The Basics of Personal Injury
There's a lot of ways in which personal injury rules can apply to a situation.
Accidents: If somebody acts in a negligent way in which causes harm to another person, personal injury rules may apply. Examples include car accidents, slip and fall incidents, and medical malpractice, among other types of cases.
Intentional Acts: If someone is intentionally harmed, personal injury laws can apply here as well. Examples such as assault and battery, and other intentional torts.
Defective Products: If someone is harmed by using a vehicle component, purchased product, medical device, pharmaceuticals, or any other product that is defective or unknowingly dangerous, they may be able to file suit against the manufacturer.
Defamation: Personal injury laws apply when one person's defamatory statement causes harm to another.
How Does a Personal Injury Case Work?
Accidents are never the same, neither are personal injury cases. However, there are some general steps that most personal injury cases take.
Plaintiff Is Injured By The Defendant.
Almost any harmful act performed by the defendant, other than a breach of contract, which is handled under "contract law".
Plaintiff Determines that Defendant Breached a Legal Duty.
The exact legal duty depends on the situation in which the injury has occurred. Like for example, a driver's duty is to operate their vehicle with a reasonable level of care that an average person would on the road. the level of care that a reasonable person would exhibit while on the road. Doctors have a legal duty to treat a patient in accordance with the applicable medical standard of care. Manufacturers and distributors have a duty not to put defective or unreasonably dangerous products on the market.
Settlement Talks Occur. If it is transparent to everyone involved that the defendant has breached a legal duty, then the defendant (or even the insurance company representing them) might try to settle outside of court. Normally this involves the defendant offering a payment to the injured party, in return they make a binding promise not to file suit against them.
If the injured party agrees to a settlement, then the case ends there. If they do not agree, they could go to court and file a personal injury lawsuit. Settlement negotiations may not end when a lawsuit is filed. A settlement can be reached at any time before the civil case is handed over to the jury for a form of verdict.
If you're considering filing a personal injury case after an accident or incident of any kind, you should definitely discuss your options with a bar certified personal injury attorney first.
When You should Consider Hiring a personal injury lawyer.
The insurance company you are making the claim against will have attorneys representing and fighting for them. Lawyers are professionals who spend years and countless hours studying the particulars of the law and gathering knowledge to represent their clients to the best of their abilities. If the insurance company or the party you are taking to Small Claims Court has legal representation, it may be something for you to consider as well.
Your Injuries May Not Be As Minor As You Thought
Many people are reluctant to hire a lawyer for injuries that seem relatively minor. For example, if you get into a car accident and you bruise your arm and suffer a few scrapes, you may not feel it is worthwhile to hire a personally injury attorney. And if the other driver's insurance company makes you an offer to pay your medical bills and give you a few hundred dollars extra on top of that, it may not be worth the hassle of finding legal representation.
But there are a few reasons why you might consider making a phone call or scheduling an initial consultation with a lawyer, even for seemingly minor injuries.
Minor Injuries May Turn into Major Ones. If your injuries turn out to be worse than you and your doctor thought, and you have already accepted a settlement offer, there will be nothing you can do about it since you must give up any and all future claims arising out of the accident when you settle. A good lawyer will advise you to wait until you know the full extent of your injuries, and would help you to determine the right time to accept an offer.
You're Entitled to "Pain and Suffering" Damages. Pain and suffering and emotional distress damages would be considered by a jury if your case went to court, and so a settlement that doesn't include these types of damages might not be a complete one. Your lawyer can explain all damages you may be entitled to, even for injuries that seem minor, and will advocate on your behalf to make sure you receive a satisfactory settlement.
Small Cases vs. Serious Injuries
Whenever you suffer from serious injuries, you need to get an attorney. That's because:
Your lawyer can help you make sure you get the full spectrum of damages you're entitled to.
Lawyers are experts in negotiation and can maximize your recovery.
The insurers and defendants may take your claim more seriously once you're represented by an attorney.
What About My Insurance Company?
One reason many people cite for not hiring a lawyer of their own is that they have insurance, or that the other party has insurance. You may believe that insurance companies are there to look out for you. But in many cases, the insurance company's interests are directly at odds with yours:
You have a primary goal of getting as large of a damage award as possible to compensate you for all you went through.
Insurance companies have a primary goal of paying out as little as possible so that they have more in the way of profits.
