Personal Injury Lawsuit Challenges

The types of personal injury lawsuit challenges plaintiffs face depend on the facts and circumstances of the case. According to personal injury lawyers, some of the bigger challenges might include finding the right person or company to hold liable for what happened and perhaps even, despite clear negligence and causation, actually being able to collect those damages from the tortfeasor. In other words, if the person who committed the negligence doesn’t have any money, there’s no way to collect – leaving the plaintiff with a significant challenge.

Initially, many of the challenges deal with determining and examining the reasonableness or unreasonableness of the conduct which is alleged to be negligent. Just because you might be seriously injured, that doesn’t necessarily mean that someone is at fault for what happened.

So, one of the first obstacles is to determine whether or not the conduct involved is reasonable under the circumstances. That varies depending on where the accident occurred and whether the tortfeasor was someone held to a higher standard of care (such as a doctor), etc. That’s why it’s important to have an experienced lawyer on your side.

Liability Is One Thing; Compensation Is Another

While there are many personal injury lawyers out there who might be able to amble through a case, the fact remains that sometimes the obvious person who you would think would be liable for an injury either may not have the money to pay – or there may be someone else, an intervening person – who also might be liable and can pay. For example, personal injury claims often go hand-in-hand with product liability claims, so the number of possible defendants may be larger than initially realized.

By seeking an attorney who has experience in what needs to be done in order to successfully pursue your claim most effectively can increase your chances of not only get what you’re owed, but getting it in a way that is efficient – so you’re not wasting money and time over years to try to collect it. It’s great to get a million dollar damages award, but if the company can’t pay, then you haven’t really gained anything.

Is it reasonable for someone who sustained only minor soft-tissue injuries (i.e., bruises, muscle strain, tendon strain, ligament strain) to collect $15,000 for pain and suffering while someone who suffered a fractured leg gets only $5,000? Maybe. Does it make sense for someone with some bruises and abrasions to get $50,000 while someone else with broken fingers gets only $20,000? Maybe. Why maybe?

Let’s take a look at the first situation. The person with the minor soft tissue injuries is 85 years old and has trouble getting around because of osteoarthritis, but managed fine before the accident. Now he experiences a lot more pain in his neck and back and can’t sit for any length of time and can’t walk to the grocery store and back. He needs to go the doctor for treatment, but that causes even more pain because it hurts to get into and out of a car. He also has a sensitive stomach, so is limited as to what kind of medication he can take to reduce the inflammation and pain. Does $15,000 sound better now? How about the person with the fractured leg? Suppose it was only a hairline fracture of the ankle requiring a soft removable cast for only two weeks. She works at a desk all day, rides an elevator up and down in the building. She told the lawyer in her deposition that it doesn’t hurt—she takes no pain medication. No physical therapy will be required afterwards. Only three visits to the doctor were needed, totaling $250 plus $100 for the removable cast. So, does $5,000 sound more “reasonable” now? Not excessive or extreme. Fair.

How about the second situation with the bruises and abrasions? $50,000 does seem like a lot of money, until you find out that the injured party has diabetes and will have to be hospitalized and face a long recuperation because of the open abrasions, if they go away at all. He may be treated for this malady for months or even years to come. He’s also prone to infection. A one week stay in the hospital could cost $10,000 just for the room itself, without taking into consideration the physicians’ bills, medical supplies, prescription medicines, etc. So, how does $50,000 sound now? As for the person with the broken fingers, his injury can be pretty painful. Well, broken fingers on a child heal very quickly—he’s only 4 years old. Did I mention it was his non-dominant hand? He’ll be fine in a week to ten days. There will be no pain when they’re splinted. He might be a little sore for a few days after the splint comes off. So, $20,000 sounds like it might even be too much, doesn’t it? As you can see, what’s reasonable for one person is not reasonable for another. All factors must be taken into account so a whole picture is formed before it is determined what is a reasonable award or settlement for pain and suffering.

Once the first three elements of a tort (duty, breach, and causation) have been established, it is then a matter of determining the amount of damages suffered so that an injured party can be compensated for the damages sustained as a result of the tortfeasor’s act or omission (a “tortfeasor” is the person who breached his/her duty which caused damages).

