San Diego Pedestrian Accident Lawsuits: Step-by-Step Guide

A pedestrian accident lawsuit is a series of steps that can take a year or more. Much of the work happens on paper and in conference rooms, not in front of a jury. Knowing what each step involves, and what you may be asked to do, can make the process easier to get through.

In short, many pedestrian cases start as an insurance claim and become a lawsuit if the claim does not settle. After a case is filed, you may be asked to answer written questions, give a deposition, attend a medical exam, and take part in mediation. Cases can settle at any point, so not every case reaches each of these steps. If you were seriously hurt while walking, a San Diego pedestrian accident attorney can tell you where your case stands.

Before You File: How a Claim Becomes a Lawsuit

Claim vs. Lawsuit

A claim is a request for payment made to an insurance company outside of court. A lawsuit is a formal case filed in court. Many pedestrian cases begin as a claim against the driver’s insurance. Your attorney notifies the insurer, gathers the police report and your medical records, and works to preserve evidence such as surveillance video. Our guide to the first steps after a crash covers what you can do in the first days.

If the claim settles, there is no lawsuit. If it does not, or if a filing deadline is approaching, your attorney may file suit. Filing does not end settlement talks. It brings the case under the court’s supervision and gives both sides formal tools to gather evidence. The court addresses trial scheduling later, as part of managing the case.

Why Your Lawyer May Wait Before Settling

Doctors and lawyers often talk about maximum medical improvement, or MMI. It is the point when your condition has leveled off and your doctors can describe what the future looks like. Before then, it can be hard to know whether you will need another surgery or whether an injury is permanent. Waiting for a clearer picture can help avoid settling before the full extent of the injury is known.

Waiting to value or settle a claim is different from deciding when to file. The filing deadline does not pause while you are in treatment. If a deadline is approaching, your attorney can file the lawsuit while your treatment continues.

The Demand and the Insurer’s Response

When the medical picture is clearer, your attorney sends the insurer a demand. This is a package that lays out how the crash happened, your injuries and treatment, your financial losses, and the amount requested. The insurer can accept, reject, or make a counteroffer.

Sometimes the driver’s insurance limit is far below the value of the injuries, and no one else shares responsibility. In that situation, a settlement for the policy limit may be the practical result. Your attorney will also look at whether your own auto policy provides coverage, which it can even when you were on foot.

Filing Deadlines and Who You Can Sue

Two Years to Sue a Driver

For an injury claim against a driver, California generally gives you two years from the date of the crash to file a lawsuit. Missing that deadline can end the claim, however strong it is. Some situations can change the deadline, as our guide to filing deadlines explains.

Six Months if a City, County, or Caltrans Is Involved

A public agency may share fault when the design or upkeep of a road or crosswalk played a role in the crash. Before you can sue a public entity, you generally must file a written claim with it within six months of the crash. If the agency gives a proper written notice rejecting the claim, you generally have six months to file suit. That period runs from the date the notice is personally delivered or deposited in the mail, not from the date you receive it. A different deadline can apply if the agency does not send a proper notice.

These cases also involve legal defenses that do not apply to drivers. Our guide to dangerous intersections discusses when a road’s design becomes part of a case.

Naming Everyone Who May Be Responsible

The complaint names the defendants. In a pedestrian case, that may include the driver, the vehicle’s owner, the driver’s employer if the driver was working, or a public agency. Identifying each one early is part of proving fault.

Filing, Service, and the Answer

The lawsuit begins when your attorney files a complaint with the San Diego Superior Court. The complaint describes the crash, the legal claims, and your losses. California law sets out what a complaint must contain.

Each defendant must then be formally served with the complaint. A defendant generally has 30 days after service to respond, often with an answer that admits or denies the allegations and raises defenses. You do not need to go to court for these early steps.

Discovery: What You May Be Asked to Do

Discovery is the stage where each side gathers evidence from the other under court rules. It is often the longest part of a lawsuit. The California courts’ self-help guide to civil discovery gives an overview.

Written Questions and Records

Each side sends written questions, called interrogatories, that must be answered under oath. Each side can also request documents and ask the other to admit or deny specific facts. You will work with your attorney on your answers. Expect requests for medical records, bills, wage records, and photos. The defense may also ask about earlier injuries or medical care involving the same parts of your body.

Your Deposition

A deposition is testimony under oath, given outside of court. The defense attorney asks the questions, and a court reporter records your answers. Your attorney is with you during the deposition and will prepare you for it beforehand.

The defense will ask about how the crash happened and about your injuries. Expect questions about your health before the crash, your medical treatment, lost income, and how the injury has changed your daily life.

