An accident victim might be in a position to file a personal injury claim or lawsuit if someone else’s recklessness, carelessness, or negligence caused the accident and your injuries. When it comes to personal injury cases, you want to have an experienced attorney on your side at all times, advocating for you and helping you pursue monetary compensation for your injuries. A lawyer can do this by filing a claim against the at-fault person’s insurance company and, if necessary, filing a lawsuit.
Personal injury cases are time-sensitive, and there is a deadline by which you must file a claim or lawsuit in the state court system. A personal injury lawyer in your jurisdiction can help you investigate the accident, file a claim or lawsuit on your behalf promptly, and help you pursue compensation and damages for the injuries you suffered and everything else that you went through in the accident.
You should speak with an experienced personal injury attorney in your jurisdiction as soon as possible following your accident. Your lawyer can then be by your side throughout the entire claim or lawsuit process and can address all of your legal questions and concerns.
What Is a Personal Injury Case?
Personal injury cases arise when an individual’s negligence leads to an accident, and as a result, the accident victim suffers one or more personal injuries. Accidents that may lead to the filing of personal injury claims and lawsuits include motor vehicle accidents (involving cars, trucks, and motorcycles), bicycle accidents, boating accidents, and premises liability incidents (including those that involve slip and falls and negligent security on the premises).
Victims of these and other types of accidents can lead to serious injuries, many of which require extensive amounts of medical treatment, physical therapy, and rehabilitation. In some instances, the injury or injuries that an accident victim suffers can lead to a lifetime of pain and discomfort.
The seriousness of an accident victim’s injuries depends upon numerous factors, including the seriousness of the accident and how the accident victim suffers their injuries.
Common personal injuries that an individual may suffer in an accident include:
- Traumatic head and brain injuries – Head trauma can result in damage to the brain tissue, which can cause cognitive, physical, and behavioral impairments. Brain injury victims might need extended rehabilitation, and they might have permanent disabilities.
- Fractures and broken bones – While fractures might be considered a relatively minor injury, they all should receive medical treatment, and some might require surgical procedures.
- Soft tissue injuries – These injuries include strains, sprains, and tears to tendons, ligaments, or muscle tissue. People with these injuries might need rehabilitative therapy, surgery, and other treatment.
- Bruising and contusions – While bruises can be minor, they can also need medical treatment when they cover a wide area, impact bones or internal tissue, or might be concealing fractures or other injuries beneath the contusion.
- Internal injuries – Many accidents can result in internal bleeding and organ damage, which are not visible to the naked eye and require a professional diagnosis.
If you have suffered any of these injuries in an accident that someone else caused, you should speak with a knowledgeable personal injury lawyer in your area as soon as possible. A lawyer can assist you with filing your personal injury claim or lawsuit promptly, all while pursuing the compensation and damages that you need for your injuries.
Prerequisites to Filing a Personal Injury Lawsuit
Except in cases where the statute of limitations filing deadline is quickly approaching, a lawsuit is not typically the first course of action in a personal injury case. In most cases, the accident victim’s lawyer will file a personal injury claim on the accident victim’s behalf against the at-fault person’s insurance company.
In personal injury cases that involve a hit and run accident, the accident victim could file a claim or lawsuit against their own motor vehicle insurer via an uninsured motorist claim. Likewise, in motor vehicle accident cases where the at-fault driver’s insurance policy is insufficient to compensate the accident victim for all of their injuries and damages, the accident victim can file an underinsured motorist claim against their own motor vehicle insurer.
Regardless of the insurance company involved, most personal injury claims tend to proceed in a similar manner. First, the accident victim must ordinarily finish all (or most) of their medical treatment that is related to the accident. Once all medical records and bills are received, the accident victim’s lawyer can begin assembling a demand package to submit to the insurance company’s adjuster.
A typical settlement demand package in a personal injury case will typically consist of:
- Copies of all medical records and bills (including any disability reports or permanency evaluations) that the accident victim received as a result of the injuries they sustained in the accident
- Copies of all investigative reports, including a copy of any police reports that an officer prepared following the accident
- Copies of all lost wage documentation that the accident victim’s employer prepared following the accident, showing the dates that the accident victim was absent from work due to their injuries, along with the accident’s victim’s rate of pay
- Photographs of all property damage
- Photographs of injuries that the accident victim sustained (including cuts, bruises, and scarring)
- An impact statement the victim prepares in which they explain the impact that the accident has had on their life and relationships
- A cover letter that makes an initial demand for settlement (possibly the available limits of the insurance policy, especially in serious accident cases)
Once an accident victim’s lawyer sends a demand package to the insurance company’s adjuster, the adjuster will typically take some time to review all of the included documentation. Assuming the insurance company has accepted fault or liability for the accident, the adjuster will usually make an initial offer to settle the case. In the majority of personal injury cases, however, these opening offers are extremely low and are far less than the full value of the personal injury case.
