Most civil cases settle before trial. That does not mean litigation was unnecessary. In many disputed insurance cases, litigation is the process that creates the conditions in which settlement becomes possible.
An insurance company may deny responsibility, assert contributory negligence, dispute medical causation, challenge coverage, question the extent of an injury, or value a claim below what the evidence appears to support.
The first response is not automatically litigation.
I investigate the claim. I identify what the insurance company is disputing. I evaluate the available evidence, the applicable law, potential defenses, damages, insurance coverage, and the practical risks of proceeding.
When that investigation and analysis provide a good-faith factual and legal basis to proceed, I can initiate litigation.
That matters because litigation changes the decision environment.
Discovery can require evidence to be produced. Witnesses can be questioned under oath. Experts may evaluate disputed issues when appropriate. Courts can resolve legal questions. Defense costs continue. Mediation and additional settlement negotiations can occur. Trial preparation makes the consequences of an unresolved dispute increasingly concrete.
And if the parties still cannot resolve the case, a judge or jury can ultimately decide the disputed issues.
The insurance company understands how to resist a claim. I understand how to investigate that resistance, determine whether litigation is justified, initiate litigation when it is, and carry the case through the process necessary to seek a resolution.
Does Litigation Begin With Simply Filing Papers at the Courthouse?
No. Meaningful litigation begins with the lawyering necessary to determine whether there is a supportable case to pursue.
A lawsuit should not be initiated simply because a claimant disagrees with an insurance adjuster.
Before I initiate litigation, my work may include:
- investigating the underlying accident, injury, loss, or insurance dispute;
- identifying the legally responsible parties;
- identifying the applicable insurance coverage;
- reviewing photographs, video, reports, records, statements, correspondence, and other available evidence;
- examining the insurance company’s stated position;
- identifying potential defenses;
- evaluating Maryland contributory negligence when applicable;
- analyzing medical causation and damages in an injury case;
- reviewing policy language and coverage issues in a first-party insurance dispute;
- determining what additional evidence may be available;
- evaluating the potential costs and risks of litigation; and
- determining whether there is a good-faith factual and legal basis to proceed.
That analysis is part of litigation lawyering.
The initiation of litigation is the transition point between investigating and evaluating the claim and invoking the formal judicial process available to resolve it.
| Litigation Stage | What Can Happen | Why It May Affect the Dispute |
|---|---|---|
| Investigation and case evaluation | The facts, evidence, defendants, defenses, damages, coverage, and legal basis for proceeding are analyzed. | Determines whether litigation should be initiated at all. |
| Litigation initiated | The dispute enters the court system against the appropriate party or parties. | An adjudicated result becomes a genuine alternative to voluntary claim negotiations. |
| Written discovery | Relevant information and documents may be formally requested and produced subject to applicable rules. | The evidentiary record can become materially different from the pre-litigation claim file. |
| Depositions | Parties and witnesses can be questioned under oath. | Competing factual accounts and credibility can be tested. |
| Expert development | Medical, vocational, engineering, reconstruction, valuation, or other technical issues may be evaluated when appropriate. | Disputed causation, damages, or technical questions may become better defined. |
| Motions and court rulings | Legal issues may be presented to a judge. | A ruling may materially change one or both sides’ evaluation of the case. |
| Defense expense | Continuing litigation ordinarily requires additional lawyer time, discovery work, experts, depositions, and preparation. | The cost of continuing becomes another component of the settlement analysis. |
| Mediation and negotiation | The parties can negotiate using information developed through litigation. | A dispute that could not be resolved pre-litigation may be evaluated differently after evidence and risk have developed. |
| Trial preparation | Witnesses, exhibits, experts, motions, and trial strategy must be prepared. | The possibility of an adjudicated outcome becomes increasingly concrete. |
| Trial | The disputed issues are presented for decision. | The insurance company’s internal evaluation no longer determines the outcome. |
What Happens When I Initiate Litigation?
The dispute moves from an insurance company’s voluntary claim process into a judicial process with procedures, deadlines, evidence rules, discovery, motions, and the possibility of trial.
