Initiating a Personal Injury Lawsuit

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 What Is Personal Injury Law?

Personal injury law is also known as tort law. In legal terms, a tort is a civil wrong other than a breach of contract that causes harm or loss. This area of law is intended to provide protection if you or your property is injured due to someone else’s act or failure to act. When successful, the person who caused the injury or harm compensates the person who suffered the losses, generally through a monetary damages award.

Civil tort law is also intended to deter or discourage further wrongdoing by providing monetary damages for foreseeable harm that was caused by, or was the direct result of, another person breaching their duty of care. This standard of care is what a reasonable person in a similar situation would do.

Some examples of wrongdoing include, but may not be limited to things that:

  • Cause physical and/or economic injury;
  • Cause pain and suffering;
  • Violate privacy, property, and/or constitutional rights; and
  • Damage a person’s reputation.

Torts are generally classified as either intentional, unintentional, or strict liability torts. Intentional torts are wrongful acts that were done on purpose; as such, it is not necessary to prove that the plaintiff intended to harm the defendant, only that the defendant intentionally did something that caused harm to the plaintiff. Intentional torts can be further broken down into intentional torts to the person, and intentional torts to property.

Unintentional torts generally involve a claim based on negligence. Simply put, an unintentional tort is an accident that caused harm to another person. There is liability because the party who was negligent owed the victim a duty to act as a reasonable person would act in a similar situation, and breached that duty.

Strict liability torts are those in which the plaintiff does not have to prove that the defendant violated a standard of care. Strict liability generally applies in cases involving inherently dangerous activities, and as such, the defendant is liable simply because they were doing something dangerous and someone got hurt. Some examples of strict liability include using explosives or transporting toxic chemicals, as well as animal attacks such as dog bite claims.

Products liability torts are another type of strict liability. Someone who files a lawsuit against the manufacturer of a product must prove that the product was defective and that it caused an injury. They do not need to prove that the manufacturer was negligent, or that they intentionally made a defective product.

How Are Personal Injury Lawsuits Initiated?

Personal injury lawsuits begin when the aggrieved party, also known as the plaintiff, files a complaint with the court. A complaint is a considerably technical legal document detailing the relevant facts and the specific laws that were allegedly violated by the defendant.

The complaint also explains what the plaintiff wishes the court to do, such as award damages or issue an order that requires the defendant to do something or cease doing something. Generally speaking, the complaint should be drafted by a lawyer.

Once the complaint has been filed, the defendant will have an opportunity to answer the allegations in a document called an answer. If the defendant has a personal claim against the plaintiff, the defendant may also file a complaint, which is generally referred to as a counterclaim. At this early stage in the lawsuit, any relevant third parties may also be added to the litigation through various procedural steps.

In the pre-trial litigation process, both parties will ask one another for evidence and witness information. The other party must share any relevant information that they have. This stage of the process is called discovery. During these early phases, both parties will appear in court in order to update the judge in terms of how the case is being handled. Additionally, the disputing parties can both agree to mediation or arbitration in which they set a trial date.

Once the case appears to be moving closer to the actual trial, the disputing parties will begin to:

  • Engage in mandatory settlement conferences;
  • Make motions in order to establish what evidence will be allowed at trial; and
  • Select a jury.

What Happens At A Personal Injury Trial?

During a personal injury trial, the judge and/or jury examines the presented evidence in order to determine whether the defendant should be held legally responsible for the injuries and harm alleged by the plaintiff. Additionally, the plaintiff has the opportunity to argue their case, while giving the defendant a chance to refute the plaintiff’s case and present their own evidence relating to the personal injury claim.

Once both sides have presented their arguments, the judge and/or jury determines whether to find the defendant legally liable for the plaintiff’s claimed injuries, and to what extent if so. An example of this would be the amount of monetary damages that the defendant must pay to the plaintiff.

It is important to note that the majority of personal injury disputes are resolved well before trial, and in some cases, before a lawsuit is even filed. Some examples of this include:

  • Settlement between the disputing parties;
  • Alternative dispute resolution (“ADR”) processes such as arbitration and mediation; or
  • Dismissal of the case.

