — but only if the conduct actually supports them. If discovery shows Cardinal Freight knew its driver had two prior hours-of-service violations and dispatched him anyway on a schedule that could not be run legally, that is a punitive case. If it shows a tired driver on a normal day, it is not, and pleading punitive damages anyway costs you credibility with the judge and gives the defense a motion to win. The trap that surprises plaintiffs' lawyers: winning punitive damages against an uninsured corporation can be worse than useless — it produces a headline verdict, an uncollectible judgment, and a bankruptcy petition.

Phase 10 — FIND THE MONEY

[ ] Identify every liability policy: the driver's personal auto, the employer's commercial auto, the employer's general liability, and any umbrella or excess layers.
[ ] For an interstate motor carrier, check the federal financial-responsibility minimums in the schedule at 49 C.F.R. § 387.9 — long set at $750,000 for general freight, with higher levels for hazardous materials. This schedule has been the subject of repeated rulemaking and legislative proposals to raise it; read the current regulation rather than relying on the figure quoted here. Then look for the MCS-90 endorsement (49 C.F.R. § 387.15), which obligates the insurer to satisfy a judgment even where a policy exclusion would otherwise apply — and note that it operates as a surety-like safety net for the public, not as a grant of coverage to the insured, with a right of reimbursement back against the carrier.
[ ] Send a policy-limits disclosure demand where your state's statute permits one; many states compel disclosure of limits pre-suit.
[ ] Identify your client's own coverages: med-pay/PIP, and critically, UM/UIM. Read whether your state permits stacking across vehicles or policies.
[ ] Protect the UIM claim. Most UIM policies require the insurer's written consent before the client settles with and releases the tortfeasor; settling without consent can forfeit the UIM claim entirely. Send the consent-to-settle letter and get the written waiver of subrogation before you sign anything.
[ ] Assess solvency of any uninsured or underinsured defendant: assets, real property, corporate structure, and whether a judgment is realistically collectible.
[ ] Evaluate a potential bad faith claim if the insurer refuses a reasonable within-limits demand and exposes its insured to an excess verdict — the mechanics vary by state but this is often where the real money is.
[ ] Confirm the public entity's caps: many states cap recovery against a governmental defendant at a statutory figure regardless of the verdict.

Why it matters, and the traps. Insurance is regulated at the state level, and almost everything in this phase — whether UM/UIM coverage is mandatory or waivable, whether policies may be stacked, whether pre-suit limits disclosure is compelled, what a carrier must do to avoid bad-faith exposure, and what a public entity's damages cap is — is set by your state's insurance code and case law. Do not carry a rule across a state line. That said, this phase, not the liability phase, is where cases are actually won and lost. Delia's driver carries a $50,000 personal policy. Cardinal Freight carries $1,000,000 in commercial auto and a $5,000,000 umbrella. The vehicle manufacturer is a solvent public company. The county's liability is capped by statute. That is the map that determines everything: which defendants matter, which theories are worth developing, and what a settlement is worth. The classic malpractice trap sits in the fifth item — a lawyer who settles with the tortfeasor for policy limits without first obtaining the UIM carrier's written consent can extinguish a seven-figure UIM claim with a signature. For coverage architecture, exclusions, excess layers, and the duties owed to an insured, see Insurance Coverage Law: A Comprehensive Guide for Policyholders and Tendering a Claim and Preserving Coverage: A Policyholder's Checklist.

Phase 11 — Liens and subrogation: the money that leaves before the client sees it

