How to File a Motorcycle Accident Lawsuit: A Step-by-Step Guide

!Get medical help and gather evidence in a motorcycle accident

You were injured in a motorcycle accident that wasn’t your fault. Faced with serious injuries, mounting bills, and no way to pay them, the responsible driver’s insurance company won’t bring a fair offer to the table. It’s time to think about a motorcycle injury lawsuit.

Filing a lawsuit of any kind can be a daunting task. We walk you through the process, beginning at the crash scene. What does your lawsuit need to include? Are there special rules you must follow? How does the lawsuit process work, and how long is it likely to take? We’ll answer those questions and more.

In This Article

First Steps: Get Medical Treatment and Gather Evidence

When you’re injured in a motorcycle accident, getting the medical care you need is a critical first step in both your physical recovery and your motorcycle injury case. As soon as you can, turn your attention to gathering the evidence you’ll need to prove your claims.

Why Is It Important to Get Medical Care After a Motorcycle Accident?

In legal terms, your post-accident care does two important things. It:

establishes the nature and extent of your injuries, and
shows that you’ve taken reasonable steps to “mitigate” your damages—to care for, reduce, and minimize your injuries and their impact on your abilities to live and work.

Proving the nature and extent of your injuries. When the other side’s fault is clear, the nature and extent of your injuries will be the “engine,” so to speak, that drives the value of your motorcycle accident claim. Serious, permanent injuries are worth more than minor cuts, bruises, and scrapes that, while painful, tend to heal without long-term effects.

Your medical records play a key role here. Be truthful with your doctors and other providers. Don’t exaggerate or embellish your symptoms, but don’t downplay your pain or limitations, either. Insurance adjusters and defense lawyers will examine your records closely to see whether treatment notes support or contradict things you say.

Mitigating your damages. When you’ve been hurt in an accident, the law requires that you take reasonable steps to mitigate your damages. This means getting needed care, complying with doctors’ orders, returning to work when you’re able, and the like.

Health care providers will chart your progress (or lack of it), noting whether you’ve followed orders, completed treatments, gone to therapy sessions, taken prescribed medications, and more. The other side will focus on any entries suggesting lack of compliance as proof that you’re trying to run up the meter on your damages.

What Evidence Do I Need to Prove My Motorcycle Injury Case?

Evidence gathering begins at the crash scene. When you’ve been hurt, your first priority should be getting medical care. But others—law enforcement and first responders—will start the process right away. Once you hire legal counsel, they’ll immediately begin their own investigation.

Here are some of the most common types of motorcycle injury evidence.

Traffic crash report. The responsible law enforcement agency will prepare this standard report. It documents who was involved, when and where the incident happened, road, traffic, and weather conditions, witness information, and causal or contributing factors.
DUI arrest report. When police suspect that an involved driver was under the influence and an arrest was made, they’ll prepare this report. It explains the arresting officer’s probable cause determination, including field sobriety tests, preliminary breath tests, information about open or empty containers, BAC test results, and more.
Crash scene photos. Depending on the facts, police might take pictures of the accident scene. Whether they do or not, you (or better yet, your lawyer) will take more. Ideally, immediate post-crash photos will show the point of impact, vehicles involved, scuff and skid marks, crash debris, and the final resting place of all vehicles and bodies.
Witness statements. Police will include brief witness statements in the traffic crash report. You or your lawyer should get more detailed statements. When you speak to witnesses, ask if they’ve given statements to others. Also, find out if they know of any other witnesses you’re not aware of.
Surveillance video. Surveillance cameras are ubiquitous. They’re standard equipment for most businesses, and homeowners often install outside or doorbell cameras as well. Do a diligent search for any surveillance footage that recorded what took place at the crash scene.
Medical records and bills. Your records and bills will be critical evidence, as described above. They’ll explain in detail your injuries, symptoms, treatments, pain and suffering, emotional distress, and more. Bills are necessary to quantify your medical and related expenses.
Employment and income records. You’ll want these to document your lost wages or income, along with any employment-related benefits. Get them from your employer’s human resources office. If you’re self employed, your financial books and tax returns will provide the needed information.

Do I Have a Motorcycle Accident Case?

When you’re done gathering evidence, it’s time to sit down with your lawyer and decide whether you have a motorcycle injury case and, if so, whether it’s worth pursuing. That starts with a review of the elements of your claim.

Most Motorcycle Claims Are Based on Negligence Law

Nearly all motorcycle injury cases are based on claims that the responsible driver was negligent. Negligence means a driver didn’t drive as carefully as they should have under the circumstances. These are the elements of a typical negligence claim.

