PERSONAL INJURY FAQs
A personal injury case is one in which you are alleging that another person or entity’s negligence, either partially or fully, caused or contributed to causing your accident and injuries. It’s a civil lawsuit in Circuit Court (the big Courthouse) where you are suing that person or entity to recover for your losses.
The examples in which most people are familiar include motor vehicle accidents or slip/trip and falls. However, other examples include bike, truck, or plane accidents; pedestrian accidents; dog bites; assault and batteries; negligent hiring, training, or retention; products liability; malpractice; and numerous others.
You are considered the Plaintiff, who is the one bringing the lawsuit. The Defendant is the person or entity you are suing. The Judge makes rulings on your case regarding the laws. The Jury are the fact-finders of the case and to whom you have to prove your case. Expert witnesses include doctors, accident reconstructionists, and economists. Fact witnesses are those who have information about different facts of the case such as those who witnesses the accident or authenticating documents. Pain and suffering witnesses are those with a special knowledge regarding the pain and suffering you’ve experienced. There are many others.
When we start a personal injury case, and before filing a lawsuit, the majority of the case is doing some basic investigation and you seeing your doctors and getting treatment. Your attorney may be in contact with the Defendant’s insurance company and do a demand to settle your case once your medical care is completed.
Filing a lawsuit is when the real action begins. The Defendant’s insurance company will hire an attorney to represent it. This is when the parties exchange discovery requests to produce either information or documents; depositions will be conducted, which involve a witness testifying while under oath; various Hearings on different issues in and the law of the case; and, ultimately going to Trial in front of a judge and jury to prove your case.
Usually, the answer is easy: the person or entity that you claim caused or contributed to caused the accident. However, there are other considerations to take into account such as how many people or entities are involved, who has the assets or enough insurance to pay you what you deserve, and the viability of recovery as to that person or entity.
Yes, in most instances, which is usually the case when an employee causes or contributes to causing your accident. Why? Typically, because the business has insurance, which gives a greater chance for recovery. This is done through what’s called “vicarious liability,” which is the liability that is imparted on another (the business) due to the control it has over the negligent person (the employee). However, there are some instances where the business or its insurance might not be liable, such as if the employee intentionally injures you.
If that’s the case, such as in a motor vehicle accident, your own insurance will defend you against the other party’s claim in the same way the defendant’s insurance defends him/her against your claim. My representation only relates to recovering from the defendant, not defending against his/her claim; however, in this instance, your insurance and I would work together since what one does or doesn’t do may affect the other’s case. And, while being sued is nerve-racking, in a personal injury context, it could have some added benefits such as your insurance company paying for experts, records, etc, which we could use for free in our case, thus riding on your insurance’s coattails.
The point is that you were injured by another and have suffered losses, both financially and physically/mentally, so the at-fault party should be held responsible for compensating and reimbursing you for those losses, which are called damages.
There are different classifications of damages in a personal injury case: economic, non-economic, and punitive. Economic damages include past and future medical care, past and future lost wages, and property damage. Non-economic damages include pain and suffering, loss of enjoyment of life, and loss of consortium. Then there are punitive (punishment) damages.
If you’re in an accident and have a personal injury case, chances are you were injured. When you’re injured, you usually seek medical care. Medical care costs money. Any money spent or insurance used for medical care you’ve received may be reimbursed to you. The cost of medical care you haven’t received but that has been recommended is the cost of future medical care. Thus, to calculate the value of medical care, you use the cost of what was spent for the medical care that you’ve received (past medicals) and the cost of what you would need to pay for recommended medical care (future medicals). The significance and value of your medical care is what, truly, drives the value of all other damages.
If you were working before your accident and you’re injured, you may now have limitations at work or can’t work at all. The income on which you’ve missed out due to those limitations or inability to work, which make up past lost wages. Depending on the severity of your injury, you may miss more work or may never be able to return to work, which make up future lost wages. The value of lost wages is usually determined by reviewing your tax returns before and after the accident to determine how much income on which you’ve missed out.
If you were in a car accident, your vehicle may be damaged or totaled. If your vehicle was damaged, either you or your insurance may pay to have it repaired. If your vehicle was totaled, an appraisal will be conducted to see its value before it was totaled. Thus, property damage is calculated based on the cost of the repairs or the vehicle’s value before it was totaled. If the repairs were paid, we’d ask for reimbursement; if the repairs were not paid or the vehicle is totaled, we would ask for money to make the repairs or to pay for the value of the vehicle before it was totaled.
