If you or someone you love was injured in some way, you may be wondering how to win your personal injury claim. Personal injury claims make up a large portion of the civil claims that are heard each year because people will often be hurt by negligence or other conduct on the part of manufacturers, venues, and service providers. These claims are also the ones that will make headlines because the return on the claims can be huge compared to other civil actions. However, getting that large recovery is not guaranteed, and the preparation for and presentation of a personal injury claim is difficult. Moreover, these claims can be complicated and involve medical professionals, products experts, engineers, and other knowledgeable people to help determine what the cause of the injury was. Yet there are ways that one can prepare for a personal injury lawsuit that can help guarantee that the return is what is needed to begin to make an injured person whole.
This article will look at preparing for a personal injury case in a way that prepares the person to win. First, it will give an overview of personal injury claims and some of the most common types of claims. Next, it will examine the key elements of a personal injury case and describe what is needed to help prove these elements. After this, it will provide several tips for preparing a case to increase the chances of winning the case. After discussing the steps and tips for a personal injury claim pursued by litigation, there will also be some tips to increase a settlement that may arise from a personal injury claim. Finally, the article will wrap up with a discussion of the differences between litigating the case and settling the case. The goal of this article is to help you understand your claim and the process for creating a winning strategy.
Personal Injury Claims:
Before moving much further into a discussion on how to prepare for a personal injury claim, establishing an understanding of personal injury claims is necessary. A personal injury claim is one where someone suffers harm from an accident or injury and that harm was caused by someone or someone else was responsible for it. The person who is injured in the exchange will be the plaintiff and the person responsible for the injury in some way will be the defendant. Because personal injury also often concerns issues with insurable actions, insurance companies for one or all parties will likely be involved as well. The claim is brought to determine what the person who was injured is owed by the one responsible to compensate them for their injury. This can be small claims for medical care for minor injuries and includes injuries up to death.
Most commonly, these actions are based on tort law. Tort law relies heavily on the concept of negligence, or the failure to do something that would protect another that you are obligated to protect. The goal of these cases is to prove that the person who should have done something to lessen the chance of harm or lessen the harm once it began did not act as a reasonable person. The defendant will be seeking to prove that they acted responsibly. Regardless of the type of case, the basic elements will be the same—someone was harmed and that harm was the responsibility of another, whether intentional or negligent.
Common Types of Personal Injury Claims:
Another way to see if a case will be a personal injury case or another kind is to consider several types of common personal injury claims. This list will not be exhaustive, and if you believe you have a case that fits the definition above, it would be best to speak with a personal injury attorney. However, these types will help provide a fuller understanding of what a claim for a personal injury lawsuit may include.
- Intentional Acts: These types of cases are the easiest personal injury to spot. Intentional acts are cases where one person’s intentional actions cause harm to another person’s health or property. This includes things like assault, battery, and conversion. The person will usually suffer direct harm as a result of the action, often in injury to their person.
- Negligence: Negligence, as described above, is where a person should have acted in one way or another and failed to do so, and that failure caused harm to another person. This includes auto accidents and slip-and-fall cases. These are usually the type of cases that are litigated the most heavily.
- Malpractice: Malpractice is a special type of negligence lawsuit that applies to people that hold certain positions where they require trust from their clients or patients. This is most commonly seen in medical malpractice, where a doctor or nurse performs an aspect of their job incorrectly and the patient suffers more harm than was necessary. It also applies to lawyers and how they treat their clients.
- Products Liability: This is another special kind of negligence that applies to producers of goods. When a manufacturer or designer makes a mistake in the way that the product is created or built, they can be held liable for injuries that result. This includes issues like vehicle component malfunctions, regular consumer products, and medical devices. The key here is to identify where the product is defective or unreasonably dangerous.
- Personal Torts: These torts are torts that deal with harm to a person’s reputation or likeness. This includes actions like defamation or unauthorized use when a company uses someone’s image to sell its product. These types of cases are often harder to prove because the damages are more difficult to calculate.
- Dog Bite: Dog bite cases are another special form of negligence. These cases result when the plaintiff is bitten by a dog and the owner of the dog knew or should have known that the dog was dangerous. However, some states have laws called strict liability, which will hold an owner responsible whether or not they knew or should have known of the chance of violence.
- Car Accidents: These are the most common personal injury cases in the United States. When a person is driving carelessly and not obeying the rules of traffic, they can be held responsible for the injuries they cause as a result of their careless actions. These cases are often difficult and involve expert testimony from technicians and doctors.
- Slip-and-Fall: Slip-and-fall cases are another common kind of negligence lawsuit. These cases result when a property owner does not keep the premises safe and another person is harmed because of the failure to keep it safe in some way. These cases will vary greatly between states.
These are just some examples of the kinds of cases that may be brought under a personal injury claim. If your case falls into one of these categories, it may be time to speak to a personal injury attorney.