Duty of care. The law requires drivers to exercise reasonable care when they get behind the wheel. Lawyers and judges call these requirements “duties of care.” Here are a few examples. Drivers must drive at a safe speed for traffic, road, and weather conditions. They must focus on the road and not be distracted by a cell phone or the radio. They’re required to keep a careful lookout for oncoming and surrounding traffic and for road hazards.
Breach of the duty of care. When a driver goes too fast for conditions, is distracted by text messages or phone calls, doesn’t keep their eyes on the road, or otherwise isn’t as careful as they should be, they “breach”—fail to meet—a duty of care.
Injuries or property damage. You must prove that you were injured, your property was damaged or destroyed, or both.
Causation. Finally, you have to show that your injuries or property damage were caused by the other driver’s breach of a duty of care.

Other Motorcycle Accident Lawsuit Factors to Consider

To say that you have a claim—meaning you can prove the four negligence elements—doesn’t mean that you should pursue it in court. You and your lawyer should consider other factors, like:

the time (more than a year) and expense (in the tens of thousands) involved, even for a “simple” motorcycle case
whether the responsible driver has insurance or other assets you can look to for a recovery, and
because it forces you to re-live the events of the crash, whether the emotional toll of a lawsuit is worth it.

Four Steps to Filing a Motorcycle Injury Lawsuit

These are the typical steps involved in filing a motorcycle accident lawsuit. In most (but not all) cases, you’ll file in state court in the state where the crash happened. Chances are you want your case in the state’s main trial court, but if your injuries and damages are very minor, you might consider filing in small claims court.

Note, importantly, that this process is governed by a variety of court rules. Specifically, the state’s rules of civil procedure will dictate what your lawsuit papers must (or must not) include, when and how they’re delivered to (“served on”) the party you’re suing, and what happens after the lawsuit begins. You might find your state’s civil procedure rules here. If not, check your state court system website and see if you can find them there.

Step 1: Draft Your Motorcycle Injury Complaint

In most states, the “pleading” (lawsuit document) that starts your case is called a “complaint.” A few states call it a “petition.” If you’re drafting it without an attorney, pay close attention to your state rules. They might require that it includes specific allegations, or prohibit others. Different requirements are likely if you’re suing in small claims court.

Regardless of what your state calls it, this pleading usually contains some or all of the following. All but the case caption should be in separately numbered paragraphs.

A case caption. The case caption states the court where the lawsuit is pending, names all parties to the case, indicates the case number, and usually includes the name of the judge to whom the case has been assigned.
Jurisdiction and venue. In some states, you must include allegations showing that the court has “jurisdiction,” or authority to hear your case, and that you’ve filed in the proper “venue” (location).
The parties involved. Identify each party you’re suing, along with where they live or, for a business, where it’s organized and has its main office.
The facts of the case. Provide short, plain statements describing the facts of the case—who did what, when and where, how the crash happened, how you were injured or your property was damaged or destroyed, the medical care you received, any income or earnings you lost, and other losses you suffered. If you anticipate needing future medical care, say so.
What each defendant did wrong. Describe what the defendant did (or failed to do) that you think was negligent and caused your personal injuries or property damage. In a negligence complaint, for instance, you might say that “Defendant negligently crossed the center line into oncoming traffic and hit me and my motorcycle at a high rate of speed, causing me to suffer bodily injuries and property damage as described below.” Your complaint is likely to have several claims of negligent wrongdoing.
Your injuries and damages. Briefly describe your physical, mental, and emotional injuries, along with any property damage for which you’re seeking recovery. State that you’ve incurred medical bills, costs to repair or replace damaged or destroyed property, and other expenses caused by the responsible driver’s negligence.
Your request for relief. Here’s where you tell the court the relief—usually money damages—you want to be awarded. Check your state rules. Some states say you can’t specify the amount you’re requesting. Others require only a general statement like “Plaintiff seeks money damages in excess of $50,000.” Unless your state rules require it, it's usually not a good idea to provide an exact figure, because you might be prohibited from asking for more at trial.

Step 2: Prepare Summonses and Other Required Documents

It’s probably your responsibility to prepare a summons for each defendant. A summons is simply an order telling the defendant they must appear in court and defend the case, or risk having judgment entered against them. Check your state court’s webpage—or the webpage for the court clerk—to see if there’s an online summons form you can use. If not, you’ll need to get the form from the court clerk’s office.