That transition can be significant.
Before litigation, the insurance company may control its own claim evaluation.
It can decide:
We deny responsibility.
We believe your conduct contributed to the accident.
We do not believe this incident caused all of your injuries.
We believe your treatment was excessive.
We do not accept your claimed lost wages.
We believe the policy excludes this loss.
We value the claim at this amount.
Those may be genuine positions based on the insurer’s evaluation of the evidence.
But an insurance company’s internal claim decision is not automatically a judicial determination of the disputed facts.
When there is a supportable basis to contest that position, litigation creates another forum in which the dispute can be tested.
Litigation as Practice, Not Theory
The discussion on this page reflects a process I use in actual litigation. Public Maryland state and federal court records document my involvement in personal injury and insurance disputes in which claims moved beyond the insurance process and into litigation.
Some of those publicly identifiable litigation matters are collected by court and docket number in the Public Litigation Repository.
Why Is Litigation Different From Continuing to Negotiate With an Adjuster?
Because litigation creates procedures that ordinary claim negotiations do not.
An adjuster can request information and negotiate.
Litigation can do considerably more.
That entire progression—not simply the act of commencing the case—is the litigation process.
Why Do Most Cases Settle Before Trial?
Because settlement allows both sides to exchange the uncertainty, expense, and risk of continued litigation for an agreed resolution.
A case may look different after months of litigation than it did when an adjuster first reviewed the claim.
Discovery may uncover additional evidence.
A witness may give important sworn testimony.
A claimed defense may become stronger or weaker.
Medical evidence may clarify whether an accident caused a particular condition.
Future medical consequences may become better defined.
Lost income may become better documented.
An expert may address an issue that was previously uncertain.
A judge may rule on an important legal question.
Each side can continually reassess the case as this occurs.
That reassessment can produce settlement.
The fact that a case settles before trial therefore does not establish that litigation was unnecessary.
Sometimes the opposite is true.
The dispute may resolve because litigation has done precisely what litigation is designed to do: develop evidence, narrow disputed issues, expose risk, create judicial decision points, and move the case toward an ultimate determination.
A Lawsuit Is Not the Failure of Settlement. Sometimes Litigation Is the Machinery of Settlement.
The pressure point does not begin with a piece of paper at the courthouse.
It begins with the investigation, factual analysis, legal judgment, and case development necessary to determine whether there is a good-faith basis to proceed.
When there is, I can initiate litigation and move the dispute into a process where evidence can be developed, witnesses can be questioned under oath, defenses can be tested, courts can make rulings, litigation expenses continue, mediation can occur, and trial becomes a genuine alternative to settlement.
Most cases settle before trial. But they do not necessarily settle before litigation does its work.
That is the pressure point: the credible ability to investigate the dispute, initiate supported litigation, develop the case, negotiate from within that process, and continue toward a judge or jury if an acceptable resolution cannot be reached.
Can Litigation Change a Complete Insurance Denial?
It can create the process for challenging the denial. It does not guarantee that the denial will change.
Suppose a liability insurer takes the position:
Our insured was not responsible. We will pay nothing.
That may be the end of the insurer’s voluntary claim process.
It does not necessarily answer whether a viable legal claim exists.
I can investigate:
- how the accident occurred;
- what each person says happened;
- whether independent witnesses exist;
- whether photographs or video are available;
- whether physical evidence supports one version of events;
- whether a traffic rule or other legal duty is relevant;
- whether contributory negligence presents a genuine problem;
- and whether the available evidence provides a good-faith basis to proceed.
If it does, litigation can be initiated against the appropriate responsible party.
Discovery may then produce evidence that was not available during the insurer’s initial investigation.
The insurer may maintain its denial.
It may reassess the case.
It may offer settlement.
The parties may mediate.
Or the dispute may proceed to trial.
The important point is that the insurance company’s pre-litigation answer is not necessarily the final available decision-making process.
Can Litigation Change a Low Insurance Offer?
Yes, because the evidence and risk being evaluated can change during litigation. But a higher result is never guaranteed.