Elements and Evidence for Personal Injury:
Another important aspect of the personal injury case to understand are the elements. These are the building blocks of the case and will help the plaintiff create a story that shows how they were injured and why they should be compensated for this injury. While there will be some variation on the exact elements depending on the type of case, each case will include these basic elements. The elements of a personal injury claim are (1) duty, (2) breach, (3) causation, and (4) damages. We will discuss each of these in turn, along with the types of evidence that will likely need to be presented to prove each element.
The is one of the core aspects of a personal injury claim. For a plaintiff to recover from the defendant, they must show that the defendant had a duty of some kind to protect the defendant from the type of harm that they suffered. This duty can stem from a special relationship between the plaintiff and defendant, such as a doctor-patient or parent-child relationship. It may also be that a defendant has a duty to protect all people from a certain kind of harm, such as the slip-and-fall cases or others like it. Products producers owe certain duties to their customers, such as the duty to ensure that the product is fit for its ordinary use. This duty is not present in intentional torts.
To establish duty, a plaintiff may present evidence of the special relationship, such as a hospital bill from the hospital that shows they received care from a specific doctor or a deed that shows the defendant is the person responsible for the product. In slip-and-fall cases, the plaintiff will need to establish that the person is the one in charge of the land and that they knew or had reason to know about the danger, such as testimony that the defendant had told someone else that they needed to fix the danger before the plaintiff was hurt.
The breach is what establishes that there was the negligence of some kind in the case. A breach is when the person with the duty does not act per that duty. This can be failing to put a wet floor sign up after mopping a floor in a store or not following the common practice of physicians. It can also be that a defendant created a product that will harm all people who use it in the way it is intended to be used. Any of these actions, or others like them, will be a breach of duty. The core aspect of a breach is a failure to comply with the duty. In intentional torts, this aspect will require the plaintiff to prove that the defendant acted in a certain way with the intent to act that way.
Evidence to support a breach may be pictures of a wet floor in a supermarket or a product that malfunctioned dangerously. Many cases will also include expert testimony from people who are knowledgeable about the subject to prove that the defendant did not act responsibly in the situation. In medical malpractice cases, they will often bring in medical experts to testify about how physicians will typically perform the service to their patient and how this specific doctor performed the service in a way that was not standard practice and potentially harmful for the plaintiff.
Another aspect that a plaintiff must prove is that the action or breach of the defendant caused their harm. This can come in two ways. First is the but-for cause, which means that the harm would not have happened without the breach of the defendant. In car accident cases, this will be that the harm to the plaintiff would not have happened if the defendant was driving reasonably. The plaintiff must also prove that the action is close enough to the injury that is the main cause of the injury. This means that the action cannot start a long string of events that may have happened without the action that caused the injury. This aspect is much harder to understand, so it is important to speak to a personal injury attorney about your claim. Causation is also required in intentional cases.
Evidence to show cause will include things like testimony that the person who ran the red light hit the person, who would have not crashed their car if the person had not run the red light. It can include recreations of a crash site or where a person fell to show that someone would not have fallen or been hurt without the failure to follow the duty. This evidence will often be testimony, especially expert testimony detailing the direct effect the breach had on the injury.
Damages or Harm:
The final piece is that a plaintiff must prove that they suffered actual harm. This will often involve the actual physical injury that they suffered or the loss of their property or reputation. It can also include medical bills and insurance costs that were incurred as a result of the injury. Some torts also allow the plaintiff to collect for emotional damages, such as when negligence was particularly egregious and the plaintiff suffered severe depression or other mental distress as a result of the injury. A plaintiff that suffers little to no harm, even if there was negligence or intent on the defendant’s part, will likely not recover much from the lawsuit.
Evidence to show actual damages will often include hospital bills or estimates from experts on what the property that was lost will cost. It can also include bills for therapy or prescriptions if the plaintiff is claiming emotional damages. Finally, it may include pictures of the harm or recreations of the harm. It may also include testimony from others that know the plaintiff that demonstrates how the harm changed the plaintiff’s life and personality.
Every personal injury will have the elements above in some capacity. Some of the special types of suits will include specific rules as well, such as the standard practice of physicians or the laws surrounding dog bites. In intentional torts, the duty and breach are replaced with an action done with intent. However, understanding these terms and the elements will help you prepare and evaluate your case for a potential personal injury claim. Starting by mapping out the elements and your claim can give you a strong picture of what will happen.
Tips to Prepare for Litigation:
If you believe that you have a strong personal injury claim, there are some tips that you can follow to ensure that you are the most likely to complete the suit in a way that is beneficial for you and compensates you for your harm. These tips include:
- Check the Statute of Limitations: Each state will have a statute of limitations on certain kinds of cases. This means that there is a specific time from the injury that the plaintiff has to bring the claim. Each case will be different, so depending on your claim, you will need to make sure that you are within the time frame.