[ ] Identify every payer: health insurer, ERISA plan, Medicare, Medicaid, TRICARE/VA, workers' compensation, hospital and provider liens, med-pay/PIP subrogation, and letters of protection.
[ ] Classify the health plan. Is it a self-funded ERISA plan or an insured plan? This is the pivotal question. Under FMC Corp. v. Holliday, 498 U.S. 52 (1990), ERISA's deemer clause shields self-funded plans from state insurance regulation — meaning state anti-subrogation and made-whole statutes generally do not protect your client from a self-funded plan. An insured plan is subject to those state laws.
[ ] Get the plan document, not the summary. Read the reimbursement clause.
[ ] Apply the ERISA case law: a plan may enforce an equitable lien by agreement against identifiable settlement funds (Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006)); a plan generally may not obtain equitable relief against the beneficiary's general assets once the settlement fund has been dissipated (Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 577 U.S. 136 (2016)); and the plan's written terms govern — the common-fund doctrine applies as a default gap-filler only where the plan is silent on attorney's fees (US Airways, Inc. v. McCutchen, 569 U.S. 88 (2013)). See also ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), and Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002).
[ ] Medicare. The Medicare Secondary Payer Act (42 U.S.C. § 1395y(b)) makes Medicare a secondary payer and creates a right of recovery for conditional payments, with a private cause of action carrying double damages (42 U.S.C. § 1395y(b)(3)(A)). Request the conditional payment letter early, audit it line by line for unrelated charges, and dispute what does not belong. Mandatory insurer reporting obligations mean CMS will learn of the settlement whether you tell it or not.
[ ] Consider whether Medicare's future interests require a set-aside. Note honestly: CMS has a formal review process for workers' compensation set-asides; it has no comparable mandatory review process for liability set-asides. Practice varies, and reasonable lawyers disagree. Document your reasoning either way.
[ ] Medicaid. A state Medicaid agency may assert a lien against the portion of a settlement allocated to medical care — and under Gallardo v. Marstiller, 596 U.S. 289 (2022), that reaches payment for both past and future medical care, not past care alone. Compare Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006), which held the agency may not reach the portion allocated to non-medical damages.
[ ] Negotiate every lien in writing, and do it before the mediation, not after. Get final numbers and reduction agreements.
[ ] Run the net-to-client calculation before you recommend any settlement.

Why it matters, and the traps. This is where personal injury cases quietly fail their clients. Delia's medical bills were paid by Ironvale's self-funded ERISA plan, which asserts a $287,000 reimbursement lien with a plan document that expressly disclaims the common-fund doctrine and the made-whole rule. Under McCutchen, those terms control. Suppose the case settles for $600,000. Fee at one third is $200,000; costs are $45,000; the ERISA lien takes $287,000. Delia — who has a fractured neck and a brain injury — receives $68,000. A settlement she would have accepted enthusiastically in the abstract is, in reality, a catastrophe. The lawyer who did not model this before mediation is going to have a very hard conversation. Do the arithmetic first, negotiate the lien down first, and never quote a client a gross number.

Phase 12 — Venue, jury climate, and case comparables

[ ] Determine every proper venue and evaluate the differences among them: jury pools, verdict history, judicial temperament, and time to trial.
[ ] Assess removal exposure — will a diverse corporate defendant remove to federal court, and does that help or hurt you?
[ ] Pull comparable verdicts and settlements from the actual venue, filtered by injury type and liability posture. County-level data, not statewide averages.
[ ] Consider the effect of local tort-reform statutes, jury instructions, and any cap.
[ ] Assess the client as a witness in that jury pool.

Why it matters, and the traps. The identical case — same injuries, same liability, same defendant — is worth wildly different amounts in an urban county and a rural one an hour away. Venue is not a formality; it is a valuation input. The trap is anchoring on national verdict-reporter averages, which are skewed by outliers and by the fact that defense verdicts are systematically underreported. Use venue-specific comparables, and discount for the fact that the reported number is the verdict, not the amount ultimately paid after remittitur, appeal, and a post-trial settlement.

Phase 13 — Experts you will need

[ ] Accident reconstruction — speed, delta-V, avoidability, sight lines.
[ ] Trucking/safety expert — FMCSR compliance, hours of service, hiring and supervision standards.
[ ] Biomechanics — mechanism and causation of injury; often the defense's sharpest weapon on "low-speed" impacts.
[ ] Treating physicians and retained medical experts — causation, permanency, future care.
[ ] Neuropsychologist for TBI, with validity testing built in.
[ ] Vocational rehabilitation expert and forensic economist — lost earning capacity, present value.
[ ] Life care planner — the future medical cost model.
[ ] Product/design engineer if there is a crashworthiness claim.
[ ] Vet every expert for Daubert durability: qualifications, methodology, error rate, and prior exclusions. Under Fed. R. Evid. 702 as amended effective December 1, 2023, the proponent must demonstrate admissibility by a preponderance, and the opinion must reflect a reliable application of the methodology to the facts — courts are applying the rule more rigorously than the pre-amendment practice of "let it go to weight."
[ ] Confirm your state's expert rule: not every state follows Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). A meaningful minority still applies Frye.

Why it matters, and the traps. Every large number in a personal injury case is spoken by an expert, which means every large number is exposed to exclusion. Hire experts who can survive a motion, not experts who will say what you want. For the mechanics of attacking — and defending — expert opinions, see Challenging an Expert Under Daubert and Rule 702: A Practical Checklist and Preparing to Take a Deposition: A Practical Checklist.