A complete personal injury trial generally consists of six main phases, which are briefly described as follows:

  • Choosing a Jury: With the exception of cases that are tried only before a judge, one of the first steps in a personal injury trial is to select a jury. During jury selection, the judge will question a pool of potential jurors; the attorneys representing the plaintiff and the defendant may also be involved in this process.
    • Both the plaintiff and the defendant may exclude a certain number of jurors through the use of peremptory challenges and challenges for cause. A peremptory challenge can be used to exclude a juror for any reason, while a challenge for cause can be used to exclude a juror who has shown that they cannot be truly objective when deciding the case;
  • Opening Statements: Two opening statements will be made: one from the plaintiff’s attorney, and another from the defendant’s attorney. No witnesses may testify at this stage, and it is not common for physical evidence to be used. Because the plaintiff must demonstrate the defendant’s legal liability for their injuries, the plaintiff’s opening statement generally comes first and is often more detailed than the defendant’s.
    • In some cases, the defendant may wait until the conclusion of the plaintiff’s before making their own opening statement. In a personal injury case, during opening statements, the plaintiff presents the facts of the accident or injury and the defendant’s role in causing those damages. The defendant’s attorney gives the jury the defense’s account of the facts, and rebutts the plaintiff’s key evidence while presenting any “affirmative” defenses to the plaintiff’s allegations;
  • Witness Testimony and Cross-Examination: This is the stage in which each side presents its key evidence and arguments to the jury. The plaintiff attempts to convince the jury that the defendant is legally responsible for their injuries and damages, and may call witnesses and experts to testify, in order to strengthen their case. They may also introduce physical evidence, such as photographs, documents, and medical reports.
    • After the plaintiff “rests,” the defendant can present its own evidence in an attempt to prove that it is not liable for the plaintiff’s claimed harm. They can call their own witnesses to the stand and present any of its own independent evidence. Once the defense has rested, the plaintiff can respond through a rebuttal;
  • Closing Arguments: This allows each side to sum up the case and recap the evidence in such a way that is favorable to them. In closing arguments the plaintiff attempts to show why the evidence requires the jury to find the defendant legally responsible for the plaintiff’s injuries, while the defendant attempts to show that the plaintiff has failed to prove the defendant’s liability for any civil judgment in the plaintiff’s favor;
  • Jury Instruction: Once both sides have presented their evidence and make a closing argument, the judge gives the jury the set of legal standards needed to decide whether the defendant should be held accountable for the plaintiff’s alleged harm. The case then goes to the jury; and
  • Jury Deliberation and Verdict: The jurors consider the case and attempt to agree on whether the defendant should be held liable for the plaintiff’s claimed injuries, as well as the appropriate compensation for those injuries. Once the jury reaches a decision, they inform the judge who generally announces the verdict in open court.
    • Most states require a 12-person jury for a personal injury case, and that they must be unanimous in finding for the plaintiff or the defendant. If the jury fails to reach a unanimous verdict, the judge may declare a mistrial, after which the case may be dismissed or the trial may begin again from the jury selection stage.

What Do Personal Injury Attorneys Do?

Personal injury attorneys can provide representation for either the victim or the defendant. They provide representation for many different types of cases, including but not limited to:

Additionally, the attorneys for each side will research the facts of each specific case, as well as what law will best apply to the lawsuit. As previously mentioned, this is referred to as discovery.

In terms of how much a personal injury attorney may cost, some of the factors that influence the cost include:

  • Type of Injury: Some injuries may be less obvious than others, such as illnesses and injuries caused by toxic substances. These may require more time spent on researching liability for the injury than a car accident would. As such, this could add to the cost of a personal injury attorney;
  • Expert Witnesses: Some injuries can only be clearly shown through expert testimony and advice. Expert witnesses are generally compensated for their time, which will add to the overall cost of a personal injury lawsuit and attorney; and
  • Other Costs: Simply put, this type of litigation is expensive. Some examples of the costs associated with personal injury lawsuits include, but may not be limited to: depositions, outside research, preparing exhibits, copies required for the court and each party, phone bills, and travel costs.

Some examples of the work that a personal injury attorney may do include:

  • Investigating claims and screening potential clients;
  • Gathering evidence to support their client’s claims, or refute the opposition’s claims;
  • Negotiate with insurance companies as needed;
  • Compose and send demand letters to insurance companies or other relevant parties;
  • Prepare pleadings, such as those detailing the legal arguments as to why the defendant should
  • be held liable for their plaintiff client’s injuries;
  • Conduct discovery, as previously discussed; and
  • Represent their client at trial.

Do I Need A Personal Injury Attorney?

If you have been injured or experienced losses because of someone else’s actions or inactions, you should consult with an experienced and local personal injury lawyer as soon as possible. An attorney will be best suited to helping you understand your state’s specific personal injury and liability laws, and what your rights and legal options are under those laws. They will gather evidence to support your claim and negotiate with any relevant parties as needed.

Your personal injury attorney will also be able to represent you in court, and work towards a suitable damages award to compensate you for any injuries and/or losses you have experienced.

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