- Find an Attorney: Personal injury cases are complex, often involving details that are specific to a certain field and are unknown by people outside of those fields. They are also long and tedious processes. Personal injury attorneys are often skilled at personal injury lawsuits and will be vital teammates for your suit. Many personal injury attorneys also work on a contingency basis, meaning that they will take a portion of the recovery as their fee, rather than collecting fees throughout the case, which makes them more affordable.
- Be Honest with Your Attorney: As stated above, attorneys are a vital part of the team for litigation, and they need to have an accurate understanding of the case and the facts. It is better to tell your attorney about the possible weaknesses of the case so that they can prepare for them rather than keeping them to yourself and surprise the attorney.
- Find an Honest Attorney: Similar to the scenario above, it is important to find an attorney that is honest with you about the strengths of the case and looking to find any way to help you succeed. Be wary of attorneys that are promising huge rewards before doing the research.
- Avoid Insurance Providers: Insurance providers, especially the defendant’s, will often try and settle the case before the plaintiff has time to fully talk through their options. Do not commit to anything with insurance providers before speaking with an attorney.
- Stay Quiet about the Case: To protect the case and your recovery, it is best to avoid talking about the case, especially with people that are around the defendant. If you say something that may impact your case and the defendant finds out about it, it can be used in court.
- Know your Evidence: Find the evidence that you will need to use and document it early on. Making sure that you have copies early on will help you avoid scrambling for evidence at the end of the discovery period.
- Talk to a Medical Professional: If there will need to be any medical evidence presented, it will be helpful to find a medical expert early who can testify to the injury or to malpractice. Having a doctor on your side will be crucial to winning the case.
- Be Patient: Resolving any type of civil case will take time. Knowing this will help you to trust the process for a resolution and keep you from worrying when you are waiting for a result.
- Know your Options: Find all of the possible outcomes and the best- and worst-case scenarios. Know where the other side will find holes in the case and be prepared to address them. This can also help you find a possible outcome for a settlement discussion and possibly resolve the case with a guaranteed outcome.
- Keep Track of Recurring Damages: In some cases, there will be damages that continue to occur after the initial injury, such as physical therapy or multiple surgeries resulting from the injury. It can also be the loss of wages based on the injury. If these damages are connected up to the initial injury, you may be able to collect on these damages as well.
These tips will help you prepare for a litigated personal injury claim as well as set you up for a settlement agreement that is a good outcome for your case.
Considerations for Settlement:
As mentioned above, there are cases where a settlement may be the best option for a resolution. Several considerations should be made when determining if a settlement agreement is a right option for you. These considerations include:
- Best Outcome: It is vital to know the best outcome you may reasonably collect if your case goes through litigation. This can help you determine the upper end of the settlement range.
- Worst Outcome: Knowing what the worst possible outcome is in litigation, which may be as low as zero if it is not a good case, is important to establish the bottom edge of your settlement range.
- Likelihood of Success: It is also important to consider the likelihood of success that you would have on the case for your best outcome to determine how likely you are to receive a better judgment from the case versus a settlement agreement.
- Need for Control: With litigation, there is never any guarantee of recovery, especially because juries are often unpredictable. If you need to have the guarantee of a sum of money, it may be helpful to settle rather than litigate the dispute because it allows you to control the outcome.
- Defense’s Plan: Understanding what the defendant may need and how they feel about the case will give you a good basis to see if they are trying to avoid the major payout they will have to make with a jury without regard to your needs or if they are attempting to resolve the matter.
Understanding your case is the best way to determine whether you have a good case for a settlement agreement or whether it should be taken to a jury.
Settling v. Litigation: Which One to Choose:
Litigating a case before a judge or jury is your best chance for recovering the headline-making amounts of money that are occasionally paid out in personal injury suits. However, it is also less of a given outcome and can result in the opposite result of what you need. Knowing when your case is a good case to take to litigation depends on several factors. First, how comfortable you are with the unknown and lack of control. You will not be able to control the outcome of litigation. You can with a settlement. Second, how likely you are to succeed at trial. While the outcome is unpredictable, some cases will be fairly certain to result in some sort of compensation. If the settlement option will lower that amount or is on the low end, it may be worth it to let a judge decide. Finally, you need to consider whether the amount would adequately compensate you and pay for your expenses. If the defendant is unable to offer more, it may be best to go to litigation.
A personal injury claim is often a high-stakes, high-emotion affair that is complicated by medical and technical information. Bringing a personal injury claim can feel confusing and overwhelming, but accomplishing your goal of recovering your loss is attainable with the right mindset and knowledge. Knowing what you need to prove and how you can prove it is vital to succeeding. It also takes patience and evaluation of the offers that may come your way. Personal injury claims do not need to be intimidating, and hopefully, this article helped you feel ready to win your personal injury claim.