Phase 14 — The settle-or-sue decision and the demand package

[ ] Build the valuation: (special damages + noneconomic range) × (probability of a liability verdict) × (1 − comparative fault percentage), then subtract fees, costs, and negotiated lien amounts. Present the client with the net figure.
[ ] Compare against the realistic collectible ceiling identified in Phase 10.
[ ] Assemble the demand package: liability narrative, photographs, the medical chronology, itemized specials, the life care plan, the economist's report, a day-in-the-life video where warranted, and the lien picture.
[ ] Make a time-limited, within-limits demand where your state's bad-faith law makes that meaningful. This is the move that converts a $1,000,000 policy into a $5,000,000 exposure if the carrier refuses unreasonably.
[ ] Choose the forum for resolution — direct negotiation, mediation, or suit.
[ ] If filing, confirm jurisdiction, venue, and the pleading standard, and draft the complaint to survive the motion you know is coming.
[ ] Confirm the client understands, in writing, the gross recovery, the fee, the costs, every lien, and the net.

Why it matters, and the traps. The settle-or-sue decision is an arithmetic problem that lawyers routinely treat as an emotional one. Delia's case, in a modified comparative state with a large ERISA lien, may be worth more as a filed case against Cardinal Freight and the manufacturer — because filing unlocks the discovery that makes the punitive claim real, which is what makes the umbrella carrier pay, which is what makes the lien negotiation possible. Or it may be worth settling now, because a 51% finding is a live risk and the client cannot survive two more years without money. Both can be right. What is never right is making that call without having run Phases 10 and 11. For the demand itself, see Writing an Effective Demand Letter: A Practical Checklist; for the choice among litigation, arbitration, and mediation, see Choosing a Dispute-Resolution Forum: Litigation, Arbitration, and Mediation Compared; and if you file, Drafting a Federal Civil Complaint: A Practical Checklist and The Civil Pretrial Toolkit: From Pleadings to Summary Judgment carry the case forward.

Common mistakes to avoid

Calendaring only the limitations period and missing the notice of claim. The public-entity clock is short, it is often jurisdictional, and it does not care that you did not realize a city was involved.
Suing only the obvious defendant. The driver has $50,000. The carrier, the manufacturer, and the county have the rest.
Assuming your state's fault regime. In a contributory-negligence jurisdiction, a 1% finding is a zero. Know before you take the case.
Sending the spoliation letter late. Records the FMCSRs require a carrier to keep for six months are gone in month seven, lawfully.
Quoting a damage cap from memory. Caps are amended, indexed, and struck down. Pull the current statute and check whether it survived constitutional review.
Ignoring liens until mediation day. The ERISA lien is not a footnote; it is a party to the settlement, and under McCutchen the plan document may leave you no equitable arguments at all.
Settling with the tortfeasor without the UIM carrier's written consent. This is a malpractice claim waiting to be filed against you.
Building a life care plan with soft line items. One indefensible entry poisons the credibility of every defensible one.
Pleading punitive damages reflexively. If the facts do not support clear and convincing evidence of conscious disregard, the claim costs you more than it can gain.
Quoting the client a gross number. Clients hear the first figure you say. Say the net.
Over-claiming causation. Conceding the pre-existing degenerative disc buys you the credibility to win the TBI.
Valuing the case on national averages. Venue is a valuation input, not a formality.

The consolidated evaluation checklist

[ ] Statute of limitations calendared for every theory and defendant; repose checked; tolling checked.
[ ] Public-entity notice-of-claim deadline identified and calendared, or affirmatively ruled out.
[ ] Client interviewed; records, video, and witnesses secured before they disappear.
[ ] Every potential defendant identified: driver, employer, manufacturer, premises owner, public entity.
[ ] Every theory identified: negligence, vicarious liability, direct corporate negligence, negligence per se, product defect, derivative claims.
[ ] State fault regime confirmed (pure comparative / modified 50% or 51% / contributory) and comparative exposure quantified.
[ ] Joint-and-several vs. several-only liability and nonparty apportionment confirmed.
[ ] Spoliation letters sent; ELD, ECM, driver file, and vehicles preserved; own-side litigation hold issued.
[ ] Complete medical records obtained, including pre-incident; causation and permanency opinions secured.
[ ] Economic damages modeled: past medicals (billed vs. paid), lost earnings, earning capacity, life care plan, present value.
[ ] Noneconomic damages developed; current cap statute pulled and its constitutional status verified.
[ ] Punitive standard, burden, insurability, and due process ratio assessed.
[ ] All insurance identified: liability, umbrella/excess, MCS-90, med-pay/PIP, UM/UIM (and stacking).
[ ] UIM consent-to-settle obtained before any release is signed.
[ ] Defendant solvency and judgment collectibility assessed; public-entity caps checked.
[ ] Every lien identified, plan documents pulled, ERISA plan classified self-funded vs. insured, Medicare conditional payments audited, Medicaid allocation analyzed.
[ ] Net-to-client calculated and communicated in writing.
[ ] Venue selected; comparables pulled from that venue.
[ ] Expert team retained and vetted for Rule 702 durability.
[ ] Demand package assembled; time-limited within-limits demand considered.
[ ] Settle-or-sue decision made on the arithmetic, and documented.

