by Larry W. Lockwood, Jr., Esq.
It never ceases to amaze me at the misconceptions many people have about what a personal injury claim is, or what they may be entitled to. This little article is not meant to be legal advice, nor is it intended to be an exhaustive law school dissertation on the subject of personal injury lawsuits. I do hope it may help the casual reader or potential client understand some of the concepts involved in injury suits.
First, let me define some terms you may have heard, but may not have fully understood:
"Personal injury." We use the word "personal" in every day language to mean private or confidential, but that is not what the word means in the law. The word simply means "to the person." There are many "injuries" in law for which a person may seek compensation. Injury to property, business, and reputation among them, but the word "personal" here simply means that the specific injury for which compensation is sought is an injury to a person.
"Negligence." The legal responsibility to pay for someone else's injury is not automatic. There must be a legal reason to impose that obligation. For example, were I, your humble lawyer, while walking down the street, to trip on my flip flops while daydreaming about a summer day, and fall and hurt myself, there would be no reason to expect you a mere innocent bystander to pay for my emergency room visit. That obligation would be imposed if you, instead of being an innocent passer by, were driving down the road, texting on your cell phone, when, because you were not using "ordinary care" in driving, ran me over.
"Contributory Negligence." In Virginia, and a few other states, if a person is even just a little responsible for his own injury, even just 1%, that person cannot recover for his or her injury. There are exceptions to this rule, and only an attorney can determine if an exception exists.
"Verdict" versus "settlement." Many people use the words interchangeably, but they are not the same. A verdict is won in court, a settlement occurs outside of court and without a trial. Nobody wins a settlement in court, and no one gets a verdict outside of court. It's that simple.
Wrong. In order to have an individual, corporation, or their insurance carrier, held responsible for an injury, there must be a reason. Generally, that reason is "negligence," which broadly means not being reasonably careful for the safety of those around you. If someone runs a stop sign, and causes an accident, they are negligent, and will be responsible for the damages. Also, if you are a customer in a restaurant, and there is something slippery on the floor, and you slip, fall and hurt yourself, the store owner can be held liable for your injury provided you can prove that the store operator knew there was a hazardous condition and failed to remedy it. In some instances, the law requires a greater showing of fault. For example, in Virginia, if you are in a public park, and are injured, you will not be able to hold the City, County or State that runs the park liable unless you show "gross negligence." Gross negligence is an almost criminal neglect on the part of the park, and is a much harder to prove standard than ordinary negligence. Each case is different, and there may be circumstances where another is "strictly liable" for damages, even if the other person was not negligent. These are very complex, and fact dependant, legal issues and it takes a well trained and experience attorney to sort them out. Don't try to do it yourself.
So you were hurt, and someone can be held legally responsible, what does that mean? Basically, once responsibility for an injury is proven, the person who is responsible can be held liable in court for all damages flowing from that injury. This includes payment of medical bills, wages for lost time at work, in the past, and expected into the future. It also includes a monetary award for pain, suffering (physical and mental,) inconvenience, and embarrassment.
No, not necessarily. Most personal injury claims can be resolved without going to court, but that doesn't mean the case doesn't need to be proved. An experienced personal injury attorney will gather the facts, and gather evidence of your damages (medical bills, medical records, proof of lost earnings in the past and projected into the future) and present that information as a formal demand package to the responsible party, along with a legal explanation of why the wrongdoer can be held liable. The responsible party is usually the insurance company of the wrongdoer. A well thought out and researched demand package can convince the insurance company to settle without court. However, if a settlement cannot be reached, then court is available to decide the issue when the parties cannot agree. An experienced and well trained personal injury trial attorney knows exactly how to present your case in court to maximize both the likelihood of your winning, and the amount of damages awarded.
Maybe. You should always at least consult an experienced personal injury lawyer, before deciding to go it alone. I very regularly, freely consult with people who had a simple fender bender, and a quick emergency room visit with little or no injury, and tell them how to proceed to settle their own case -- I don't charge for that! I am glad they consult with me so that I can make sure they are not missing something important, like the existence of medpay which could triple their in pocket recovery in certain circumstances. I am glad to make sure that people who have very small claims know at least the basics so they don't get taken advantage of, or make a stupid mistake. Many times, people who think they have a slight injury, have a much more severe one, which would be made worthless by a quick settlement. At least talk to a lawyer before you settle your personal injury case. And please don't be one of those many people who call me and say "I just settled my personal injury case, I signed the release, did I do the right thing?" to which I always reply, "sorry pal, right or wrong, doesn't much matter now, now does it?"
We do all the work: from investigating what happened, who was at fault, how it can be proved, who must be contacted to get a financial recovery, and what insurance policies may be available to pay for damages. We work with your physicians to get medical records, and bills. We work with your employer to prove lost wage damages. We work with the insurance company to make sure they have the information to evaluate the claim for settlement, including responding to their requests for additional information. If the matter cannot be resolved, we take it to court, and get a verdict. Basically, we do ALL THE WORK, while you, the client concentrate your life, and getting the medical care you require to get better.
But don't worry, unlike other firms, you will not be forgotten. You can always talk to your lawyer, whenever you want to, and it is my policy to return my client's calls within twenty-four hours. When something important happens, we will let you know right away. We will call to check on you as your case progresses to see how you are doing, and to keep up with your medical status – in other words, we really do care about you and your case.