Also, check the court rules for any other documents you must include with your lawsuit. For example, many states require that you prepare and file an information or cover sheet, or additional instructions for the defendant. The court clerk might reject your filing if you don’t have all the necessary forms, correctly prepared.

Step 3: File Your Motorcycle Injury Lawsuit With the Court

Once your complaint or petition is finalized and you’ve prepared the summonses and other documents, take them to the court clerk for filing. Note these important points.

The filing fee. Unless you’ve asked the court to waive it and the court has granted that request, you’ll have to pay a filing fee to start your lawsuit. Fees vary by state and by court, but for a lawsuit like this, a filing fee of $150 to $300 is common. Check before you go to find out what form of payment the clerk will accept—a credit card, personal check, or something else.
Number of copies. You’ll need to furnish one copy of your complaint for each defendant you’re suing, in addition to the original for the court file. You also want a file-stamped copy for your records. For each copy of the complaint, make sure you have an accompanying summons and any other required documents. Again, check with the clerk’s office to see if you need more than one original, or additional copies for the court clerk.

Step 4: Have Your Motorcycle Accident Lawsuit Served on Each Defendant

Your motorcycle injury lawsuit isn’t really filed, and your case doesn’t start, unless you serve each defendant—formally deliver to them, as required by the court rules—the summons, a copy of your pleading, and any other required documents. Different rules usually apply when serving individuals and businesses.

You’re not allowed to serve the lawsuit papers yourself. That has to be done by an adult who’s not related to any of the parties. In most cases, the sheriff’s office will handle service, or you can hire a private process server. You’ll pay service fees, often ranging from $35 to $75 per defendant for the sheriff, or from $100 to $250 or more per defendant for a private process server.

How Much Is My Motorcycle Injury Case Worth?

Unfortunately, there’s no good, one-size-fits-all answer to this question. Here’s what you need to know.

If you win your motorcycle injury case—meaning you get a settlement or a jury verdict—you’ll receive what the law calls “compensatory damages.” As the name suggests, these are damages that compensate you for your injuries and losses, both past and future. There are two kinds of compensatory damages: Economic, and noneconomic.

Economic Damages

Economic damages reimburse you for amounts you (or your insurance company) pay because of the wreck. Examples include hospital and doctor bills, rehabilitation charges, pharmacy expenses, the costs of medical equipment like crutches or a walker, lost wages and benefits, and costs for replacement household services such as yard care.

Noneconomic Damages

Noneconomic damages are meant to compensate you for losses that don’t come directly out of your pocket. Pain and suffering, emotional distress, loss of consortium, disability and disfigurement, and loss of enjoyment of life are common examples.

Noneconomic damages usually are more difficult to quantify than economic damages. Your lawyer might use a formula that multiplies your economic damages to arrive at a figure for these losses. Or they might refer to jury verdicts and settlements in cases like yours to arrive at a figure. Ask your lawyer for specifics.

What Are the Stages in My Motorcycle Accident Lawsuit?

These, generally speaking, are the stages your motorcycle accident lawsuit will follow, along with estimates of the timeline for each.

Pleading Stage

Once you file your case in court, the defendants have an opportunity to respond with a formal "answer." In their answer, they'll provide a response to each allegation in your complaint. Most states give defendants 30 days to answer, though it's common for them to seek an extension of time to investigate your claims before responding.

In lieu of filing an answer, a defendant is allowed to file a written motion to dismiss your lawsuit. This is a common tactic, one that can add between one and three months to the pleading stage. If the court grants the motion, you'll probably be given a chance to file an amended complaint. If so, the complaint-motion to dismiss process often repeats itself until the court indicates that your amended complaint will be allowed to go forward or is dismissed once and for all.

Pleading stage timeline: 45 days (no motion to dismiss) to 120 days (with motions to dismiss).

Discovery Stage

Once the pleading stage is complete, the parties enter the discovery stage of the case. As the name suggests, this process gives all parties a chance to find out—to discover—what evidence the others have and might rely on if the case goes to trial. Common discovery methods include:

interrogatories—written questions other parties must answer in writing, and under oath
requests to produce—written requests that other parties produce documents or other things in their possession
depositions—oral questioning of parties and non-party witnesses, under oath, with a transcript produced by a court reporter, and
requests to admit—written requests that a party admit the truth of certain facts.

Discovery is the longest and, short of trial, the most contentious part of any lawsuit. It's common for the parties to fight about what can and can't be discovered. They often end up in court, asking the judge to decide.