Primary Authority

A note on how to use this list. The federal materials below are stable and may be cited as stated. The state materials are illustrative only: they show what the relevant statute looks like, not what the law is in your jurisdiction. Nothing in this section states a nationwide tort, products liability, or insurance rule, because none exists. Every figure — caps, notice periods, financial-responsibility minimums, retention periods — must be verified against the current text before you rely on it.

Federal statutes and regulations

Medicare Secondary Payer Act, 42 U.S.C. § 1395y(b) (Medicare as secondary payer; conditional payment recovery; private cause of action with double damages, § 1395y(b)(3)(A))
Employee Retirement Income Security Act § 502(a)(3), 29 U.S.C. § 1132(a)(3) (equitable relief; plan reimbursement)
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2675(a), 2680 (administrative presentment; two-year claim period; six months to sue after denial; exceptions)
Graves Amendment, 49 U.S.C. § 30106 (bar on vicarious liability of vehicle lessors and rental companies)
Federal Motor Carrier Safety Regulations: 49 C.F.R. Part 395 (hours of service; § 395.8(k)(1), six-month record retention); 49 C.F.R. § 396.3 (inspection, repair, and maintenance); 49 C.F.R. § 387.9 (minimum levels of financial responsibility); 49 C.F.R. § 387.15 (MCS-90 endorsement)
Fed. R. Civ. P. 26(a)(2) (expert disclosures); Fed. R. Civ. P. 35 (physical and mental examinations); Fed. R. Civ. P. 37(e) (failure to preserve ESI)
Fed. R. Evid. 702 (as amended effective December 1, 2023)

Cases

US Airways, Inc. v. McCutchen, 569 U.S. 88 (2013) (ERISA plan's written terms govern reimbursement; common-fund doctrine applies only as a gap-filler)
Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 577 U.S. 136 (2016) (no equitable relief against general assets after the settlement fund is dissipated)
Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356 (2006) (equitable lien by agreement)
Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002) (limits of § 502(a)(3) equitable relief)
FMC Corp. v. Holliday, 498 U.S. 52 (1990) (ERISA deemer clause; self-funded plans escape state insurance regulation)
Gallardo v. Marstiller, 596 U.S. 289 (2022) (Medicaid may reach settlement funds allocated to future as well as past medical care)
Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268 (2006) (Medicaid may not reach the non-medical portion of a settlement)
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003); Philip Morris USA v. Williams, 549 U.S. 346 (2007) (due process limits on punitive damages)
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (expert admissibility in federal court)
United States v. Kubrick, 444 U.S. 111 (1979) (FTCA accrual: knowledge of injury and its cause)
Li v. Yellow Cab Co., 13 Cal. 3d 804 (1975) (judicial adoption of pure comparative fault)
State constitutional challenges to damage caps — Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt (Ga. 2010); Watts v. Lester E. Cox Medical Centers (Mo. 2012); North Broward Hospital District v. Kalitan (Fla. 2017) — each striking a noneconomic damages cap under the respective state constitution. Other states have upheld their caps; verify current law in your jurisdiction.

Representative state statutes (illustrative only — confirm your own)

N.Y. Gen. Mun. Law § 50-e (90-day notice of claim)
Cal. Gov't Code §§ 910, 911.2, 945.4 (six-month claim presentation; presentment as a condition of suit)
Cal. Civ. Code § 3333.2 (MICRA noneconomic cap, amended in 2022 to escalating figures — pull the current text)

Secondary sources

Restatement (Third) of Torts: Liability for Physical and Emotional Harm (duty, negligence, factual cause, scope of liability)
Restatement (Third) of Torts: Apportionment of Liability (comparative responsibility; joint and several liability)
Restatement (Third) of Torts: Products Liability § 2 (manufacturing, design, and warning defects)
Restatement (Second) of Torts § 461 (eggshell plaintiff); § 920A(2) (collateral source rule)
Dobbs, Hayden & Bublick, The Law of Torts

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This checklist is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Laws vary by state and change over time; verify current requirements and consult qualified counsel before acting.