An incredible number of people are injured in the United States each year. Personal Injury is that area of law which deals with such injuries. There are literally hundreds of thousands of accidents of some sort many of which end up in court but most of which don’t. Personal Injury law also involves Medical Malpractice, Nursing Home malpractice and any type of health care related professional negligence. These areas of Personal Injury however are rare compared to other forms of injury and are very unique and usually much more difficult, expensive and time consuming to prosecute even though the same general principles of proof apply.
The most common forms of Personal Injury are vehicular accidents, primarily meaning automobiles and trucks, slip and falls and dog bites. In general, if a person is injured in such a situation they must obviously be medically attended to and pay for that care. Many victims of injury or trauma however do not find total relief with such care and end up with more serious and long lasting injuries.
Victims of accidents who wish to be reimbursed for their injuries usually have to resort to retaining an attorney to represent them. It is not common for people to simply settle their matter without lawyers or outside of court or a lawsuit. Some of the reasons this is the case is because we Humans do not tend to always be that honest to own up to our mistakes and pay for them. But, many times there is a genuine difference of opinion as to whose fault the accident was and the nature and extent of the injuries. It is also generally true that from a legal stand point it can be risky to try and settle a matter without legal representation because the law is very complex and it is easy to inadvertently fail to produce a final result. In large part non lawyers do not know how to properly draft a settlement agreement that permanently ends all litigation. After all, who wants to pay the victim and then get sued anyway? Or the other way around, who wants to get paid and barred from further payment and then discover later that the injuries are more severe than first thought?
The best advice is for people to get professional legal assistance either on their own or use that provided by your insurance carrier. Note that you are always entitled to retain your own lawyer even if the carrier provides one. There is no law that says you can’t have your own adviser because often times people do not trust that the lawyer for the carrier is going to look out for their interests as much as he looks out for the carrier’s. If and when you retain your own lawyer that lawyer has a legal and ethical duty to zealously and faithfully represent only your interests.
In short, a good lawyer will always try and see if there is a way to settle the claim before filing suit as this saves all kinds of time and money and hassle. Settlements demand that all parties realize that they usually cannot get everything that they want or have everything go their way. It encompasses a compromise somewhere between each person’s goal. Where a claim cannot be settled then a lawsuit usually ensues. This process involves the victim as the plaintiff suing the culprit as the defendant. There can be more than one of each depending on what happened. For example, those accidents you see on the news where hundreds of cars slip on ice on a highway during a storm and crash into each other may involve dozens of parties.
The lawyer for the plaintiff drafts a Complaint and this is filed with the court. The defendant then files an Answer to the Complaint and he is also within his rights to file a Counter-Complaint if good cause exists. After this happens the case proceeds through the court system. The next phase is called the Discovery Phase and it is where each side can ask the other side to admit certain facts, questions about the case and for production of evidence and documents. Once this segment of the suit is completed then depositions can be taken and after this expert witnesses and doctors can be deposed as well.
To prevail at trial a party must prove that the other person was negligent by not properly following the law and that he was then damaged because of this negligence. Usually two type of witnesses are needed to prove this. One is an occurrence witness who saw the accident and can tell the court what happened and the other is a medical treater who can tell the court what the damages are. It is always important then to ask at the scene of an accident if anyone saw anything and then get their name(s).
By the end of the discovery phase the case will be ready for trial and many parties settle here. By this time, each party is in a much better position to see the strengths and weaknesses of their case. Settling a case provides closure and certainty. It means that a check is written right away and the expense, time, work and risk of a trial is avoided. It means that there will be no appeals either. It is important to remember that even if a victim wins at trial that the defendant may often file an appeal which consumes more years and more money. Most lawyers will charge extra to represent you on appeal so this is important to be noted up front. It is also important to realize that the result of an appeal can be that one party maintain victory or has it snatched away or is ordered to re-try the case. Imagine the time and expense of that! Then try and imagine that second appeal occurs!! Hopefully, people can be objective and reasonable and just settle most cases.