Assume an insurer believes an injury claim is worth $25,000.
That is the insurer’s evaluation.
It is not automatically the value a judge or jury would assign to the evidence.
During litigation, additional information may develop concerning:
- liability;
- medical causation;
- treatment;
- prior medical conditions;
- permanent impairment;
- future medical needs;
- lost earnings;
- diminished earning capacity;
- functional loss;
- pain and suffering;
- witness credibility; and
- available insurance coverage.
The evidence may strengthen the claim.
It may weaken it.
The insurer may increase its offer.
It may not.
A settlement may be reached.
The case may proceed to trial.
Litigation creates opportunity and risk.
That is why I evaluate the evidence and litigation consequences rather than assuming that initiating litigation automatically increases case value.
Read more about what may determine the value of a Baltimore personal injury case.
Why Does Maryland Contributory Negligence Matter So Much?
Because contributory negligence can be one of the most consequential defenses in a Maryland personal injury case.
An insurer may claim that the injured person:
- failed to keep a proper lookout;
- entered a roadway unsafely;
- failed to yield;
- drove too fast for conditions;
- followed too closely;
- ignored an observable hazard; or
- otherwise contributed to the occurrence.
An adjuster’s assertion does not itself establish the defense.
But the issue must be taken seriously.
The investigation may require photographs, video, witness testimony, physical evidence, roadway evidence, deposition testimony, and other proof.
Litigation then provides procedures through which the evidence supporting or undermining the defense can be developed.
Read more about how contributory negligence can affect a Maryland injury claim.
Why Does Discovery Matter to Settlement?
Because discovery can turn assumptions into evidence—or expose assumptions that the evidence does not support.
Before litigation, the parties often possess different information.
Formal discovery can help answer questions such as:
- What does each witness actually say under oath?
- What records exist?
- What evidence supports the defendant’s version?
- What evidence supports the claimant’s version?
- What medical history is actually relevant?
- What caused the claimed condition?
- What treatment is supported?
- What economic losses can be documented?
- What defenses can actually be supported?
- What evidence is likely to matter at trial?
As those questions are answered, each side can make a better-informed assessment of the case.
Better information changes settlement decisions.
Why Do Litigation Costs Matter?
Because continuing a contested case ordinarily requires additional resources.
Depending on the case, litigation can involve:
- attorney time;
- court costs;
- service expenses;
- records;
- depositions;
- transcripts;
- investigation;
- expert expenses;
- demonstrative evidence;
- mediation;
- motions;
- and trial preparation.
That does not mean an insurance company will pay simply because litigation costs money.
An insurer may conclude that continuing to defend the case is economically and legally justified.
A claimant likewise has to consider the costs and risks of continuing.
But litigation expense becomes one part of the decision:
Is an agreed resolution preferable to the expense and uncertainty of continuing toward trial?
That question becomes increasingly significant as litigation progresses.
Why Does Trial Exposure Matter Even When the Case Settles?
Because the credible path to trial is part of what gives the litigation process significance before trial occurs.
Settlement is voluntary.
Trial is adjudicative.
In settlement, the parties agree.
At trial, the disputed issues are submitted for decision.
The claimant faces risks.
The defense faces risks.
A plaintiff may fail to establish responsibility, causation, damages, or another necessary element.
A contributory-negligence defense may succeed.
Evidence may not be admitted.
A witness may perform differently than expected.
Damages may be less than anticipated.
The defense faces the corresponding uncertainty that its positions may be rejected and that the factfinder may value the proven damages above the insurer’s prior evaluation.
Settlement allows both sides to replace some of that uncertainty with an agreed result.
That is why trial exposure can influence settlement long before anyone enters a courtroom for trial.
What Role Does Mediation Play?
Mediation can give the parties another opportunity to resolve the dispute after litigation has developed the evidence and clarified the risks.
By the time mediation occurs, the case may be materially different from the pre-litigation claim.
Depositions may have occurred.
Documents may have been exchanged.
Medical evidence may be developed.
Experts may have evaluated disputed issues.
