Auto accidents, slip-and-fall accidents, and medical malpractice are all examples of incidents that may qualify for monetary damages through a legal Personal Injury Claim. A person may file a personal injury claim in any situation in which another party, the defendant, has caused injury either with intent or through negligence. While each case is different, the legal issue hinges on whether the fault lies with the defendant, and if your injury was caused by their action or failure to act. By taking the proper steps in a personal injury claim, you, the plaintiff, may receive monies for medical expenses, pain and suffering and other associated losses.
Step One: EVIDENCE PRESERVATION
To be successful in winning a claim for injuries to your person, it will be required of you to show that those injuries occurred as a result of the accident, and that they were the fault of the defendant. When an accident occurs, it is important to write down all pertinent while you can clearly recall it from memory. As well as all details that will document what was going prior, throughout and following the accident.
Include even the most basic information such as the precise time, what the weather was doing, anyone who was at the scene, and any other factors that may come into play. Include even things you may think are not relevant, because later, they may turn out to be. Also important, observe and record how defendant acted after the accident: did he/she admit fault, apologize, or make offer to reimburse you for any expenses. Though some or even all of this data may not be admissible in court, it may be useful in negotiating a settlement. Write it all down with the time and date.
If able, immediately look around for people who actually saw what happened first-hand. This should be done while details are fresh in the mind of those who directly observed what happened. Ask those witnesses if they would provide you with a short description of what the could see happening from their vantage point, and collect contact information such as full name, address, and phone number. Witness testimony can be crucial if your case goes to trial. Uninvolved third party testimony frequently carries a lot of weight with a jury, because those witnesses have nothing at stake in the case. It can also be a great tool for leverage should your attorney try to negotiate a settlement.
Images of all components of the accident scene
At your first opportunity, snaps pictures of the scene of the accident. You will want to document conditions before the defendant has a chance to make any changes, such as to the condition of their vehicle or other property. It is good to document conditions as they were at the time of the accident. If the accident occurred at night, take night photos.
Photos of the injuries
Document your bodily injuries with photos as soon as possible. These injuries are likely more visible soon after the accident. And because it may take months or years before your case goes to trial, your injuries may not be obvious or even visible by then.
See your doctor immediately. Your doctor may find damage that isn’t obvious to you yet. A doctor visit also generates proper medical documentation. Collect copies of the results from your doctor visit, and if possible, visit your primary care doctor who knows you and what your condition was before the accident occurred. Otherwise, always seek an exam from licensed Medical Doctor.
To avoid the defense that you exacerbated your injuries through your behaviors and activities following the accident, always strictly adhere to the treatment prescribed by your doctor. And again, document the carrying out of those treatments.
Keep a log
Make note of your day-to-day condition, including how well you can sleep or not, your appetite, mood, etc. Including changes such as in a relationship with a spouse or partner, as loss of sex drive may be compensated as “loss of consortium.”
Step Two: LEGAL REPRESENTATION
Generate a healthy selection of personal attorneys near you who handle cases of personal injury. The phone book or an online directory should suffice. The state bar association or the American Bar Association can also give you local referrals.
Check online reviews for those local attorneys. Ask anyone you know who has had experience with personal injury attorneys what they thought of their lawyer. In addition, your state bar association also records and history about any complaints or disciplinary actions against licensed attorneys practicing in your state.
Check the website of your prospective attorney. Look for their background, years they’ve practiced, and whether they have a specialization.
You can expect your first consultation to be free. Bring your collected information including medical records. Your attorney will make a determination as to the viability of your case based on several factors:
1. How permanent is the injury
2. Your previous medical history
3. If you have a criminal record
4. If your injuries were inflicted intentionally
5. Is your case winnable
Your personal injury lawyer may offer to take the case on a ‘no win, no fee’ basis. Typically a 30 to 40 percent cut of what the jury awards. Whatever the jury decides, deductions from the settlement will include miscellaneous costs involved such as investigative efforts, filing fees, expert witness fees, etc. In addition, your medical providers will be paid first, before anyone receives monies.
Step Three: CASE PREPARATION
Aside from the obvious medical costs, there are other expenses and damages that may be covered in your settlement. There is loss of income and future ability to earn income, pain and suffering, loss of enjoyment, and loss of consortium. There are also the future costs incurred in your recovery.
Property damage must be calculated, such as damage to your vehicle or personal belongings.
Filing the complaint
The lawyer representing you will draw and file the required papers. This complaint will present the facts of the case, along with your contentions of the defendants liability. The reparations demanded are also included in this filing. The defendant will receive a copy of this filing, and you should retain was as well.
The discovery process is where both parties get to see all the evidence in the case. Both sides are entitled to documents in the other’s possession, and can request answers to questions, either verbally or hard copy.
A deposition is where witnesses are called in to answer questions face-to-face. The witnesses, which may certainly include you, will be sworn in, and a recorder for the court is usually present. Your attorney may prepare you for this deposition with a rehearsal. Remember that in the official deposition, anything you say can be held against you. You cannot prepare too much.
Independent medical exam
The defendant’s attorney will often demand a second medical exam performed by a different doctor. The point of this is to call into question the degree and veracity of your claim to related injuries. Answer questions honestly, but don’t volunteer information. Do not agree to submit to X-rays or a psychological examination. If the examining physician is insistent, contact your attorney. Again, make sure that you are provided with your own copy of this exam.
The possibility of a summary judgment
A summary judgment is a judgment made solely on the points of law as determined by the judge, with no jury involved. Usually filed by the defendant, this motion argues that there is no reason for the case to go to a jury for a decision. This limits the scope of your claim against the defendant. Your attorney should have a plan as how to respond to a summary judgment motion.
In the defendant has filed and lose a motion for summary judgment, it may behoove him/her to settle their case out of court. Either you or the defendant can suggest a settlement. A settlement is reached through negotiations with both parties lawyers present, and many times when the principles are not present. Attorneys often have a good sense as to what a settlement amount should be, and have a strategy to attain it. A good settlement is always preferable to taking the claim to a jury.
A neutral party may be brought in to act as a mediator between you and the defendant. Seeking points of agreement that may lead to a fair settlement. The cost of the service are usually offset by avoiding a drawn out legal process and an agreement is often made to equally share the expense with the defendant.
Step Four: GOING TO TRIAL
Twelve jurors are selected that pass the challenges of both sides. An alternative to a jury trial is a bench trial, where the judge hears and rules on the case.
Both sides lays out their case as the will present it before jury. This prepares the jurors to hear the evidence and alerts them as to what each side hopes to prove.
Evidence presentation and witnesses
Physical evidence is submitted, and witness testimony is presented. You, the plaintiff, get to present your witnesses first. Both sides get to examine and then cross-examine the witnesses.
You will probably get a call to testify in front of the court. The attorney will help you prepare your testimony and answers when you are cross-examined. Be calm, act professionally, and dress conservatively. Again, answer truthfully but don’t volunteer too much information.
After all of the witness testimony and evidence presentation, both attorneys will deliver their closing arguments. This is their final opportunity to sway the jury in their favor. Since the responsibility to prove the case rests with the plaintiff, your attorney gets to open with his summation of the facts and evidence. And after the defendant’s lawyer makes his/her own closing arguments, they get a final chance to close the arguments.
Following the closing arguments, the jury is instructing by the judge to the points of law that they are to be considering. The jury will then be no longer deliberate. In many states, for a civil lawsuit, the jury only needs to reach a super-majority for a plaintiff to recover damages. A unanimous decision is not necessary. Only 8 to 10 of the twelve jurors need to find in the plaintiff’s favor.