The parties may then engage in several rounds of settlement negotiations, during which the accident victim’s lawyer will decrease the settlement demand amount, and the insurance company’s adjuster will gradually increase their settlement offer. The negotiations will typically reach a point where the parties either agree to settle the case or reach an impasse. In the latter instance, the accident victim may instruct their lawyer to file a lawsuit.
Just because the accident victim’s lawyer files a lawsuit does not necessarily mean that the case will go all the way to trial. In fact, personal injury cases settle long before they ever reach the trial stage in many instances. The mere act of filing a lawsuit is sometimes enough to light a fire under the insurance company’s feet, so to speak, and convince them to offer more money to settle the personal injury case.
At other times, once the accident victim’s lawyer has filed the lawsuit, the parties will need to litigate the case and perhaps engage in some discovery, before the insurance company increasing its settlement offer to a meaningful number that is worth accepting.
An experienced personal injury lawyer in your jurisdiction can assist you throughout the entire negotiation and litigation stages of your case. Specifically, a lawyer can negotiate with the insurance company on your behalf and help you decide whether it would be in your best interest to accept a pending settlement offer. Your lawyer can also help you decide if you should file a lawsuit, and if so, can prepare the lawsuit and file it in the state court system on your behalf.
Deadlines for Filing a Lawsuit in a Personal Injury Case
Every jurisdiction throughout the country has a statute of limitations deadline in place for filing a lawsuit in a personal injury case. This deadline can be anywhere from one year to four or five years following the accident date. If the accident victim does not file a lawsuit by the deadline imposed by the statute of limitations, the court will dismiss the case.
There are many reasons why various jurisdictions impose statutes of limitations deadlines in personal injury cases. One of the main reasons is that a statute of limitations ensures that cases move along efficiently and do not languish. They also help to ensure essential witnesses in the case, including eyewitnesses to the accident and medical experts, remain local and available so that they can testify at the trial, if necessary.
In every personal injury case, you should assume that the statute of limitations deadline is the latest date on which an attorney can file a lawsuit in your case. However, depending upon the circumstances, some very limited exceptions could extend (toll) the statute of limitations deadline in a personal injury case. For example, if one of the individuals who suffered an injury in the accident was a minor, a court could toll the statute of limitations until the minor reaches the age of majority (18 years of age in most jurisdictions).
An experienced personal injury attorney in your area could assist you in filing a lawsuit on time. Your lawyer can also name all potentially responsible parties as defendants in the lawsuit since failing to name a necessary party by the filing deadline might result in the court dismissing that defendant from the case.
Legal Elements of Proof in Personal Injury Cases and Who Has the Burden of Proving Those Elements
In all personal injury cases, the accident victim (the plaintiff) has the burden of proving all of the necessary legal elements in the case. It is only after that point that the accident victim can recover monetary compensation for the injuries and damages they suffered in the accident. In most jurisdictions, the accident victim must prove the legal elements of the case by a preponderance of the evidence.
In other words, it must be “more likely than not” that the at-fault party’s negligence caused the accident and that the accident victim suffered a particular injury as a direct and proximate result of that negligence.
The specific legal elements that an accident victim must prove to recover monetary compensation in a personal injury case include:
- Duty of reasonable care – The at-fault person or entity owed the accident victim a duty to act reasonably under the circumstances and to exercise a certain amount of reasonable care at that time.
- Breach (or violation) of the duty of reasonable care – The at-fault person or entity violated the applicable duty of care in some way.
- Causation – The at-fault person or entity’s violation of the applicable duty of care was the actual and foreseeable cause of the accident.
- Damages – The accident victim suffered an injury or damage as a direct result of the accident that occurred because of the at-fault person or entity’s negligence.
In a personal injury case based upon a car accident, for example, the at-fault driver breaches the standard of care when they speed, run a red light, or violate some other rule of the road, and an accident results. In a slip-and-fall accident, the premises owner might breach the duty of care if they know about a hazardous condition on the property but fail to warn about or correct the condition, resulting in a customer slipping and falling on the property.
Also, in some personal injury cases, the insurance company for the at-fault person or entity might stipulate to some of these legal elements. For example, if a police officer gave the at-fault driver a citation or otherwise placed blame for the accident on that driver, then the at-fault driver’s insurance company might stipulate liability. In that instance, the issue of damages (the amount, extent, and value of the accident victim’s injuries) is likely the only legal element litigated if the matter went to trial.
