A personal injury case is a type of lawsuit in which a person sues someone else for negligently or intentionally injuring them. “Personal injury” encompasses many different kinds of cases, including medical malpractice, slip-and-fall cases, automobile accidents, and any case in which you were injured because someone else was at fault. Each personal injury case will be different. But the legal issues turn on whether the defendant was at fault, and whether the defendant’s action or inaction caused your injury. By proving both, you can be compensated for the pain and suffering you have endured.
Document the accident. To successfully bring a personal injury lawsuit, you will need to establish that the defendant injured you. Accordingly, you need evidence of what the defendant did and what injury you suffered as a result.
- Make sure that you write down exactly what happened before, during, and after the accident. Writing everything down when it is fresh in your mind will ensure that you don’t forget crucial details.
- Take all circumstances into account. Write down the time of day that you were injured, the weather at the time you were injured, and who was present when you were injured.
- Also note how the person who caused your injury acted afterward. Did he apologize or admit fault? Did that person offer to pay your medical expenses? While not all of these statements may be admitted at trial, they could be used for a settlement negotiation.
Find witnesses. If you are able to move around after the injury, look for people nearby who may have seen what happened. Additionally, if you were with a friend or family member at the time of your injury, ask them to look for any people who saw the injury. You shouldn’t wait; memories fade quickly.
- After locating witnesses, ask them if they would be willing to make a brief statement about what they saw.
- Write down the statements and contact information for each witness. Get full names, address, and telephone numbers.
- If your case does go to trial, witness testimony will be critical to establishing your case. Third party witnesses are often trusted by jurors because they are not invested in the outcome of the case.
Photograph the scene of your injury. Try to get photos of the area where you were injured as soon as possible. Photos are especially important if the area where you fell is dangerous on its own, for example, a missing railing on a stairway.
- You also want to photograph the dangerous condition before the property owner has an opportunity to fix it. If you can’t get out to the scene of the accident, ask a friend or family member to go.
- Take photos from a variety of angles. It may be useful to photograph the area as it was when you were injured. For example, if you were injured at night, then take photographs of the scene at night.
Photograph your injuries. Also take photographs of your body to document the injuries you have suffered. Lawsuits can take months, if not years, to get to trial. By that point, your injury could look much different, or not be physically visible.
- Your injuries will also appear more dramatic soon after the accident. Photographs of this type can make a strong impression on the jury.
See a doctor immediately. Even if your injuries aren’t severe, you should still see a doctor. Some injuries will not be immediately visible, but your doctor will know what to look for. Your doctor’s visit will also create useful medical documentation. In particular, your doctor will help establish “causation”—that the defendant’s actions caused your injury.
- When choosing a doctor, you should choose a traditional M.D. and stay away from alternative medical practitioners and chiropractors.
- Ask for copies of records, diagnoses, and any reports.
Follow your doctor’s treatment. One defense to personal injury claims is that the plaintiff aggravated her injury through her own conduct after the accident. Accordingly, you should always follow your doctor’s prescribed treatment. If the doctor orders bedrest, stay in bed.
- You can rest assured that the defendant will find out what treatment you were prescribed and will try to find evidence that you have not been following.
- A failure to mitigate your damages will not completely bar recovery if the defendant is at fault. However, it can lower the amount of compensatory damages you recover.
Keep a diary. In a notebook, jot down how you are feeling every day. Note your mood, energy level, and ability to sleep. Doctors often will ignore this information, so you will want to create your own record to use as evidence at trial.
- Also note any changes to your relationship with your spouse, including changes in your sex life. You can be compensated for this “loss of consortium.”
Hiring an Attorney
Make a list of attorneys in the area. You can find personal injury lawyers near you by looking in your local yellow pages or by running a search of an online phone directory.
- You may be able to find personal injury lawyers in your area by using your favorite search engine to search for “personal injury attorneys in [insert your state]”. If you live in Alabama, for example, you would want to search “personal injury attorneys in Alabama”.
- You can also find a local personal injury attorney by visiting your state bar association’s website or calling and asking for a referral. Visit the website for the American Bar Association to find your local or county bar association.
Get referrals. You should talk to family, friends, and co-workers who have brought their own personal injury lawsuits and question them about their attorney. Ask how easy it was to communicate with the attorney, her courtroom style, and how prepared the attorney was.
- Also check online reviews. Many websites offer free reviews of businesses. Some places to look for lawyer reviews include: Find Law, Avvo, and Yahoo Local.
- Look at disciplinary records. State bar associations keep public records about complaints and disciplinary actions taken against attorneys licensed to practice in the state.
Review each attorney’s website. If you do not have a website address for any of the attorneys, run a search for their name, phone number, or address in your favorite search engine and see if you can locate one. Then review each attorney’s website. Some things that you want to look for include:
- Grammar and spelling. If you see a lot of grammar and spelling errors, maybe that attorney is not for you. An attorney should be able to use proper grammar and a spell check, or ensure that those writing content for his or her website can.
