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Anatomy of a Personal Injury Claim

How to make a Personal Injury Case From Start to Finish

Personal injuries due to another person’s carelessness (“negligence”) come in a wide variety of situations. Injuries or deaths suffered in automobile accidents are the number one type of accidental injury or death in the United States. But there can be many causes of injury: a defective product, a motorcycle accident, a boating accident, a pedestrian struck by a car while trying to cross the street, a slip on a wet grocery store floor, an airplane accident, a fall off a defective ladder, a bus accident, etc.

Because automobile accidents are the most frequent cause of injuries and deaths, we’ll use that scenario as a hypothetical case. Suppose you are driving down a four-lane street one day at 45 miles per hour, the legal posted speed limited, coming towards an intersection, and there is a green light in your direction. However, a car coming from the opposite direction makes a left-hand turn right in front of you. You hit the brakes and turn the steering wheel in an attempt to avoid the collision, but it’s not enough. The cars collide and you sustain significant personal injuries.

What should you do first? One of the first things you should do is check to see whether you or any of your passengers are bleeding or otherwise in need of some serious first aid. Dial 911 to summon the paramedics and the police, sheriff, or highway patrol. If you suffered neck pain or your head was thrown violently backward and forward (“whiplash“), or your back hurts, you may not want to move until the paramedics arrive and check you out. You may have sustained trauma to your spinal cord or fractured a spinal vertebra that if moved incorrectly could result in paralysis. Paramedics will be able to put you in a soft collar to immobilize your neck and use a solid spinal board and strap you to it to reduce the possibility of injuring your back further.

You may have suffered other serious injuries, such as a head injury or fractures to your arms, legs, ribs, pelvis, hip, or other bones. If an airbag deployed, you may suffer damages to your hearing because of the noise of the explosive used to inflate the airbag or damages to your face and head by the explosive force of the airbag deploying. If your car is not equipped with an airbag, you may suffer serious face and head injuries by hitting your head against the steering wheel. In such a case, the paramedics should take you to the nearest emergency room for evaluation and treatment.

If the police respond to your accident, they should conduct an on-the-scene investigation, getting personal and insurance information from the parties involved and statements from any witnesses. After speaking with the drivers and witnesses, and taking measurements of skid marks and location of where the cars end up, the police will file their report, which may place the blame on either or both drivers. Based on their investigation, the police officer may give a ticket to the driver who made the unsafe left turn in front of you, or the officer may conduct a further investigation and issue the ticket a week or two later.  Often times, even if a party is found to be the cause of the accident, the police will not issue a citation.

If you have been injured beyond needing simple first aid to treat superficial lacerations and contusions (cuts and bruises), the paramedics will transport you to the nearest emergency room or to the nearest emergency room that is designated as a trauma center. At the emergency room, a nurse or doctor will make an initial assessment of your condition to determine whether you need immediate treatment or whether you can wait half an hour or an hour, depending upon how busy the emergency room happens to be at the time. The preliminary evaluation of patients is known as “triage,” and is designed to get the most seriously injured patients the fastest medical treatment.

You may undergo a series of diagnostic procedures, such as x-rays or a CT scan to determine whether you have broken any bones or other injuries. If you hit your head in the accident, a neurological examination should be performed to assess whether you sustained any traumatic brain injury. The neurological exam should also assess whether you may have an epidural or subdural hematoma in your brain that requires immediate treatment. If you have suffered a serious injury such as serious burns over a significant part of your body, severe injuries to your spine that paralyze you, a severe head injury, or some other catastrophic injury, after you have been stabilized you will likely be transferred to a hospital or rehabilitation center that specializes in your type of injury.

You should report the accident to your own insurance agent as soon as possible. In cases involving personal injury, death, or property damage in excess of $750.00, a form (an SR-1) must be filed with the Department of Motor Vehicles within 10 days of the accident.

If you have been injured due to another person’s negligence—especially if the injuries are more than minimal—you should consider retaining an experienced personal injury lawyer as soon as possible. The lawyer will notify the other person’s insurance company that he or she is representing you, and all communications regarding the accident should be to his or her office. The experienced personal injury lawyer will understand the medical, physical, financial, and psychological ramifications of your injury. The insurance adjuster assigned to your case may try to persuade you not to get a lawyer involved, because they will take a large chunk of your settlement. Studies show, however, that accident victims represented by a lawyer end up with more money in their own pockets even after paying the lawyers’ fees than if they handled the case on their own.