Proving the legal elements of a personal injury case can be an uphill battle, especially since the accident victim has the burden of proving those elements. Moreover, to save money, insurance companies and their adjusters typically do everything that they possibly can to undermine the value of a personal injury case. For example, they may point to prior or subsequent injuries, degenerative findings on x-rays and other imaging studies, and conflicting medical reports to support an argument for a low settlement offer.
An experienced personal injury attorney in your area can help you prove the legal elements to pursue a successful result in your case. Your attorney must retain a medical expert, for example, to causally connect your injuries and damages to the accident.
Litigating a Personal Injury Lawsuit to a Conclusion
Sometimes, settlement negotiations with an insurance company fail in a personal injury case, and the accident victim’s lawyer must file a lawsuit in the state court system. At other times, the plaintiff’s lawyer may need to file a lawsuit to satisfy a statute of limitations deadline that is rapidly approaching.
Whatever the case, filing a personal injury lawsuit in the state court system initiates the litigation process. Once the plaintiff’s lawyer files a personal injury lawsuit, the clerk’s office will issue a summons needing to serve (along with a copy of the complaint) on all individuals and entities that are named defendants in the lawsuit. In the case of a car accident case, for example, the defendant is usually the driver of the at-fault vehicle, and in some cases, the owner as well.
Once all of the defendants have received their summons, the insurance company for the at-fault driver will refer the case to a defense attorney to enter an appearance. Once counsel enters an appearance on behalf of the defendant, they will file a formal answer to the plaintiff’s complaint. At that point, the parties will typically engage in both written and oral discovery. During the written discovery process, the parties will answer written questions, called interrogatories, and exchange documents.
These documents could include copies of the accident victim’s medical records and bills, investigative reports (such as the police report, if an officer prepared one), and photographs depicting injuries and property damage. Both parties can later introduce the written documents that the parties exchanged during the discovery phase of litigation as evidence, in the event the personal injury case comes before a jury.
During oral discovery, depositions typically occur. In a deposition, the defense attorney will usually ask the accident victim questions about how the accident occurred, as well as the injuries they suffered as a result of the accident, medical treatment received for those injuries, missed work time, and permanency.
Throughout the litigation stage of a personal injury case, the parties may continue to negotiate a settlement offer. In particular, after depositions take place, the insurance company may be in a position to fully evaluate the case and make an offer that is worth accepting. In some jurisdictions, courts will set in one or more pretrial and settlement conferences or mandatory mediation proceedings that all parties must attend.
During these proceedings, the parties will go to court and meet with a settlement officer or retired judge who will act as a neutral third party in the case. These individuals will meet all of the parties and their attorneys in an attempt to bring about a favorable resolution with which both sides can agree.
If the parties still cannot agree on a full and fair settlement in the personal injury case after all of these proceedings are complete, the parties may decide to take the case to a jury trial for a decision on the remaining issues in dispute. Instead of a jury trial, the parties may decide to pursue some form of alternative dispute resolution, such as mediation or arbitration.
An experienced personal injury lawyer in your jurisdiction can assist you throughout every aspect of personal injury litigation. As the litigation process unfolds, a knowledgeable attorney can help you decide whether you should accept a settlement offer that is pending in your case, or take your case to a jury trial or pursue mediation or arbitration.
Will My Personal Injury Lawsuit Go All the Way to Trial?
Many factors will determine whether a personal injury case will go all the way to a jury trial. In these cases, it often depends upon the insurance company involved since some insurance companies are more generous when it comes to settlement offers than other insurance companies.
Another factor is the precise issue or issues that the parties are disputing in the personal injury case. In cases where the parties are disputing liability (fault) for the accident, the case is more likely to head to a jury trial on that issue of liability since the insurance company may issue a denial under some circumstances. However, depending upon the jurisdiction where the personal injury case is pending, if the only disputed issue in the case is damages, the parties may be willing to “roll the dice,” so to speak, and let the jury make the determination.
If you do decide to take a personal injury case to a jury trial, a jury will decide all of the case’s issues in dispute, including liability and or damages (the amount of monetary compensation to award the accident victim for their injuries). If one or both of the parties do not like the result that the jury members reach (the verdict), they can appeal the trial result under certain very limited circumstances.
The most likely scenario for appealing a jury’s verdict in a personal injury case is when the presiding judge makes a serious legal error at trial. For example, the judge might have allowed something into evidence that was inadmissible under the rules for that jurisdiction.
The laws of most jurisdictions also allow several opportunities for alternative dispute resolution proceedings, the most common of which are mediation and arbitration. These proceedings allow the parties in a personal injury case to meet with a neutral third party who will assist the parties with facilitating a resolution of the case.