Motions may have been argued or decided.
The parties may understand their respective risks much better.
A mediator cannot ordinarily force either side to accept a settlement.
But mediation can provide a structured environment in which both sides evaluate whether continuing toward trial is preferable to an agreed resolution.
Read more about mediation in a Maryland personal injury case.
Who Is the Defendant When Insurance Is Really Driving the Dispute?
That depends on the type of claim.
In many third-party personal injury cases, litigation is initiated against the person or entity alleged to be legally responsible for causing the injury.
The liability insurance company may nevertheless be economically central because, subject to the policy and applicable law, it may provide the defense and fund a covered settlement or judgment.
In a first-party insurance dispute, the insurer itself may be the appropriate party against whom litigation is initiated.
The distinction matters.
I therefore do not use “sue the insurance company” as a technically universal description of every personal injury case.
I identify the appropriate parties and initiate litigation in the form supported by the facts, insurance relationship, and applicable law.
Read more about who may be sued after a Maryland car accident.
What Does an Injury Insurance Dispute Attorney Actually Bring to the Process?
The value is not merely knowing how to prepare a complaint. It is knowing how to evaluate, initiate, develop, negotiate, and try a disputed case.
My work may include:
1. Investigating the Claim
I determine what happened, what evidence exists, what additional evidence may be obtainable, who may be legally responsible, and what insurance applies.
2. Identifying the Insurance Company’s Position
I determine whether the resistance concerns:
- responsibility;
- contributory negligence;
- medical causation;
- treatment;
- credibility;
- documentation;
- coverage;
- economic loss;
- future damages; or
- overall value.
3. Evaluating Whether Litigation Is Supported
I assess the factual and legal basis for proceeding, potential defenses, damages, available coverage, litigation expense, evidentiary problems, and trial risk.
4. Initiating Litigation When Appropriate
When there is a good-faith basis to proceed, I initiate litigation against the insurance company when it is the proper defendant or against the appropriate responsible parties when the insurance dispute arises from third-party liability.
5. Developing the Evidence
I use the litigation process to obtain and develop evidence through the procedures appropriate to the case.
6. Testing the Defense
The insurer’s position can be tested against documents, testimony, experts where appropriate, governing law, and the evidence developed during litigation.
7. Negotiating Within the Litigation Process
Settlement discussions can continue as the evidence and risk analysis develop.
8. Preparing for Trial
If the dispute does not resolve, the case must be prepared for adjudication.
9. Presenting the Case for Decision
When trial is necessary, the disputed issues can be submitted to the appropriate judge or jury.
That is litigation.
And that is why the value of litigation cannot be measured simply by counting how many cases ultimately produce verdicts.
What Is the Connection Between Being Hurt and Eventually Receiving a Settlement or Verdict?
There is no automatic connection. The connection has to be built through evidence, legal analysis, and, when necessary, litigation.
An accident can cause an injury.
Property damage can create an insurance claim.
Neither event automatically produces compensation.
The dispute may instead develop like this:
My role is concentrated in the critical middle of that sequence.
I investigate what happened.
I identify the insurance company’s position.
I determine what evidence may challenge or support that position.
I evaluate whether there is a legally and factually supportable path forward.
When there is, I initiate and conduct the litigation necessary to pursue the claim.
The outcome may be a negotiated settlement.
It may be a favorable verdict.
It may be an unfavorable result.
No outcome can be promised.
But when an insurance company’s position cannot be resolved voluntarily, litigation provides the mechanism for taking the dispute somewhere else.
Why Does This Matter When an Injury Has Changed Someone’s Life?
Because the insurance dispute may be happening while the injured person is dealing with consequences that are immediate, serious, and potentially permanent.
A significant injury may affect:
- whether someone can return to the same job;
- whether they can work the same hours;
- whether future surgery will be necessary;
- whether chronic pain will continue;
- whether they can care for children;
- whether they can drive;
- whether they can climb stairs;
- whether they can maintain their home;
- whether they can participate in activities that previously defined their life;
- whether their family must assume additional responsibilities;
- and whether they will remain financially independent.