Your prospective attorney may have you fill out a patient questionnaire before you meet with him or her. By all means, take all the documents and pictures of the damage to your car or other property damage, and pictures of your injuries you have to the first meeting with the attorney. This may be the police report, medical bills, records and any doctor’s report or results of diagnostic procedure (such as an X-ray, CT scan, or MRI report), and information regarding the days you were off work. Don’t worry or postpone your meeting with the attorney if you don’t have these forms and records. If you decide to retain the attorney, he or she will have you sign documents allowing health care providers to send you a copy of your file and all charges, or employers stating how much you were earning before the accident, how many days you were off work, or if you couldn’t return to your old job because of the injury. If you decide the lawyer is competent enough and experienced in your type of case, he or she will have you sign a retainer agreement. Your lawyer will immediately notify the insurance company and its adjuster that he or she has been retained to represent you and all communications regarding the case go through his or her office, and they are not to contact you (the client) directly.

In catastrophic injury or death cases, it frequently happens that the person who caused your injury or your loved one’s death does not enough insurance to cover all of the bills of hospitalization, lost wages, lost earning capacity, pain and suffering, and other injuries. The reality of it is that bank presidents or financial moguls rarely cause accidents. California requires only that a person have insurance limits up to $15,000 per person injured, to a total of $30,000 for any one accident (regardless of how many people were injured and the extent of their injuries), and $5,000 in property damage. But if the person who injured you or killed your loved one was on the job at the time, you can sue the company as well, and its insurance limits should be considerably higher. Similarly, if the person who hurt you was a government employee and was working at the time of the accident, the government is liable for the injuries. Be advised, however, that if you are dealing with a governmental employee, you are generally required to file a claim with the appropriate governmental agency usually within six months of the accident. An experienced personal injury lawyer can help you with making the claim.

Suppose you were seriously injured by a careless driver, but he or she has only minimum coverage. If your injuries are substantial and liability was clear (that is, there is no question that the other driver caused the accident and you were no way at fault for the accident), the other party’s insurance company will generally pay the full amount of the policy (the “policy limits”) with little hesitancy. However, in cases like this, if you have underinsured motorist insurance coverage that exceeds $15,000, and your injuries are more than this, you may make a claim against your own insurance company for the policy limits of your own insurance policy (assuming you purchased underinsured coverage as part of your policy). Similarly, if the driver who hit you didn’t have any insurance at all, you can make a claim under the uninsured motorist provision of your own insurance policy if you are so covered.

At some point in the negotiations with the insurance company, it will make its “last, best settlement offer.” Or your lawyer may preempt such a letter from the insurance company with his or her own “demand letter,” demanding that the insurance company settle for a certain amount or you will go to trial. If you feel that the insurance company’s settlement offer is too low, or the insurance company rejects your lawyer’s demand, you and your lawyer then have the decision to make regarding accepting the insurance company’s offer or taking the case to trial to have a jury decide on who was at fault for the accident and how much to award. The jury may award more than what the insurance company was offering. But then again they may award less or even nothing at all. The jury may conclude that the accident was your fault or that you could have avoided it. Stories abound of plaintiffs who were offered $100,000, $250,000 or even more to settle their case, but the plaintiff turned it down and the jury came back with a defense verdict (that is, the jury found in favor of the defendant, giving the plaintiff nothing).

In some cases, several weeks or months after the accident, the lawyer may set up an appointment for you with a psychologist or psychiatrist for a mental health evaluation. For example, you may be having trouble sleeping and keep reliving the accident (a psychological disorder known a Post Traumatic Stress Disorder). After an automobile accident, you may develop an apprehension or fear of driving or other psychological injuries. These are real and serious injuries that you should seek treatment for as early as possible.

