Although most personal injury cases are settled long before trial, plaintiffs who push for trial usually lose. If the cause of your injury is embroiled in a gray muss that makes it difficult to reach any reasonable settlement, you need to understand the technical aspects of the law that are at play. If attorneys are unwilling to take your case on a contingency agreement, you should also review the technical elements of the law before funding your own litigation. They may be trying to tell you something regarding perceived weaknesses in your case by giving you the cold shoulder if they don’t simply come right out and say it.
Technical Elements of Personal Injury Law
Negligence
Personal injury law is a specialized field that attempts to restore and compensate victims of injury due to another person’s or corporation’s negligence.
Negligence is established in professional malpractice actions by the expert opinion of a licensed professional in the field who has similar experience and credentials as the offending party. In many other cases, negligence is established by common sense failures that would infer the culpability of the offending party.
Negligence can also be established by traffic laws in auto accidents. If a driver is intoxicated, speeding, driving recklessly, or fails to upkeep their motor vehicle, these would all be actionable lawsuits if that negligence was the proximate cause of the accident.
Proximate Cause & Duty of Care Relationship
When it comes to proximate cause, things are not always so cut and dry in reality. There may be multiple proximate causes that play various roles in the progression of an injury. This is why it is important to consider the duty of care. In order for someone to be held liable for an accident, they must be in a position where they owe you a duty of care. When it comes to motor vehicle accidents, all drivers owe a duty of care to everyone on the roads, which requires them to follow the rules of the road and to drive safely.
A doctor, who provides you with help regarding your medical problem, as a friend, by suggesting that you try a new therapy or treatment, does not owe you a duty of care. If you are not a client of the doctor, he is not acting in a professional capacity and cannot be held liable for medical malpractice.
Duty of care obligations are generally created by some form of contract. When you sign up for services at a hospital or even at an auto repair shop, the businesses are creating a contractual obligation. The scope of liability, however, may be limited by indemnification waivers if they are plainly written in the documents. Signing for your driver’s license, getting a passport to enter the U.S., or simply operating a vehicle on U.S. roads triggers other implied or express contractual obligations.
An attorney does not only owe their clients a duty of care for completing the jobs that they are contracted to undertake, but also owe their clients a fiduciary duty to protect them from negative legal consequences. This duty is broader but can be a basis for personal injury.
Injuries
Filing a lawsuit without any injuries is inherently frivolous. If there are no injuries, there are no damages to award. Although some civil lawsuits are focused on prospective relief and injunctions to prevent injuries from occurring, these are not, per se, personal injury cases.
Although injuries do not have to be physical, there has to be a plausible theory that you have incurred emotional damages or legal damages as a result of the negligence. If your attorney fails to file a document to appeal a lawsuit, you would have to show that you would have won on that appeal in order to collect malpractice damages.
Furthermore, when considering emotional injuries, the objective reasonableness of suffering damages in relation to the type of injury often comes into play. This means that you can’t ordinarily sue for having an unforeseeable reaction to someone patting you on the back, for example. Yet, if that actor had intimate knowledge of your injury and did this despite your exhortations, that would be another matter altogether.
Contributory & Comparative Negligence
If your lawsuit satisfies all of the above elements, then you may still be denied damages or may have your damages reduced if a jury finds contributory or comparative negligence. While these two theories are similar, comparative negligence means that you are at least 50 percent responsible for your own injuries and, therefore, not entitled to any compensation. When it comes to contributory negligence, a jury may find that you could have mitigated the extent of your injuries if you had taken reasonable measures.
An example of comparative negligence is when the cause of the accident is not just the defendant’s failure to observe a stop sign but also your failure to yield. This formula would consider the proximate cause and whether “but-for” either of the actions the accident would have occurred.
This is an example of a case where a jury may find contributory negligence – a case where you are less than 50 percent responsible for causing an injury. The defendant was driving drunk but the blackbox data of the car’s crash computer also proves that you were speeding 10 miles over the speed limit. Although the accident was slightly more severe because of your speed, the intoxicated driver’s delayed motor reactions were objectively reckless.
Here, a jury could compare the severity of the violations under the law and determine that drunk driving is statistically and legally far more serious than driving 10 mph over the speed limit. A skilled attorney could even argue that their client was not consistently driving at this speed but had merely sped up to avoid the impending accident. Nevertheless, the jury may find you 10 percent responsible for speeding and the drunk driver 90 percent responsible for driving drunk – and they will still award you significant damages.
Conclusion
Therefore, if your case makes all the elements of a personal injury accident, you can still collect damages and win at trial if you were partly to blame. However, a good personal injury attorney will try to polarize the events to minimize any evidence that you were at fault to any degree. Yet, the existence of substantial questions of fault, where you shoulder much of the blame, may be too weak for a trial. In these cases, an attorney may decide that it is better to settle for a very low sum that simply saves the defendant parties the expenses of litigation.
There are also some tricky cases where a person’s injuries are magnified by their common sense failures to treat them. As a general rule, you should discuss any complex factual issues with a personal injury attorney to work them out, because these kinds of fault determinations are very case-specific.