Negligence & Personal Injury Law
Do I need a lawyer?
Probably. If the party at fault is willing to voluntarily pay acceptable damages, it is possible to settle a case without a lawyer, but that is very rare. Lawyers serve a valuable function in these cases, including: discovering the evidence so you can prove who was at fault; helping the injured party fully assess the nature and extent of damages; assisting in the proper evaluation of the claim B both from a liability perspective (who was at fault) and from a damage perspective (what is an appropriate compensation for the injuries that have arisen).
How do I find a lawyer?
The most efficient method to find a lawyer is to contact a lawyer referral service in your county or to utilize the services of ilawyer - we can arrange for a quick, convenient and cost effective referral online. Simply click here to return to our home page and choose your county. It only takes a few seconds and you will be matched up with a practitioner who specializes in the appropriate subject area relating to your case. There is no charge for the first consultation if it is a personal injury case.
How are fees determined in personal injury cases?
Usually, personal injury cases are handled on a "contingency fee" basis. This means that your lawyer will advance the costs of the case and will only be paid if there is a recovery by way of settlement, verdict, or judgment. A common arrangement is for the attorney to receive one-third of the net recovery after recovery of costs.
What if the injured party is a minor?
If the injury party is under 18, the courts will supervise the arrangement between the plaintiff (injured party) and the lawyer to make sure it is fair. The case will be prosecuted by the minor's parent or legal guardian, who will be acting as a "guardian ad litem" - a special guardian for the special purpose of pursuing the litigation. Any settlement will have to be approved by the court, and all legal fees will also have to be approved by the court.
How soon must a lawsuit be filed? What is the statute of limitations?
The amount of time you have to file a suit varies greatly from state to state, and often also depends on the type of case and who the defendant is.
This period of time that you have to file your case is commonly called the statute of limitations. It means that if the case is not on file with the court within the period of time following the date of the accident (injury), the claim is barred. Sometimes there are exceptions to these blanket rules, so consult an attorney for details; but remember: the time limits are usually strictly imposed and the case should be filed in time. If your case has not been filed yet, you should talk to a lawyer in the state where you were injured to find out when your statute of limitations expires.
Do I have to file any papers before going to court?
Possibly. For example, if your claim is against a governmental entity, you may be required to file a governmental liability claim. Such claims often have specific time limits (in California, for example, you must file a governmental claim within six months of the date of the injury, or else you cannot sue the governmental entity responsible for causing the injury. Check with your lawyer to make sure any claim procedures are complied with!
How are damages calculated?
There is no set formula, but there are several components of any damage claim. The first and most basis component is the "out of pocket" loss, also referred to as special damages. This part of the claim consists of the money that has actually been spent because of the injury - hospital and doctor bills; physical therapy; medical devices; lost earnings; specific property damaged (a wrecked auto, for example). A second component is what lawyers call "general damages." These consists largely of "pain and suffering" - the intangible harm that results from any injury. Examples include physical pain that disrupts a person's normal life; inability to participate in sports, hobbies and other common lifestyle activities; physical difficulties encountered in earning a living; psychological harm (emotional trauma); loss of consortium, love, comfort, support. Often times, the general damages claimed in a case are several times the amount of the special damages, but there cannot be a set formula because each case is unique and juries tend to react differently to different injuries. For example, in the same auto accident one person may suffer from facial disfigurement, while another may have a broken wrist. There is different trauma associated with each injury, and hence a different evaluation of general damages, or pain and suffering.
How do I document my damages?
The first and most basic tip is to keep copies of all medical bills. These are the essential evidence of out of pocket medical damages. Wage loss can be documented with pay stubs and related business records. Pain and suffering is proved differently: the injured party testifies about the problems he/she is encountering, and sometimes family members and friends testify, too.
How does insurance come into play?
Usually you make a claim against the insurance company that provides coverage to the party at fault. This is called a "third party claim" because you are, in essence a "third party" in so far as the other side's insurance policy is concerned. You may also make a claim under your own (first party) medical insurance and property insurance policies. This is a "first party" claim because, under these policies, you are the party insured and, therefore, you are the party to be covered. If your own carrier pays expenses such as doctor/hospital bills or auto repair bills, they probably have a right of reimbursement against the third party who caused the damages. Your insurance carrier may demand that you seek reimbursement from the offending party if you have filed a case against that party; and most policies require the insured to notify the carrier if such a claim has been filed, and further obligate the insured to keep the carrier advised as to the progress of the claim.
What is the role of state aid (Medi-Cal benefits)?