- Background information on the attorney. Attorneys who have been working in personal injury law for many years are probably better at it than those who have just started in immigration law. Typically, you should look for a personal injury attorney who has at least three to five years of experience handling personal injury cases.
- Identify personal injury specialists. Some states allow attorneys to state an area of specialization and to list any certificates they may have earned in the specialty. This information should be included on an attorney’s webpage.
Meet for a free consultation. Most attorneys offer free consultations. You should bring your medical records and be prepared to talk about both the incident and your injury. The attorney will clarify whether you have a strong case by analyzing the following factors:
- Permanence of injury. An injury that is permanent is more impressive to a jury than a temporary one.
- Your medical history. A pre-existing injury can often reduce the value of a claim, particularly when the injury occurred to the same body part.
- Your criminal record. A plaintiff with a felony conviction is less sympathetic to juries.
- The defendant’s assets. If the person who injured you has no money or insurance, then bringing a lawsuit could be fruitless since you can’t recover any money.
- Whether the injury was intentional. If the defendant intentionally harmed you, then you can seek “punitive damages.” Ordinarily, damages are meant to compensate you for the injury you suffered; but punitive damages are meant to punish the defendant for willful and wanton conduct.
Discuss fees. The vast majority of personal injury attorneys will work on a contingency fee basis. Under this arrangement, the attorney doesn’t get paid unless you win. If you win, the attorney will typically get 30-40% of the jury award.
- You will still be responsible for costs associated with the litigation. Costs include filing fees, photocopying and mailing, transcription services, and fees for expert witnesses. They can run to several thousand dollars. You should talk with the attorney about how these fees will be billed.
Ask for a referral. If for some reason the attorney cannot take your case, then ask if he knows any experienced personal injury attorneys you could meet with.
- Some attorneys only represent defendants, or the attorney may have a conflict that prevents her from representing you. Unless the attorney says otherwise, do not assume that you have a weak case simply because the first attorney you meet with declines to represent you.
Preparing Your Case
Gather evidence of economic loss. You can be compensated for lost work wages as well as for medical care. You should gather evidence that shows how much you were being paid on a job, as well as the total amount of money spent on health care.
- If your injury is irreversible, then you can recover for future lost wages as well as for continuing medical care.
- You may also recover damages for pain and suffering, as well as loss of consortium and loss of enjoyment.
- You can also recover for any property damage. If someone struck your car, then you can recover for damage to the car.
File the complaint. To begin your lawsuit, your attorney will draft a complaint and file it with the court. The complaint lays out the facts as alleged and the legal theories that support the lawsuit. It also states the relief that you are requesting.
- In a personal injury suit, your complaint will typically allege that the defendant’s “negligence” caused your injury, meaning that the defendant did not exercise the required reasonable care.
- After filing the complaint, your attorney will also serve a copy on the defendant. Be sure to get a copy for you records as well.
Engage in discovery. Once a lawsuit has begun, both parties are able to request evidence from each other in a process called “discovery.” Parties request documents in each other’s possession or control. They can also request that the other party answer questions, either orally or in writing.
- Your lawyer will probably contact you when she gets the defendant’s discovery requests. If your attorney does not already have copies of medical records and pay stubs, then you may have to turn copies over to the defendant.
- Whenever your attorney requests information, always be prompt in reply. Delay only prolongs the lawsuit.
Sit for a deposition. Each party can request that witnesses answer questions orally during a deposition. Depositions are typically held in a lawyer’s office. The witness is sworn before the questioning and a court reporter is often present to record the testimony. As the plaintiff in the suit, you should expect to be deposed.
- You can prepare for your deposition with your lawyer by undergoing a mock deposition. During the deposition prep, your attorney will question you about the incident and your injury. Ideally, she should practice being alternately aggressive in her questioning as well as laid back.
- During the real deposition, be sure to speak carefully and slowly. If you do not know an answer, then say so. Because statements can be used against you in court, it is important not to guess when answering a question.
- Do not engage in unnecessary chit chat with opposing counsel before, during, or after the deposition. Normal pleasantries (“How are you?”) are sufficient.
Undergo a medical examination. When you claim that you have been injured, the defendant’s insurer can often request that you attend an independent medical exam (IME).
- Understand the purpose: the defendant does not want to pay you money for your injury if he can avoid it. By challenging the severity of your injuries, he can reduce the amount of damages or avoid liability altogether. Try to stay positive and don’t take a doctor’s skeptical attitude personally.
- Expect questions about your medical history and lifestyle (do you smoke, drink, or do drugs? do you engage in dangerous activities?). Answer all questions truthfully, but don’t volunteer information.
- Avoid allowing the doctor to take x-rays or administer psychological tests. If the doctor insists, refuse and immediately call your lawyer.
- Be sure to ask for a copy of the report.
Defend a motion for summary judgment. Depending on the facts of your particular case, the defendant may file a “motion for summary judgment” after the close of discovery. In this motion, the defendant will argue that there are no genuine issues of material fact for the jury to decide and that the case can then be decided by the judge on the law only.
