If you’re injured in an accident. The first thing you should do is call an ambulance, report the accident, note the evidence, and call an experienced personal injury lawyer.
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What Is a “Personal Injury” Claim?
If you have been injured in an accident due to the carelessness of another person or entity, you may be entitled to reasonable compensation for the harm you have suffered. In legal terms, you may have a personal injury claim based on “negligence.”
Negligence is a failure to act the way a reasonably prudent person would act under similar circumstances. Regardless of how you were injured in an accident — whether in an auto accident, a medical accident, a slip or fall, a dog attack, or by a defective product — you will have to prove some type of negligence in order to obtain fair compensation for your injuries.
Elements of Negligence
In order to establish negligence, you must establish these four elements:
Duty
As a threshold matter, you must establish that the “defendant” (the person you claim is responsible for your injuries) owed you a legal duty of care. A duty of care may arise out of the relationship between the parties (e.g., doctor/patient); the foreseeability and likelihood of harm to the injured party; or other factors. For example, a person who gets behind the wheel of a car owes a duty of care to the other drivers and pedestrians with whom he shares the road. Similarly, a storeowner has a responsibility to keep the premises safe and clean for his customers. If the defendant has no legal responsibility toward you, then he cannot be held accountable for your injuries.
Breach
A “breach” of duty is a failure of duty. When the defendant acts with unreasonable carelessness or fails to act in a way that a reasonably careful person would, that is a breach of duty.
Causation
The defendant’s breach of the duty of care must have caused your injuries. In other words, “but for” the defendant’s negligence, you would not have been injured in an accident.
Damages
If you suffered no harm, then you do not have a claim for negligence, even if the defendant’s conduct was unreasonably careless. If you were injured in an accident, you might be able to recover compensation (or, in legal terms, “damages”) for the harm you have suffered. Your damages might include the following:
- Past and future medical expenses;
- Lost wages and benefits;
- Loss of future earning capacity;
- Miscellaneous expenses (e.g., childcare, transportation, medical devices or appliances, etc.); and
- Mental, emotional, and physical pain and suffering.
How a Personal Injury Lawyer Will Evaluate Your Case
Ongoing Process
Case evaluation is an ongoing process for a personal injury lawyer. Your lawyer will weigh the factors listed below in deciding whether to accept your case initially, in evaluating settlement offers, in preparing for trial, and during the trial itself.
Factors Considered
Liability
Liability — that is, a breach of the duty to use reasonable care — is the first and biggest hurdle a personal injury lawyer will consider. This is especially true in smaller personal injury cases. Insurance companies have no fear whatsoever about rejecting claims in small cases in which there are serious questions as to liability. To put it another way, if the defendant’s liability (i.e., fault or responsibility) is unclear, then so is your chance of achieving a favorable outcome in your case.
Damages
What is the potential value of your case? Liability can be clear, but if there are no damages, then you have no case. For example, imagine you are forced off the road by another driver who crosses the center line. The driver is charged with operating under the influence and is arrested on the scene. You are shaken but have no physical injuries. Clear case? No. The liability is absolute, but you have virtually no damages.
The damages factor generally cannot be adequately assessed at your initial interview with the attorney because the full extent of your injuries is still unknown. However, even in the earliest stages of your case, you probably have some idea as to the potential severity of your injuries. Cases involving broken extremities are easy, but soft tissue cases, such as neck and back strains, are more difficult.
Defendant’s assets or the ability to pay
Does the potential defendant have the ability to pay a judgment? If not, you and your attorney may invest a good deal of time, money, effort, and emotional energy in the case but never see a penny in return. You may have a viable case if:
- The defendant has personal assets (e.g., property) to satisfy a judgment; or
- Insurance is available to satisfy a judgment. Depending on the facts of your case, this might include the defendant’s auto or home insurance; the defendant’s employer’s insurance; the car owner’s insurance; or the property owner’s insurance.
- If the defendant is uninsured, your uninsured or underinsured motorist policy may pay any judgment.