Over 95 percent of all personal injury cases are settled without having to go to a full-blown trial. Nevertheless, the attorney must prepare the case meticulously, as though it is going to trial. If the plaintiff’s attorney and the insurance company (or its lawyer) cannot agree on a fair settlement amount, the plaintiff’s attorney will file a “complaint” with the court against the person and company who harmed his or her client or killed the client’s loved one. Within 30 days, the defense must file an “answer” to the complaint with the court. Rather than filing an answer, the defense may file a “demurrer” to the complaint, which essentially says that the plaintiff’s complaint didn’t allege the defendant did anything legally wrong and therefore they are not obligated to pay anything (that is, they are not “liable” for the defendant’s injuries and other damages.)

After the complaint and answer have been filed, the case moves into the “discovery” phase. Each party may send the other written questions (“interrogatories”) to answer under penalty of perjury. Depositions of the parties to the lawsuit will be taken. In a deposition, a lawyer for the other side asks questions of the party or witness being deposed. Depositions usually take place in the attorney’s office, and a court reporter is present to record the deposition. The court reporter will swear you in and the effect of the testimony is the same as if you were testifying in open court under penalty of perjury. Before your deposition, your attorney should go over it with you and what to expect. Some common advice is not to volunteer any information, answer the questions as briefly and succinctly as you can, and if you don’t understand a question, don’t guess at what they mean but ask the attorney to rephrase the question. If you have any problems during the deposition, don’t understand a question, or feel that you are being harassed or intimidated, you have the right to stop the proceedings to talk to your lawyer in private. You will not be alone at a deposition; your attorney will accompany you. In a deposition, the attorney is allowed to ask questions that would not be admissible in court, but must be reasonably related to the discovery of admissible evidence.

In cases of serious personal injury, the defense lawyer may wish to have the plaintiff examined by its doctors. This is known as an Independent Medical Evaluation (IME).

Here’s a brief look at how a personal injury trial unfolds:

First, a jury of 12 people are selected to hear the case. The jury comes from a pool of citizens from all walks of life. It used to be fairly easy to get excused from jury duty, but because this often led to an insufficient number of people available to be jurors, the courts have made it much more difficult to get excused from jury duty. In most courtrooms, the judge will ask a series of global questions to see if anyone cannot serve on the jury or the potential jury members know any of the witnesses or the lawyers. If the trial is expected to last more than a week or so, the judge may ask the potential jury members if they are available to hear the case if goes several weeks or even months.

After the judge is finished questioning the potential jurors, the lawyers for both sides get the opportunity to ask questions of individual jurors. Every attorney has his or her own style of questioning the jury and determining whether he or she would want a particular juror deciding their client’s fate. The attorney will ask questions such as the person’s educational, political and religious background, what he or she does for a living, what the juror thinks of people who bring lawsuits, whether the prospective juror has ever been involved in a lawsuit before, whether the juror can put aside his or her own feelings about lawsuits and decide the case fairly based on the evidence presented to the jury, and a number of other questions designed to elicit whether the juror would be sympathetic to his or her client’s plight or would be more likely to vote in favor of the insurance company. In catastrophic injuries, the attorney may sometimes hire a jury consultant (who is usually a psychologist) to help determine whether the juror is likely to be for or against his or her client’s case.

After a jury acceptable to both sides has been chosen and sworn in, the judge may say a few words to the jury about the general nature of the case. Then the plaintiff’s attorney will give his or her “opening statement.” An opening statement is designed to tell the injury what evidence the attorney will present to the jury to establish his or her client’s right to be compensated (“damages”). The attorney can only recite the facts he or she intends to present at trial to establish the defendant’s fault (“liability”). The attorney is not entitled to argue the case at this point to the jury. Closing arguments come at the end of the trial. After the plaintiff’s attorney has given his or her opening statement, the lawyer for the defendant (really, the insurance company) will have the chance to make his or her opening. The defense lawyer may wish to give his or her opening statement immediately after the plaintiff’s lawyer has given his or her own opening statement, or the defense counsel may wait to give his or her opening statement after the plaintiff’s attorney has rested his or her case.