These are not abstract litigation concepts.
They are the consequences that evidence concerning damages is intended to explain.
An insurer may have one assessment of those consequences.
The injured person may have another.
The question is what the evidence can support.
That is part of the work I do before and during litigation.
What If I Cannot Afford to Hire a Lawyer to Litigate My Injury Claim?
I offer a complimentary case review, analysis, and strategy session for potential matters, and qualifying Maryland personal injury cases may be eligible for my Reduced Attorney Fee Program.
For qualifying personal injury cases, the program currently provides a 30% attorney fee for a qualifying pre-litigation recovery and 35% after litigation is initiated, subject to the written representation agreement.
Attorney fees and case expenses are separate issues. Eligibility, percentages, expenses, and other terms are controlled by the written representation agreement.
No recovery is guaranteed.
Review the Reduced Attorney Fee Program.
When Should an Insurance Dispute Be Evaluated for Litigation?
When the insurer’s position materially affects a supported claim and ordinary claim negotiations are not producing an acceptable resolution, the litigation alternatives may need to be evaluated.
Examples can include:
- a liability denial;
- a contributory-negligence allegation;
- a causation dispute;
- a preexisting-condition argument;
- a dispute over medical treatment;
- a refusal to recognize wage loss;
- a dispute over future medical expenses;
- a coverage denial;
- a significant underpayment;
- a refusal to make an offer; or
- an apparent impasse over the value of a serious injury.
The fact that an insurer says no does not establish that litigation should be initiated.
The fact that an injured person disagrees with the insurer does not establish it either.
The question is whether investigation, evidence, applicable law, damages, insurance coverage, and litigation risk support proceeding.
That is the decision I evaluate.
What Is My Approach to Insurance Resistance?
I identify the insurance company’s position, determine what evidence may defeat or weaken it—or positively affect the value of the claim—and build the factual, medical, and legal response necessary to challenge that position through the claim process and, when appropriate, litigation.
The process begins before litigation.
It begins with judgment.
What happened?
What can be proved?
What is the insurance company saying?
Why does that position matter?
What defenses exist?
What evidence can change the analysis?
Is there a good-faith basis to proceed?
If the answer supports litigation, I initiate it.
Then I conduct it.
The insurance company understands how to resist a claim. I understand how to challenge that resistance.
Review my broader Baltimore personal injury practice and Baltimore car accident litigation practice.
Injury or Property Loss
↓
Insurance Claim
↓
Insurance Position and Resistance:
Denial/Delay/Devaulation
↓
Investigation and Legal Evaluation
↓
Good-Faith Basis to Proceed
↓
Kirk: Litigation Initiated
↓
Evidence + Discovery + Motions + Negotiation + Mediation + Trial Preparation
↓
Settlement OR Adjudication
Has the Insurance Company’s Position Become the Dispute?
If you have a significant Maryland personal injury or insurance dispute and the insurance company has denied responsibility, raised a serious defense, disputed causation, refused to pay, or valued the claim below what you believe the evidence supports, I can evaluate what comes next.
I investigate the claim, analyze the insurance company’s position, determine what evidence matters, and evaluate whether there is a good-faith basis to initiate litigation.
If litigation is appropriate, I know how to initiate it, develop the case, negotiate within that process, and prepare the disputed issues for decision when trial becomes necessary.
I offer a complimentary case review, analysis, and strategy session for potential matters.
Call Eric T. Kirk: 410-591-2835
Frequently Asked Questions About Litigation and Insurance Settlements
Does initiating litigation force an insurance company to settle?
No. Litigation does not compel an insurer or defendant to agree to a settlement. It creates a judicial process through which evidence can be developed and the unresolved dispute can ultimately proceed toward adjudication.
Why can litigation cause an insurer to reconsider its position?
Because the insurer may be evaluating a different evidentiary and economic situation after litigation begins. Discovery, sworn testimony, experts where appropriate, court rulings, litigation expenses, mediation, and approaching trial can all affect the assessment of risk.