Jury appeal
What kind of person are you? Will the jury like you? Will jurors empathize with your situation? What kind of person is the defendant? Will the jury like the defendant? There are some “bad defendants” — the drunk driver, the tire squealer, the bully or the bar owners who were too busy pushing drinks to notice who was getting drunk. If you have a bad defendant, your settlement range goes up. There are also some “good” defendants — e.g., the little old man who rear-ends you because he is distracted, looking for his doctor’s office.
A “good” defendant will lower the settlement value of your case because a jury will sympathize with him or her. Generally, though, you will be dealing with an average defendant who was negligent for only a few seconds — e.g., the neighbor who neglected to put enough sand on his sidewalk after a snowstorm or the owners of a small bookshop who did not repair one of the steps leading into the store soon enough.
Quality of potential witnesses
Your case is only as good as your evidence, and usually, your evidence is only as good as your witnesses. If, for example, your only witness to support liability is a relative or friend, your case is weaker than if you had several impartial witnesses. If the doctor involved has never testified, doesn’t want to testify, or cannot testify well, this also weakens your case and lowers its settlement value.
Insurance company
Some insurance companies are far more conservative (i.e., tight-fisted) than others. Their settlement practices will not change, even if they lose 100 lawsuits. It doesn’t bother this type of insurance company to pay several thousand dollars to defend a $25,000 case, even if they lose to a verdict of $35,000. It’s part of doing business. If the carrier is fair, and some of them are, you can count on a few more dollars in the settlement offer. If the carrier is conservative (perhaps we can even use the word “cheap”), you and your lawyer have to take this into consideration in evaluating your case.
Venue
Where will a lawsuit be filed? Jurors in some states are receptive to personal injury cases, while jurors in other states are not. In some counties, and some municipalities, very low verdicts are common. In others, verdicts in excess of one million dollars are not uncommon. You must consider your particular county or jurisdiction when evaluating a settlement offer.
Legal issues
Is there a state law or court ruling that applies to your case? If there is strong supporting law that your injury attorney can cite in your favor, the settlement value of your case is enhanced.
Time since the injury occurred
How much time has passed since the incident that caused your injuries? As a general rule, the longer it takes a case to get to a jury, the less sympathetic the jurors will be. This is particularly true if you experienced pain or other symptoms for a limited time after the accident but have fully recovered by the time of trial.
In an auto accident case, collision damage
In many automobile cases, the actual damage to the automobile may be minimal. Car bumpers are made to absorb more impact now than they could years ago. Jurors are impressed by evidence, or lack thereof, of substantial collision damage. If the car in which you were injured in an accident looks like an accordion, it will be easier to convince a jury that you sustained fairly serious injuries.
On the other hand, if there was only a bumper scratch or minor fender damage, the jury will question the extent of the impact and, therefore, the extent of your injuries. How- ever, significant collision damage to the defendant’s vehicle may help convince an insurance adjuster, or a jury, that you sustained more than minimal injuries.
“Remember, the adjuster is not your friend. The adjuster’s goal in the early stages of the investigation is to gain your trust before you file a lawsuit and officially become an adversary. Once a plaintiff’s attorney becomes involved, the claim’s value can increase by anywhere from 10% to 1,000%; hence, the adjuster’s incentive for gaining the trust of, and control over, the claimant.”
Read more in our comprehensive eBook about what you need to concern about if you’re injured in an accident. Download it now.
Contact a Proven Car Accident Lawyer in East Texas Today!
An injured crash victim should retain a personal injury specialist to determine if the at-fault parties have adequate insurance. If there is insufficient at-fault insurance, an experienced personal injury lawyer can begin the process of filing an uninsured or underinsured motorist claim.
However, many insurance companies do not treat these claims fairly. Therefore, our skilled personal injury lawyer at McKay Law can help a victim overcome these obstacles and obtain full and fair compensation.
Our East Texas car accident lawyers can assist you in filing an uninsured driver claim and obtaining appropriate compensation for a variety of car accidents, including rollovers, drunk driving accidents, T-bone collisions, and head-on collisions.
To schedule a free consultation, Call (903) 465-8733, or submit your case for a free case review.