Some mediators and arbitrators in personal injury cases are practicing lawyers, while others are retired judges. These individuals do not have a personal or financial interest in the case outcome and can bring both parties together to resolve the case amicably.
Mediation proceedings, for example, often consist of breakout sessions between the neutral third-party mediator and the individual parties and their lawyers. In personal injury mediation, the accident victim’s attorney typically begins with a monetary demand for settlement, and the defense attorney or insurance company usually makes an opening settlement offer.
The parties may then go back and forth, with each side making concessions (gradually reducing the settlement demand and increasing the settlement offer), until the parties reach a settlement number with which they can live.
Arbitrations are a popular alternative dispute resolution mechanism for personal injury cases where liability is not in dispute, and the only remaining issue in need of a decision is that of damages. During an arbitration proceeding, and in particular a binding arbitration proceeding, the parties typically agree on high and low parameters beforehand that they do not share with the arbitrator at any time.
The parties then present their case to the arbitrator and introduce exhibits, much like at a jury trial. The arbitrator then decides the case based upon the evidence presented at the arbitration proceeding, including documentary evidence and witness testimony.
If the arbitrator’s final award fits within the high and low parameters, the plaintiff receives that amount of money. If the arbitrator awards damages that exceed the predetermined and agreed-upon “high” amount, the plaintiff automatically receives the predetermined high amount. If the arbitrator’s final award falls below the predetermined and agreed-upon “low” amount, they automatically receive the predetermined low amount.
Arbitration agreements govern binding arbitration proceedings. Just by signing the agreement and showing up for the arbitration proceeding, the plaintiff will receive at least the agreed-upon “low” amount. Since the arbitration award is binding, no party has a right to appeal the result.
An experienced personal injury attorney in your area can help you decide if you should take your case to a jury trial or consider an alternative dispute resolution proceeding, such as mediation or arbitration. Whatever your decision, you can rest assured that your lawyer will be present with you during any of these proceedings and will zealously advocate on your behalf for your legal interests.
Compensable Damages From a Personal Injury Lawsuit
To recover monetary compensation in a personal injury case, the accident victim has to demonstrate, usually by a preponderance of the evidence, that they suffered at least one personal injury as a result of the accident. In addition, another person’s carelessness, recklessness, or negligence must have caused the accident.
The damages that an accident victim can receive depend upon a variety of factors. One important factor is the seriousness of the accident. Generally speaking, serious accidents result in serious injuries, which in turn lead to extensive medical treatment and greater potential damages.
In addition, the nature and extent of the medical treatment that the accident victim receives following the accident can determine the size of the damage award they likely recover. In cases where an accident victim has to undergo extensive medical treatment, such as surgery, the damages will likely be more than if the accident victim has to undergo some lesser form of treatment. In addition, accidents that lead to permanent injuries are generally more compensable from a damages standpoint.
If you or someone you love suffered an injury in an accident that was caused by another person’s negligence, there are several different types of damages that you may be eligible to pursue.
First, you could pursue and recover monetary compensation for all of the medical treatment, including surgical procedures and physical therapy, that you had to undergo as a result of the injuries that you suffered in your accident. You could recover monetary compensation for your medical bills and treatment if your health insurance, Medicare, or Medicaid covered some or all of your treatment costs.
In addition, if you had to miss time away from your work because of the injuries that you suffered in your accident, you could file a claim for lost income. To successfully secure lost income, you must ordinarily have a healthcare provider state in a medical report that you could not work because of your injuries. You also typically need to have appropriate documentation from your employer showing the hours you missed, along with the amounts of your hourly, weekly, or monthly wages.
In some cases, accident victims have to change their careers entirely due to the injuries that they suffer in their accident. They may also have to switch to lighter duty work that can accommodate their injury or disability. In that instance, the accident victim could file a claim for loss of earning capacity. In lost earning capacity cases, an expert might be necessary to demonstrate that the accident victim can no longer work at a specific job or in a specific career because of their injuries.
Moreover, accident victims can recover monetary compensation for all of the pain, suffering, and inconvenience that they had to endure as a result of their injuries. If they cannot use a particular body part, such as the result of paralysis, they can make a monetary claim for loss of use. In addition, if the accident victim cannot enjoy the same activities that they enjoyed before the accident, the accident victim could pursue a claim for loss of enjoyment of life.
When injuries that an accident victim sustains impact their family life and relationships, the accident victim could file a claim for loss of family support or loss of spousal consortium. An experienced personal injury attorney in your area can assist you with making all of the necessary damage claims and pursuing the monetary compensation that you deserve for the injuries that you suffered in your accident. Contact Brauns Law Accident Injury Lawyers, PC today to learn more about your legal options.