At the start of the case, the court will put a tentative deadline on discovery, usually allowing at least six months for the process to play out. Extensions of that deadline are the rule, not the exception. In complex cases with lots of factual and legal issues, discovery often lasts for a year or more.

Discovery stage timeline: Nine months to one year.

Pretrial Motion Stage

Once discovery concludes, the parties have a chance to ask the court to dispose of the case on motions for summary judgment. Essentially, these motions say to the court: The other side doesn't have enough evidence to prove their claims or defenses, so rule in our favor. As the plaintiff, you almost certainly won't be granted summary judgment. Defendants have a better chance at it.

Pretrial motion stage timeline: 60 days.

Trial Stage

Once all pretrial motions are disposed of, it's time for trial. Depending on the complexity of your case, count on three to five days for trial.

Trial stage timeline: Three to five days.

Post-Trial Motions

Once the trial is done, the losing side will file motions asking the court to overturn the verdict. These motions aren't often granted, but it happens frequently enough that your lawyer will take them very seriously. You'll have an opportunity to respond, in writing, to any motions the other side makes.

Post-trial motion stage timeline: 45 days.

Appeal Stage

If the other side's post-trial motions are denied, they're likely to file an appeal. Appeals are costly and time-consuming. Expect each appeal—there can be more than one, if your state has both intermediate appeals courts and a supreme court—to add a year to the overall timeline.

Appeal stage timeline: One year.

Total Motorcycle Accident Lawsuit Process Time

In total, from filing through the end of trial, you can expect a timeline of 18 to 24 months. If there are appeals, each one is likely to add a year. Other wrinkles during the case might add still more delays.

Additional Motorcycle Accident Lawsuit FAQs

Here are some other common questions about motorcycle accident lawsuits.

What if I'm in a no-fault insurance state? The rules in no-fault insurance states are different. You'll need to start your case by filing a claim against your own personal injury protection ("PIP") coverage. If your injuries and losses are significant, PIP won't be enough. When your injuries or losses exceed your state's no-fault thresholds, you're allowed to bring a claim against the responsible driver. Ask your attorney for advice specific to your case.

What’s the deadline to file my motorcycle injury lawsuit? A statute of limitations is a law that puts a deadline on your time to file a lawsuit in court. Each state gets to make its own statutes of limitations, and typically there are different deadlines for different kinds of cases.

In most states, the deadline for a motorcycle accident lawsuit is the same as for any other motor vehicle accident. Common limitation periods are between two and three years from the date of the crash. In some states, the deadline might be as short as a year. In others, you’ll have more time. Also, note that:

very short deadlines can apply in specific situations, like when you’re suing the government
a different deadline might apply to cases where the motorcycle rider was killed
states often have exceptions that might give you more time to sue (but don't count on it), and
if you miss the filing deadline, there’s a good chance you’ve lost the right to recover damages for your losses.

Statutes of limitations are among the most confusing and difficult to apply of all laws. If you’re not sure how much time you have to sue, speak to a lawyer right away.

Will my motorcycle injury case settle before I go to court? Most personal injury cases settle without a court trial. That’s true for motorcycle accident cases, too. The likelihood of settlement in any case comes down to several factors, including:

the responsible driver’s fault, and whether aggravating factors like alcohol or drug impairment were involved
your injuries and damages, whether you’ve suffered any long-term or permanent disability or disfigurement, and the likelihood that you’ll require future care
whether the responsible driver had liability insurance and, if so, how much
the credibility and likeability of your witnesses, including expert witnesses, and
how much you and the other side want to avoid a trial.

Here's a sample motorcycle accident demand letter that might help you to settle your case.

Can I still sue if I was also to blame? Probably yes, but ask your lawyer about your state's shared fault rules. In a tiny handful of contributory negligence states (Alabama, Maryland, North Carolina, and Virginia, along with the District of Columbia), any fault on your part completely destroys your case. If you're even 1% to blame, you can't collect any damages.

Most states use some form of comparative negligence. In the majority of these states, you can collect damages for your injuries as long as your share of the blame isn't 50% or more. About a dozen states are "pure" comparative negligence states, meaning you can collect a portion of your damages as long as you weren't 100% at fault for the accident.

A Lawyer Can Help With Your Motorcycle Injury Case

Motorcycle accidents often involve serious, sometimes catastrophic injuries or death. If that describes your case, give serious thought to hiring an experienced motorcycle accident attorney to handle it for you. Odds are that the responsible driver will be represented by a seasoned defense lawyer. To make it a fair fight, you need an advocate on your side.

When you’re ready to move forward, here’s how to find a motorcycle accident lawyer who’s right for you.