Do I Have a Personal Injury Case?
There are several factors that can make or break a personal injury case.
If you've been seriously injured in an accident because of another person's negligence, you may be wondering whether you have a "good" case to pursue compensation from the other party's insurance company.
The answer can be complicated. If you are injured by another individual, corporation or government entity, you are legally entitled to collect monetary compensation in an amount suitable to cover your expenses and damages.
To successfully secure the full compensation you deserve, you must demonstrate that your injuries are real, that they were caused by the accident, that you suffered hardships beyond your medical costs, and who was at fault (or what proportion of fault they are responsible for) in the accident.
There is more to figuring out whether you have a solid personal injury case than simply proving that another person caused you harm. Below you'll find the four basic requirements for building a solid personal injury case.
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The Four Tent Poles of a Personal Injury Case
If you're wondering whether you have a strong enough personal injury case to pursue compensation, it's likely that you do. To successfully secure and maximize your compensation in a settlement or in court, you'll need to address these four concepts:
1) Duty of Care
You and your attorney will need to demonstrate that the at-fault party had a legal responsibility to look after your safety. For example, drivers' duty of care requires them to observe caution when cyclists or pedestrians are present, even if that means travelling slower than posted speed limits.
The at-fault party's duty of care in your particular accident situation may be clearly and overtly addressed in your state's Motor Vehicle Code, or your lawyer may have to dig deeper, using legal precedent from prior court judgments.
2) Breach of Conduct
Once a duty of care is established, you will need to demonstrate that the at-fault party either willingly or unwillingly violated it. For example, if a driver ran through a stop sign, or failed to yield the right of way while you crossed the street, they clearly breached their duty of care.
3) Causal Effect
Even if an at-fault party had a duty of care to protect you and they breached that duty, this may not be enough to build a successful personal injury case. You and your attorney must prove that that breach of duty caused or contributed to your injuries.
In addition to proving that the at-fault party directly contributed to the accident in which you were injured, you need to demonstrate that your financial losses and damages related to your injuries were substantial. The key to proving damages beyond medical expenses is to present evidence that your life was adversely affected by your injuries..
What Can You Seek Compensation For?
If you've been injured in an accident, you can most likely claim:
Some losses can be more difficult to prove, but nevertheless constitute legal damages for which you can also receive financial compensation, including:
Legal Restrictions Placed on Your Personal Injury Case
Known as a "statute of limitations", many states place restrictions on how long a victim has to file a personal injury case after an accident has occurred. These deadlines vary by state and by factors such as whether the party at fault is a government entity.
A good rule of thumb is to file your claim or lawsuit, or hire an attorney to handle it for you, as soon as you are able.
In certain cases, you may be able to notify the at-fault party or their legal representatives by sending a letter stating your intent to sue, thereby protecting your right to file a personal injury lawsuit.
Be aware that if you let this deadline pass, you may never be able to seek compensation for your injuries or financial losses.
States deal with negligence (sometimes called "fault") in different ways. Some states are "No Fault" states in which individuals who cause minor accidents cannot be held liable. Others, (including California), are "Comparative Negligence" states.
In these states, victims can seek compensation in court for a personal injury accident even if their own actions contributed to the accident. Comparative negligence states assign a portion of the liability (often expressed as a percentage) to each party involved, and the monetary award amount is reduced according to the percentage of negligence assigned to the victim.
For example, if a pedestrian is struck by a speeding car while crossing in a marked crosswalk without waiting for the signal light to change, each party may be assigned a portion of the fault. However, because the pedestrian was in the crosswalk and the car was speeding, the driver will likely be assigned a larger percentage of the negligence, and his insurer will have to pay compensation
In cases where the "victim" is assigned the majority of the negligence, it may be difficult or impossible for them to get any sort of compensation for their injuries.
Important Steps to Take With or Without a Personal Injury Case
There are several things you can do to protect your right to compensation and strengthen your personal injury case, including:
You and your personal injury attorney will use this evidence to:
It's may be too late to go back and collect some of this information if you wait until you are 100% sure whether you have a valid personal injury case, so if you think you may have a case, it's advisable to collect this this information and evidence as soon as you are able.
When You Might Not Seek Compensation
There are some instances where you might choose not to seek compensation, even if you do have solid evidence.
Your Damages and Injuries Weren't Excessive
If your financial expenditures and personal losses from the accident were not excessive, and the insurance company doesn't offer you any compensation, it may be preferable to absorb a minor financial loss and get on with your life than to invest time and energy in the pursuit of a small payout.
But don't forget to calculate the future damages associated with your injuries or your recovery, because expenses like time lost from work and physical therapy can become substantial over time.
The At-Fault Party Has No Assets
If the at-fault party has no insurance and has no assets to speak of, even if you win your personal injury case, you'll likely never receive compensation from them.
While this seems unfair, it's reality - you can't squeeze blood from a stone. Even when a victim wins a court judgment against a negligent driver, if they aren't insured and have no major assets, the compensation often never materializes or is never paid in full, and may require expensive collection efforts.
Your Insurance May Cover You
Sometimes you're better of seeking compensation from your own insurance company, especially if your medical costs are relatively modest. Your insurance may then pursue legal action against the at-fault party or their insurance company, or they may not.
Do You Need a Personal Injury Attorney?
If you do have the foundation of a successful personal injury case, you need to decide whether you need the services of a personal injury attorney. While you can successfully pursue an insurance claim or lawsuit on your own, personal injury attorneys have the experience necessary to make the process go much more smoothly and free your time to focus on your recovery and your life
Injured accident victims who use the services of qualified personal injury attorneys often end up with larger settlements and court awards than those who try to seek compensation on their own, and the lawyer can essentially handle the entire process for you. They deal with insurance companies and defense attorneys every day. They know the legal limitations placed on your personal injury claims. They can offer advice that will make the entire compensation process faster.
If you've been seriously injured, it's worth your time to have a free consultation with an experienced personal injury attorney who specializes in traffic accidents.