Unlike medical care or lost wages, there is no attributable formula for calculating pain and suffering. It’s an arbitrary number picked out of thin air. However, the severity and value of your medical care as well as the amount in lost wages drives the value of pain and suffering. Why? Because one can reasonably assume that you’ve experienced more pain and suffering if you’ve had surgery and haven’t been able to return to work in over a year due to your injuries than if you’ve only received physical therapy and haven’t missed any work. The more severe and expensive the treatment and the more time lost from work equates to more pain and suffering, which makes sense.
This form of damages is similar to pain and suffering in that there’s no formula and it’s an arbitrary number; however, it’s based on the things that you are either limited in doing or are no longer able to do or enjoy in your life due to your injuries. What is the value of being unable to fish or ride a bike anymore? In being limited in what you can do with your children or how often you can go to church? The value is based on what other people feel that losing those things you enjoyed doing would be worth. This is why it’s often important to find jurors who have similar interests as you in order to have a better chance of getting more money towards these damages since the juror can put a value on how much they’d want in return for not being able to do the same activity.
Punitive damages, otherwise known as punishment damages, are awarded when the defendant knew that his/her/its conduct would have a high chance of causing injury(ies), and that the specific conduct reveals a disregard for life and/or safety. Punitive damages are capped at three times the amount of compensatory damages (financial losses) or at $500,000.00. A typical example of when punitive damages may apply is when the defendant is intoxicated such as driving under the influence (“DUI”).
There are three ways you can resolve your personal injury case: (1) The defendant or its insurance company just pays the policy limits, which is rare; (2) We settle your case, which happens most-often; or (3) We go to Trial and get a jury verdict, which occurs the least-often and is the last resort if either options (1) or (2) don’t occur.
This is the preferred way of resolving a case because it’s usually done before we file a lawsuit or spend a lot in costs, meaning more money in your pocket. However, in my experience, insurance companies only pay the policy limits when the policy limits are low (less than $25,000), the damages in the case are way more than what the policy limits cover ($200,000 in damages verses a $10,000 policy), and/or when there is no question that the defendant is liable for the accident (such as the defendant rear-ending you while you were stopped at a red-light). This usually occurs before filing a lawsuit, meaning attorney’s fees would be 33 1/3% of the settlement.
Settling your case involves you receiving a lump-sum of money, tax free, in exchange for dismissing your personal injury case against the party with whom you’re settling. After deducting attorney’s fees and costs, the remainder is used to pay any medical bills or liens on the case, usually at a lower negotiated amount, and then what’s left goes into your pocket to use however you wish. If we settled before filing a lawsuit, the attorney’s fees would be 33 1/3% of the settlement; if we settled after filing a lawsuit, attorney’s fees would be 40% of the settlement.
Going to Trial should be the last resort. Why? Because not only do my attorney’s fees jump from 33 1/3% to 40%, but this is when the true litigation and discovery process begins, meaning the costs on the case skyrocket to cover expenses such as depositions, experts, and preparing for Trial. Further, and most importantly, going to Trial can be a roll of the dice as you never know what a jury is thinking or going to do. Also, there may be a circumstance where if you get nothing or a certain amount lower than what was offered to settle the case by the Defendant in a proposal for settlement, you may have to pay the other attorney’s costs.
Trials can take a few days to a few weeks depending on their complexity. In simple personal injury cases, you can expect a few days to a week. During this time, you would need to be available for 8+ hours per day for up to a week, which means you’d have to take time off of work. Going to Trial is tedious and time-consuming, and your attorney devotes his entire days at work towards preparation for Trial during the few months preceding the Trial date.
If we’ve already started representing you and have spent time and money on the case, but you want to back out, there are a few ramifications. Not only will you still be responsible for paying your medical bills, but your attorney will file a lien on the case so that, in the future, if you decide to proceed with your case and you get money for your case, not only will you have to pay your new attorney, but you will have to pay the original attorney too. However, if you don’t proceed with your case or you don’t get any money for it, you won’t have to pay either attorney back, but you may still be responsible for paying your medical bills.