After both sides have made their opening statements (or the defense lawyer has decided to give his or her opening statement when the plaintiff’s attorney rests his or her case), the plaintiff’s attorney presents his or her “case in chief.” A word about the burden of proof the plaintiff’s attorney must meet: In a criminal case, we are all familiar with the standard that the defendant’s guilt must be proved “beyond a reasonable doubt.” In a civil case the standard is much lower: The plaintiff need only prove the defendant caused his or her injuries to a “preponderance of the evidence.” This means that it is more likely than not that the defendant was at fault. If you take the scales of justice and have them even, all the plaintiff has to do it tilt the scale ever so slightly in his or her favor to prevail. The plaintiff need only prove his case to 51 percent against the defendant’s 49 percent in order to prevail.

If it is a personal injury case, the plaintiff’s attorney will often put the injured victim on the stand first. The attorney will ask his or client about the accident, what he or she was doing in the moments leading up to the accident, how fast he or she was driving, how much traffic was on the road, whether there were traffic signals or signs, weather and visibility conditions, the condition of the road (such as whether it was wet or dry, or had debris scattered in the lanes), whether the plaintiff was impaired in any way by alcohol, drugs (including illegal drugs such as marijuana, cocaine, or methamphetamines, prescription medication that could impair driving, or over-the-counter medications that have drowsiness and other side effects), how far away he or she was from the defendant when he or she first saw the other driver, and other questions establishing the defendant’s fault. The plaintiff’s lawyer will also call to the stand any percipient witnesses (people who witnessed the accident). In serious cases, the plaintiff’s attorney may hire the services of an expert accident reconstructionist to recreate the accident based on all of the evidence to establish the defendant’s liability. Note that after each witness has finished being examined by the plaintiff’s lawyer, the defense lawyer has the right to cross-examine him or her.

The plaintiff’s lawyer will establish “economic damages,” such as medical costs, lost wages, loss of earning potential, and property damage. The plaintiff’s lawyer will also ask his or her client about the pain and suffering he or she experienced (or continues to experience) as a result of the injury, and his or her inability to engage in pleasurable activities he or she used to engage in before the accident (“loss of enjoyment of life”). Medical doctors may be called as witnesses to testify as to the previous injuries the plaintiff suffered in the accident, and what the prognosis is for the patient in the future, such as permanent impairment of the limbs or the need for future surgeries. Where the loss of damages is substantial, the plaintiff’s lawyer will call to the witness stand a forensic accountant who will establish the lost wages over the victim’s life or period of disability. The victim’s employer may be called in to establish that the victim was a good solid worker and would have been in line for promotions and increases in salary had he or she not been injured or killed.

After the plaintiff’s lawyer rests the case-in-chief, the defense lawyer will present their side to the jury. The defense lawyer may attempt to place some or all of the blame for the accident on the plaintiff, and may bring in its own expert accident reconstructionist to dispute the plaintiff’s expert. Where future medical surgeries or problems are claimed by the plaintiff, the defendant will present its own medical experts to try to minimize the plaintiff’s claims.

After the defense counsel has rested its case, the plaintiff’s lawyer has the right to present evidence that conflicts with what the defense witnesses testified to. This is known as “rebuttal.” After both sides have rested their cases and there is not further rebuttal, the judge instructs the jury on the law. Jury instructions can be confusing to the average lay juror, as they are usually written in legal terms. Once the jury has been fully instructed on the law, the jury retreats to the jury deliberation room. Their first order of business is naming a foreperson.

Unlike criminal cases, which require a unanimous verdict to convict a defendant, in a civil case only 9 of the 12 jurors need to agree that the defendant is legally responsible (“liable”) for the plaintiff’s injuries. After finding the defendant to have been at fault and the cause of the plaintiff’s injuries, the jury’s next task is to come to a decision as to the amount of money to award the plaintiff.

If the jury returns a verdict in favor of the defense, your attorney will talk to you about the possibility of appealing the case to a higher court. There must be a substantial error by the judge that tainted the trial and made it impossible for you to get a fair trial. For example, if your attorney feels the trial court made unfavorable rulings against you that prevented you from getting a fair trial or gave the jury instructions that did not correctly state the law. If the jury comes back with a verdict in your favor, but it is for less than what you asked for, there is generally nothing you can do about it, unless you can demonstrate the judge did not properly instruct the jury on damages, or the jury committed misconduct in their deliberations that resulted in the reduced verdict, an admittedly hard thing to prove.