Do most civil cases settle before trial?
Yes. Most civil cases resolve without a completed trial, and settlement is a principal means of resolution. The important point is that settlement may occur after litigation has already developed evidence, clarified risk, and changed the parties’ assessments.
If a case settles, was litigation unnecessary?
Not necessarily. A case may settle precisely because discovery, testimony, motions, mediation, trial preparation, and increasing adjudication risk changed the parties’ evaluation of the dispute.
Does litigation begin when a complaint is submitted to the court?
The formal court case begins through the applicable commencement procedure, but the lawyer’s litigation work should begin earlier. Investigation, evidence review, identification of responsible parties, analysis of defenses, and evaluation of the factual and legal basis for proceeding precede the decision to initiate supported litigation.
Can litigation turn a zero offer into a settlement?
It can, but no result is guaranteed. A liability denial may be reassessed after evidence is developed, or the insurer may continue defending the case through trial.
Can litigation produce more than the pre-litigation offer?
Yes, that is possible. It can also produce the same amount, a lower amount, or no recovery. Litigation creates both opportunity and risk.
Why does trial matter if most cases settle?
Because the credible possibility of adjudication is part of what makes litigation meaningful. Settlement remains voluntary, but an unresolved case can continue toward a forum in which the disputed issues are decided.
Who is sued in a personal injury insurance dispute?
Usually the legally responsible person or entity is the defendant in a third-party negligence case. The liability insurer may nevertheless provide the defense and fund a covered settlement or judgment. In an appropriate first-party dispute, the insurer itself may be the defendant.
What does an Injury Insurance Dispute Attorney contribute?
Investigation, legal judgment, litigation initiation, evidence development, defense analysis, negotiation, mediation, trial preparation, and trial capability. The objective is to move a supportable dispute through the process necessary to seek an appropriate resolution.
The Decision Point
The insurance company’s position is not the only question.
The next question is whether the evidence and law provide a supportable basis to challenge that position through litigation.
I investigate the claim, identify the insurer’s position, evaluate the evidence and defenses, and determine whether there is a good-faith basis to proceed.
If there is, I can initiate litigation and carry the dispute through the stages that may produce settlement—or, when settlement does not occur, toward adjudication.
That analysis is available through my complimentary case review, analysis, and strategy session.
The insurance company understands how to resist a claim. I understand how to challenge that resistance.
Litigation Is the Pathway to Overcome Insurance Resistance
An insurance company may deny responsibility, raise contributory negligence, dispute medical causation, challenge coverage, question damages, or refuse to increase what it is willing to pay.
When that resistance cannot be resolved through the insurance claim process, litigation provides the pathway for challenging it.
My work begins before litigation is initiated. I investigate the claim
When Insurance Resistance Becomes the Dispute, Litigation May Be the Path Forward
An insurance company can maintain its position during the claim process. That does not necessarily end the inquiry. I investigate the facts, identify the insurance company’s position, evaluate the evidence and applicable defenses, and determine whether there is a good-faith basis to proceed.
When there is, I initiate litigation and conduct the case through the process that can develop the evidence, test the defenses, create meaningful settlement opportunities, and, when necessary, place the disputed issues before a judge or jury.
Litigation is the pathway to overcome insurance resistance. Litigation is what I do for a living.
I offer a complimentary case review, analysis, and strategy session for potential Maryland personal injury and insurance-dispute matters.
Call Eric T. Kirk: 410-591-2835
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- Legal Analysis & Case Studies
- Baltimore Insurance Claims Denial Lawyer
For over three decades, I have battled against the nation’s largest insurance companies, always endeavoring to ensure my clients receive the compensation they deserve. As lead counsel in thousands of cases across Maryland, New York, and Florida, I have recovered millions for clients whose claims were wrongfully denied and delayed. Whether denying fair compensation for a personal injury victim or denying benefits to a homeowner, Insurance companies employ policy exclusions, technicalities, and lowball offers to deny and defeat claims. They also hire very good lawyers to fight you in court. So should you. When an insurance company unfairly rejects a claim, I stop them.