- As plaintiff, you can also file a motion for summary judgment, but it is rarely granted. If you are suing because the defendant was negligent, then it is almost always a question for the jury whether the defendant exercised reasonable care.
- Discuss the possibility of a summary judgment motion with your attorney. Also ask how she plans to defend against one.
Consider settlement. If the defendant loses a summary judgment motion, then he faces more pressure to settle before letting the case go to a trial. The defendant will probably reach out to engage in settlement talks. Even if the defendant doesn’t initiate settlement negotiations, you can always suggest them yourself.
- In settlement negotiations, both parties meet with their lawyers present. Your lawyer should have a solid idea of how much your injuries are worth. If he hasn’t already told you, ask him.
- Discuss beforehand what your lawyer’s strategy is. As the plaintiff, you will want to aim high and then expect the defendant to counter with a lower amount. The attorneys will talk with each other about the relative strengths or weaknesses of the case as they negotiate.
- There are many benefits to settlement. First, you are likely to receive money faster in a settlement than you would by going through a trial. Early settlement also reduces the costs of the litigation. Furthermore, you reduce the risk of losing at trial, in which case you would get nothing.
- Your attorney cannot accept a settlement offer without your consent. Only you can decide when and if to accept a settlement offer. Also, your attorney must let you know of any settlement offer, whether he agrees with the offer or not.
Consider mediation. Mediation is a dispute resolution technique where the two parties meet with a neutral third party (the mediator) who works to find areas of agreement between the parties. If the process is successful, the two parties will mutually agree to a fair settlement.
- In mediation, each party can speak directly to the mediator in the presence of the other party; directly to each other; and directly with the mediator in private. After gathering all of the information, the mediator helps nudge the parties to a settlement they can both agree on.
- Sometimes having an outsider look at the case allows the parties to see the issues more clearly.
- To find a mediator, call your local courthouse or bar association and ask if they have any mediation programs. Mediators usually charge for their services, but any costs are likely to be cheaper than long and drawn-out litigation. The cost of mediation is often split between the two parties.
Going to Trial
Select a jury. The first thing you will do is select a jury. From a pool of jurors, the judge will call up a panel of about 12. The attorneys will then ask questions of the jurors in a process called “voir dire.” The purpose of voir dire is to uncover which jurors can be impartial and which are biased.
- The judge may excuse some jurors on her own initiative, but attorneys can challenge jurors for cause, such as admitted bias.
- Attorneys are also given a set of “peremptory” challenges, which allows them to strike jurors without giving a reason.
- You may also seek a bench trial. Here, the judge will listen to the evidence and render a verdict. Overwhelmingly, attorneys select a jury trial. However, you should discuss this option with your attorney.
Deliver an opening statement. During the opening statement, each side outlines the proof to be presented to the jury during the trial. Opening statements are not evidence. Instead, they alert the jury to what each side expects the evidence to prove.
- Your attorney’s opening statement should briefly and clearly lay a roadmap for what evidence she will present during trial.
Present evidence and question witnesses. As the plaintiff, you will present witnesses first. As each witness testifies, the side that called the witness asks questions in direct examination. Then the side that did not call the witness has an opportunity to ask questions in cross examination.
- Physical evidence, such as documents, weapons, or photographs are admitted into evidence and numbered for identification.
- During the trial, if one attorney objects to a question, he presents his objection to the judge. These are questions of legal technicality and may be argued out of the jury’s presence.
Testify. You will likely be called to testify. As with the deposition, your attorney should have helped you prepare by doing a mock examination and cross-examination.
- Remember to remain calm on the stand and not be rattled.
- Answer questions clearly and look at the jurors. Do not answer with a nod or sounds that aren’t words (like “uh huh.”)
- Look the part. Dress professionally: wear conservative colors (black or blue) and opt for dress slacks and a freshly-pressed dress shirt or blouse over jeans and a T-shirt. Avoid flashy jewelry.
Deliver a closing argument. During closing argument, the attorneys summarize the evidence and try to persuade the jury to find in favor of their client. The plaintiff has the burden of proof and therefore has the opportunity to open and close the arguments.
- You should expect your attorney to refer often to your injury, so don’t be surprised if jurors suddenly spend a lot of time looking at you during the closing argument. An effective closing argument often appeals to the jurors’ emotions. They may be brought to tears if your attorney does his job right.
- Your attorney may want to run his closing argument by you. Feel free to give your honest input.
Wait for the verdict. After closing arguments, the judge will read the instructions of law to the jury, which define the issues and informs the jurors of the law that governs the case. The jury then retires to deliberate.
- Juries typically do not have to reach unanimous verdicts in civil lawsuits like personal injury cases, at least in state court. Many states now allow a plaintiff to recover if a super-majority of jurors decide for her, typically between two-thirds and five-sixths of jurors. For a civil jury with 12 jurors, you may only need between 8-10 jurors to agree with you.
Sources and Citations
Categories: Civil Litigation
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