Affording a Lawyer: Contingency Fee Agreements
Another primary reason people may be reluctant to hire a lawyer is out of fear of paying legal fees. But almost all personal injury lawyers work on something called a contingency basis. This means that your personal injury lawyer will not be paid any money or legal fees unless you win your case or settle outside of court.
Contingency fee agreements work by allowing the lawyer to collect compensation right out of your settlement or damage award. It is common for the agreement to be structured based on a percentage of the amount of money you receive. For example, the agreement may stipulate that the lawyer gets 30 percent if you settle before a lawsuit is filed, one-third if you settle after the lawsuit is filed but during the discovery process, or 40 percent if the case actually goes to trial and damages are awarded by a jury.
Steps in a Personal Injury Lawsuit
Every personal injury case is unique, but there are common litigation landmarks you can expect to encounter once you make the decision to file a personal injury lawsuit.
In this article, we'll:
discuss how plaintiff and defendant navigate the first steps in a personal injury lawsuit
explain how "discovery" works, and
look at likely outcomes after an injury lawsuit goes to court.
The Plaintiff Is Injured and (Usually) Hires an Attorney
At the heart of any legitimate personal injury case is, of course, an injury of some kind. However uncertain the defendant's liability or the extent of the plaintiff's losses might be, no case will make it far without some proof of the plaintiff's injury.
If the plaintiff's losses ("damages" in legalese) appear to be more than the local small claims court limit (usually around $5,000 to $10,000, depending on the state), most plaintiffs will talk with an attorney. If, after the initial consultation, it appears that the plaintiff might have a case, the attorney may agree to conduct an exploratory investigation, including as to whether or not the defendant has applicable insurance and/or sufficient assets to cover any settlement or judgment. If the consultation and investigation lead the attorney to conclude that the case is viable, a fee agreement will be signed and the attorney-client relationship will be official.
A Complaint Is Filed and Served on the Defendant
After establishing that a legitimate case exists, the plaintiff's attorney will file a personal injury complaint in the proper civil court. The complaint is the first official document in the case, laying out in very broad detail what the plaintiff is alleging (what the defendant did, how the plaintiff was harmed, etc.).
After the complaint is filed, the plaintiff's attorney will have a month or more to locate the defendant and "serve" the complaint on him or her. Serving the complaint basically means physically delivering the complaint to the defendant in a way that can be verified, ensuring the defendant cannot later claim to not know about the lawsuit. Along with the complaint, the service papers will tell the defendant the date by which he or she must "appear" in court.
The Defendant Hires an Attorney
The defendant will typically have a month or more to find an attorney before his or her first court date. If the defendant has assets or an applicable insurance policy, finding a personal injury defense attorney willing to take on the case should not prove difficult.
If insurance applies, the defendant must notify the insurance company as soon as he or she knows about the lawsuit (which is a strict requirement in insurance policies). The insurance company will then appoint and pay for a lawyer if the defendant has not already hired one. Defense attorneys work at an hourly rate, not under a contingency fee agreement, so if the defendant can afford to pay out-of-pocket, a "losing" case that's headed for early settlement is not a deterrent to the attorney, who is getting paid either way.
Pre-Trial and "Discovery"
In the pre-trial process, both sides will ask each other for evidence and witness information in a phase called "discovery." At the early stages, both sides will also appear in court to inform the judge of how the case is proceeding, to agree (or not agree) to mediation or arbitration, and to set a trial date. As discovery proceeds, both sides will begin to schedule depositions of the opposing party and witnesses, i.e. question-and-answer sessions under oath.
This process of discovery and intermittent court appearances can take months (even a year or more), with the trial date frequently being pushed back. Eventually, once discovery has concluded, the defendant may ask the judge to throw out the case on "summary judgment," arguing that the plaintiff cannot possibly win at trial (these motions lose more often than not).
As the case moves closer to trial, the parties will significantly ramp up their efforts as they engage in mandatory settlement conferences, make motions to determine what evidence will be allowed at trial, select a jury, etc.
The Trial Phase of a Personal Injury Lawsuit
Finally, the trial will begin and, for a typical personal injury case, last at least several days. At trial, the judge or jury will determine if the defendant is at fault for the accident and for the plaintiff's losses, and if so, how much the defendant is required to pay out in damages. After trial, either party can initiate an appeals process that can last from several months to several years. After the appeals process has been exhausted, a losing defendant will be required to pay the damages established at trial or on appeal.
Settlement Is the Most Likely Outcome
Most personal injury cases settle before trial. At any point in the process described above, the parties can settle and end the case, even before the complaint is filed.