It is much like a private insurance policy. If you receive state assistance (such as state paid medical benefits), the state may have a right of reimbursement from the party who actually caused the accident. Often, the governmental entity providing the assistance will file a lien against your personal injury claim and will have to be paid out of the recovery. IT is often possible, however, to negotiate with the state agency and reduce the amount that must be repaid.
What if the person who caused the injury has no insurance?
This can be a problem, especially if he person has no sizeable assets. Usually, we look to insurance to cover huge losses, such as when serious injuries are caused by negligent drivers. But if there is not insurance, you can only look to the guilty party's assets. If they are not sufficient to provide a proper recovery, the injuries may not be compensated.
Will a person's insurance always provide funds to compensate persons injured him/her?
Not necessarily. In order to recover, you must show that the other party was at fault. But there may be exceptions to insurance coverage even if the other party is insured. A classic example is an offending party who acted with malice or who intentionally injured the plaintiff. In that case, there may be an exclusion in the insurance policy that prohibits coverage. Also, there may be a state policy that prohibits insurance coverage for intentional acts. Again, the best thing you can do in these situations is consult with a knowledgeable attorney about your rights.
What if the person at fault files for bankruptcy?
Personal injury judgments are generally discharge able in bankruptcy. An exception may arise if the offending party acted with fraud or malice. If you are facing a party at fault who is filing (or threatening to file) for bankruptcy, you should definitely consult a bankruptcy specialist for advice.
If I win a judgment or get a settlement, do I pay taxes on the money?
To the extent a recovery provides compensation for something that was lost, the answer is no. There is an Internal Revenue Code section that exempts personal injury recoveries from taxable income. But there are exceptions: to the extent the recovery provides you with lost earnings, that portion of the recovery may well be taxable. One thing an attorney can assist you with is the proper structuring of a settlement to make sure that the recovery is not taxed.
Do I get all the money at once, or is it spread out over time?
It depends. Most recoveries are paid in one lump sum. Sometimes (especially in the case of a minor, or in the case of a catastrophic injury), the recovery will be "structured," or spread out over time. One advantage to a structured settlement is that it preserves the recovery over a long period of time, whereas a lump sum recovery can be lost if not invested wisely. The issue of whether to pursue a lump sum or a structured settlement is a personal issue that should be evaluated by both lawyer and client carefully. It usually doesn't arise unless there is a major injury and special circumstances call for spreading out the payments.
How do I know if (when) my case should be settled?
The fact is that well over 90% of all cases settle before trial. Sometimes it is the immediacy of an approaching trial that prompts defendants to carefully assess the case and cut the risk of loss by settling. When to approach the other side for settlement discussions varies from case to case, but you should know that in almost every jurisdiction, courts have a program that requires face to face negotiation of possible settlements prior to trial. Indeed, many jurisdictions require either arbitration or mediation before they will even assign a trial date to a case. One thing to keep in mind is that it is imprudent to attempt a settlement until a person's injuries have stabilized and the treating doctor knows the full extent of the injury and the potential recovery. Moreover, you cannot begin to negotiate a proper settlement until you know all the medical costs, future wage loss (if any) and the time required for a recovery. All of this information will be developed by your lawyer, and he/she will communicate the nature and extent of your injuries to the other side, usually with a lot of help from you. One reason to settle a case is to avoid the risk of a trial and an adverse result. For the injured party, a settlement avoids the risk of losing at trial and getting nothing, or less than anticipated. For the defense, a settlement "caps" the loss exposure and avoids a judgment that is more than the amount of the settlement. It is a common rule of thumb that a plaintiff takes less in settlement than he/she would win at trail (the old adage, 'a bird in the hand is worth two in the bush' rings true here), while the defendant usually is willing to pay less to settle out of court than they fear losing after judgment.
What are punitive damages and when can they be recovered?
Punitive damages are assessed against parties who act willfully, with malice, oppression or fraud. It takes egregious conduct B conduct that shocks the conscience - to support an award of punitive damages. Punitive damages are designed to punish the wrongdoer - hitting him or her with the proverbial "big stick" so they don't misbehave again. In cases where punitive damages are assessed, the court looks in part to the wealth of the defendant to determine just how big a "stick" to hit the defendant with. A fine of $10,000 may mean nothing to a billionaire, while it might bankrupt a modest wage earner. In many states there are special procedures that must be followed before punitive damages can be assessed, or discovery made into a party's financial resources. In California, for example, the plaintiff must make out a "prima facie" case, demonstrating to the court that there is evidence to support a punitive award, before there can be discovery into a person's assets, or presentation of argument on punitive damages.