Some common “damages” that a person may suffer include:

(1) medical expenses – such as doctors fees and hospitalization costs

(2) rehabilitation therapy – the cost of obtaining services provided by others who assist a person to return to the same or similar physical condition s/he was in prior to the negligent act or omission. This could include training for a new occupation if the injury prevents the injured party from working in his/her normal trade or occupation

(3) lost wages – wages and earnings which would have been earned by the injured party but for the negligence of the tortfeasor

(4) pain and suffering – compensation for the hurt that an injured party is caused to endure as a result of the negligence of the tortfeasor. (There are some “rules of thumb” that often involves a multiple of medical expenses and rehabilitation therapy – i.e. – three times medical and rehabilitation expenses.)

(5) punitive damages – assessed against reckless or irresponsible behavior to prevent such behavior from the tortfeasor in the future and to deter others from acting in a similar manner.

In many personal injury lawsuits, expert witnesses are retained to assist in determining the amount of damages sustained by an injured party and to present this evidence to a jury.

• Real Property – real estate and land
• Personal Property – almost everything else, including cars, furniture, jewelry, books, clothes, computers, etc.
• Common Property – property that is owned by more than one person
• Public Property – property that is owned by the local, state, or federal government

With the ownership of property comes the potential for property damage. If your property is negligently or intentionally damaged by another, you may be able to sue in order to receive compensation for your loss. Property damage can include almost any kind of harm or destruction to a house, a car, a tree on your house lot, or any other kind of property. The loss can be calculated in a variety of ways, including cost of repairs, cost of the loss of use while the property is being repaired, replacement value, and even sentimental value. If you have property that was damaged by someone else who was acting negligently or intentionally, you may want to contact an attorney to discuss your situation.

The Accident
Contacting an Attorney
Demand Letter
Filing a Lawsuit
Discovery
Pre-trial Motions
Settlement
Trial
Appeal
Collection

The Accident

When an accident occurs, it is important to record as much data as you can about the circumstances surrounding the accident as quickly as you can. For example, if you are involved in a car accident, you might want to call the police to have them make a report about the scene, such as the position of cars, skid marks, and so on. If possible you should have someone take photos or videos of the scene of the accident as soon as possible after the accident. You might record a torn carpet, damaged step, or spilled food that has caused a fall or skid marks and broken glass from a car accident. You will also want to get the names and contact information of any witnesses to the accident. Anyone who is injured in an accident should seek medical care as soon as possible to find out what injuries have been caused by the accident and to minimize injury. Documenting these details early on will help you determine key issues, such as fault and amount of damages, when the time comes. It will also keep you from forgetting important details.

Contacting an Attorney

Unless your injuries were very minor (i.e. very minor soft tissue injury from a 5 MPH fender bender), you should consult with an attorney very soon after your accident. A good personal injury attorney can help you gather key evidence and provide valuable advice on how to document your injuries and damages. Under no circumstances should you talk to an attorney representing the other person in the accident, the other person’s insurance company representative, or sign any documents, before consulting with your own attorney first.

Demand Letter

If you believe you’re entitled to compensation from the other party for your injuries, your attorney will usually send a demand letter, either to the other person (or their attorney) or to the other person’s insurance company. The letter will give the relevant facts about the accident such as the time and place and cause of the injury, describe your injury, and ask for a specified amount in settlement of the case. A demand letter usually gives the other parties a specified time to respond.

Filing a Lawsuit

If your case is not settled, the next step is for the person who has been injured to file a lawsuit. The person filing the suit is called the plaintiff, and the document the plaintiff files is usually called a complaint. The party being sued is called the defendant. A third party serves the complaint on each of the defendants, and the defendants have a specified time to reply to it, such as 20 to 30 days. This reply is usually called an answer. All documents, including the complaint and the answer, are filed with a local court. The plaintiff usually chooses the court, although, under certain circumstances, a defendant may seek to have the lawsuit moved to a different court.

Discovery

After the lawsuit has been filed, the parties have an opportunity to get information from each other about the case. This can be in the form of written questions, sworn testimony in front of a court reporter, and requests for documents and things. For example, a plaintiff who was injured tripping on a step may want to find out if other people had tripped on the same step before the accident. This information would be used to show that the owner knew the step was dangerous and should have foreseen that someone might be injured in a fall (a necessary element to prove negligence on the part of the owner). On the other hand, the owner might want to find out if the plaintiff had been injured before to argue that the injury claimed was not caused by the fall on the steps.

Pre-Trial Motions

Before the case is set for trial, the attorneys in the case may make various legal arguments about the case in the form of motions to the court. These might concern the adequacy of the complaint or answer, disputes about discovery, or an argument that one party’s case is so strong that he or she is entitled to judgment in his or her favor without a trial.