In a pedestrian case, fault questions often cover where you were crossing, what the signal showed, and the lighting. You may also be asked what you were wearing and whether you were using a phone. Fault questions connect to California’s rule on comparative negligence, which can reduce a recovery by your share of fault. Answer truthfully, say so when you do not know or remember something, and avoid guessing.

The driver, witnesses, and some of your doctors may also be deposed.

The Defense Medical Exam

The defense can generally have you examined by a doctor it selects. This is often called an “independent medical exam,” but the defense chooses and pays the doctor. California law lets your attorney or a representative attend and audio-record the exam. Describe all of your symptoms honestly and completely. Downplaying your pain can be used later to argue that the injury is minor.

Expert Witnesses

Contested pedestrian cases often involve experts. An accident reconstruction expert can analyze speed, timing, and the vehicle’s path. A human factors expert can address what the driver could see at night or around obstacles. Medical experts can explain your injuries and future care needs. Each side discloses its experts before trial, and the experts may be deposed.

Motions, Mediation, and Settlement

Pretrial Motions

Both sides can ask the judge to rule on issues before trial. Many motions deal with discovery disputes or scheduling. A motion for summary judgment is different. It asks the judge to end the case, or part of it, without a trial because there is no real dispute about the key facts.

Summary judgment can be a turning point in a case against a public agency. Public entities have legal immunities, such as design immunity, that they can raise at this stage. In a case against a driver, fault is often a factual question for the jury to decide.

Mediation

Mediation is a settlement meeting led by a neutral mediator, often a retired judge or an experienced lawyer. It is confidential, and nothing is settled unless both sides agree.

If your case goes to mediation, you will attend with your attorney, in person or by video. The mediator moves between the two sides, passing along offers and discussing the strengths and risks of each side’s case. Your attorney will explain each offer and what it would mean for you. The decision to accept is yours.

If the case does not settle at mediation, talks can continue up to trial. Our guide to settlement versus trial covers how to weigh an offer against the risks of trial.

What Happens After a Settlement

When a case settles, the terms are put in writing. You will sign a release that ends your claims against the settling parties in exchange for payment. If a lawsuit was filed, it is then dismissed.

The settlement payment is generally deposited into your attorney’s trust account. Before funds are distributed, your attorney works to resolve liens. These are repayment claims from sources such as health insurers, medical providers, or Medi-Cal. Case costs and attorney fees are then deducted, and you receive the balance with a written breakdown. That is why the amount you take home differs from the settlement amount, as our compensation guide explains.

If Your Case Goes to Trial

What Happens at Trial

A civil case can be tried by a judge or a jury. A jury trial begins with jury selection. Each side then gives an opening statement. Your side presents its witnesses and evidence first, followed by the defense. After closing arguments, the jury deliberates and returns a verdict. In a California civil case, at least nine of the 12 jurors must agree on the verdict.

If your case is tried, you can expect to testify, and your attorney will prepare you beforehand. Your attorney will also talk with you about which days you need to be in court. A pedestrian trial can last from several days to a few weeks.

After the Verdict

The losing side may file post-trial motions or an appeal, which can add months or more. Once a verdict is final and paid, liens, case costs, and attorney fees are handled the same way as in a settlement.

How Long a Pedestrian Accident Lawsuit Takes

There is no fixed timeline. The main factors are how serious the injuries are, whether fault is disputed, who the defendants are, and the court’s schedule.

Before filing. The claim stage can take months, often while medical treatment continues. Some cases settle at this stage, and no lawsuit is needed. A case against a public agency also has to go through the government claim process before a lawsuit can be filed.

After filing. A case with clear fault may resolve within months of filing. A contested case with serious injuries can take two years or more after filing. A case against a public agency can take longer because of pretrial motions.

What You Can Do While Your Case Is Pending

Keep your medical appointments and follow your doctors’ advice. Report all of your symptoms, including how the injury affects your daily activities. Let your doctors and your lawyer know if anything is making it hard to get care. Be careful with social media, because the defense may review your posts and photos. Gaps in care and social media content can be used to argue that an injury is not serious.

How Hulburt Law Firm Can Help

Hulburt Law Firm represents people seriously injured in pedestrian crashes throughout San Diego County. We also represent families in wrongful death cases. We can review where your case stands, explain the deadlines that apply, and handle each step of the lawsuit with you. We work on a contingency fee, so you pay no attorney fees unless we recover compensation for you.

Call us at (619) 821-0500 or contact us for a free consultation about your pedestrian accident case.