Settlement

When the case is finally ready for trial, many courts require the attorneys to meet with a judge for a settlement conference where the judge tries to help the parties reach a settlement agreement before going to trial. In some places the parties are referred to mediation before a case can be set for trial. In mediation the parties themselves might be present and the session is directed by a mediator instead of a judge.

Trial

If all efforts at settlement fail, the case will be set for trial before a judge or jury—whichever the plaintiff chooses. The parties will present witnesses, cross-examine the other parties’ witnesses, present evidence, and make arguments. At the end, the finder of fact (judge or jury) will enter a verdict for the plaintiff or defendant. If the verdict is for the plaintiff, the finder of fact will decide on the amount of damages.

Arbitration is an alternative to the trial process. Arbitration is similar to a trial, but is conducted before an arbitrator or a panel of arbitrators. In binding arbitration the decision of the arbitrator or panel is as final as the trial court’s verdict. Parties to a lawsuit can agree to enter arbitration and are required to submit to arbitration in some contracts. For example, if you sign a contract with a health care provider that has an arbitration clause, if that person injures you, you may be bound by the agreement to use arbitration. Arbitration is usually less expensive than litigation and may be quicker.

Appeal

Either party can appeal if there was a significant legal error in the trial. To “appeal” means you take the case to a higher court to review any legal errors you think may have been made by the judge or jury. For example, a plaintiff might appeal if he thinks he lost his suit unfairly or would have gotten more in damages if the judge had not refused to admit something into evidence. A defendant might appeal if, for example, she thinks there is a valid legal basis to argue that the award for damages given to the plaintiff was too large.

Collection

When the lawsuit is finished, when an appeal is completed or a verdict entered that isn’t appealed, the plaintiff still has to collect the damages that have been awarded from the defendant. Some defendants are unable to pay damages, and plaintiffs usually name more than one defendant if possible to make sure they are able to collect enough to cover their damages and litigation costs. For example, a teenager driving a pizza delivery car probably won’t have enough personal assets to cover damages from a serious car accident. In that case, the plaintiff may collect from the employer or the employer’s insurance company.

If defendants don’t pay the damages awarded by the court, states have procedures similar to the discovery process that allow the plaintiff to find out where the defendant’s assets are and to collect as much of the damages as possible.

Do you need an experienced personal injury attorney?

There are times when an accident attorney is not needed. This is usually the case when the injuries are very minor and there are no disagreements about who was at fault and who should pay (and what amount should be paid). Often, however, things are not so simple. If you were involved in a more serious accident, you should contact a personal injury lawyer right away. See How a Personal Injury Lawyer Can Help for more information about what personal injury attorneys do and how they can help you you’re your case. If you are looking for a personal injury lawyer, you can find listings of qualified attorneys in your area by going to AttorneyPages.com. If you would like to have your case reviewed by an experienced personal injury lawyer, simply fill out our case evaluation form and an attorney will contact you for a no-cost, no obligation evaluation.

Personal Injury Lawsuit Challenges

The types of personal injury lawsuit challenges plaintiffs face depend on the facts and circumstances of the case. According to personal injury lawyers, some of the bigger challenges might include finding the right person or company to hold liable for what happened and perhaps even, despite clear negligence and causation, actually being able to collect those damages from the tortfeasor. In other words, if the person who committed the negligence doesn’t have any money, there’s no way to collect – leaving the plaintiff with a significant challenge.

Initially, many of the challenges deal with determining and examining the reasonableness or unreasonableness of the conduct which is alleged to be negligent. Just because you might be seriously injured, that doesn’t necessarily mean that someone is at fault for what happened.

So, one of the first obstacles is to determine whether or not the conduct involved is reasonable under the circumstances. That varies depending on where the accident occurred and whether the tortfeasor was someone held to a higher standard of care (such as a doctor), etc. That’s why it’s important to have an experienced lawyer on your side.

Liability Is One Thing; Compensation Is Another

While there are many personal injury lawyers out there who might be able to amble through a case, the fact remains that sometimes the obvious person who you would think would be liable for an injury either may not have the money to pay – or there may be someone else, an intervening person – who also might be liable and can pay. For example, personal injury claims often go hand-in-hand with product liability claims, so the number of possible defendants may be larger than initially realized.

By seeking an attorney who has experience in what needs to be done in order to successfully pursue your claim most effectively can increase your chances of not only get what you’re owed, but getting it in a way that is efficient – so you’re not wasting money and time over years to try to collect it. It’s great to get a million dollar damages award, but if the company can’t pay, then you haven’t really gained anything.

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