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Personal Injury Claims
Tort law covers a broad spectrum of potential injuries
to persons and property, but nearly all the cases involve insurable
interests--your life, your health, your home, your property, and
your car. For that reason, qualified insurance representatives might
be the best place to start to get information about the insurance
you would need to protect you if a claim were brought against you.
Should a claim on your own behalf arise, you probably will need
to contact a qualified personal injury attorney, following some
of the suggestions set out earlier in this chapter.
In addition to making a tort claim, you might want
to pursue other methods of complaint. Consumer protection agencies
can be found in every state. State attorney generals' offices offer
information and accept complaints. You also can contact state boards
that regulate the conduct of lawyers, doctors, veterinarians, and
even barbers. Check the government listings in your telephone directory
for the numbers of these agencies.
How do I know if I have a personal injury
case?
First and foremost you must have suffered an injury to your person
or property. Second, was your injury the result of someone else's
fault? It is not always necessary to have a physical injury to bring
a personal injury lawsuit, however. Suits may be based on a variety
of nonphysical losses and harms. In the intentional tort of assault,
for example, you do not need to show that a person's action caused
you actual physical harm but only that it caused an expectation
that some harm would come to you. (Assault is described in more
detail later in this chapter.) You also may have an action if someone
has attacked your reputation, invaded your privacy or negligently
or intentionally inflicted emotional distress upon you.
If I have suffered a personal injury and think
I have a case, how do I go about finding a personal injury lawyer?
Contact a local bar association for referrals to lawyers who handle
personal injury cases, talk with lawyers you know, or ask your friends
about lawyers they know or have used. You can find the telephone
number of the local bar association in your telephone directory.
Most lawyers offer free consultations, so you are able to meet with
as many as you like. Choose a lawyer you feel most confident about--and
comfortable with--to handle your case.
Should I bring any documents with me to the
consultation?
Yes, you should supply any documents that might be potentially relevant
to your case. Police reports, for example, contain eyewitness accounts
and details about conditions surrounding auto accidents, fires,
assaults and the like. Copies of medical reports from doctors and
hospitals will describe your injuries. Information about the insurer
of the person who caused the injury, is extremely helpful, as are
any photographs you have of the accident or of your injury. The
more information you are able to give your lawyer, the easier it
will be for him or her to determine if your claim will be successful.
If you haven't collected any documents at the time of your first
meeting, don't worry. Your lawyer will be able to obtain them as
well.
What kind of legal fees should I expect in
a personal injury case?
Personal injury lawyers generally charge their clients on a contingent
fee basis. That means you pay your lawyer only if you win. Your
lawyer is paid a percentage of the total amount recovered. You'll
sign what is called a retainer agreement with the lawyer you choose
to represent you, clarifying all fees and charges. Remember that
even if you lose the case, you are likely to have to pay the expenses
of investigating and litigating your case, such as court filing
fees and payments to investigators, court reporters, and medical
experts, as well as the expenses of securing medical records and
reports.
What can I expect after the first consultation?
If a lawyer believes your claim is one you can recover on-and you
have signed the retainer-he or she will proceed with gathering information
about your claim. In order to arrive at a figure for damages, your
lawyer will need to determine the extent of your injuries, including
pain and suffering, disability and disfigurement, the cost of medical
treatment, and lost wages. Your lawyer then provides your damages
figure to the insurer of the person who injured you. If the insurer
considers it a valid claim, the case is likely to be resolved early
on and won't have to be tried in court.
If I am not happy with my lawyer, do I have
to keep him or her?
No. You have a right to hire and fire any lawyer at any time.
What does it mean to settle a case?
Settling a case means that you agree to accept money in return for
dropping your action against the person who injured you. You'll
actually sign a release absolving the other side of any further
liability. To help you decide whether to accept the settlement offer,
your lawyer will be able to provide a realistic assessment of whether
a lawsuit based on your claim will be successful. (Settlement also
can take place at any point in a lawsuit once it is filed, including
before trial or even after a case has been tried but before a jury
reaches a verdict.) The decision to accept a settlement offer is
yours, not the lawyer's.
What happens if I file a lawsuit?
You become the plaintiff in the case and the person who injured
you becomes the defendant. Lawyers for each side (and for the insurer)
typically begin gathering facts through exchange of documents, written
questions (interrogatories) or depositions (questions that are asked
in person and answered under oath). This process is called discovery.
After discovery, many cases get settled before trial. Only a small
percentage of personal injury actions ever go to trial. Of the cases
that do go to trial, most plaintiffs ask for a jury to hear their
case, but personal injury actions can be decided by judges as well.
That is known as a bench trial, as opposed to a jury trial.
What if more than one person has caused my
injury?
You must bring an action against every person who causes your injury.
The negligence of two drivers, for example, may have produced a
collision in which you were injured. According to traditional legal
principles, each one could be held 100 percent liable to you. In
a more recent legal trend, however, many jurisdictions have abolished
such "joint and several" liability and each defendant,
known legally as a "joint tortfeasor," becomes responsible
for only that portion of the harm he or she caused. This is the
rule of comparative negligence, which exists in most states. (See
the section titled "Negligence," for more on comparative
negligence.)
What will I get if I win my case?
If you win, a judge or jury awards you money, known as damages,
for your injuries. That amount can include compensation for such
expenses as medical bills and lost wages, as well as compensation
for future wage losses. It also can compensate you for future lost
wages and medical expenses and for physical pain and suffering.
In addition, you may receive damages for any physical disfigurement
or disability that resulted from your injury. The money is intended
to restore your loss, is not considered as income, and is not taxable
as income by the federal government or the states. Note that an
award of damages does not necessarily translate into hard cash.
You may have to take further legal steps to actually collect the
money. If a defendant against whom you have won a judgment does
not pay it, collection proceedings can be initiated. If the defendant
owns property, for example, you may be able to foreclose on it.
Another option would be to garnish the defendant's wages. Your personal
injury lawyer-or any lawyer you contact-would be able to help you
in this regard.
Will the person who caused my injury get punished?
No. Punishment comes from criminal cases, not civil cases. Defendants
in civil actions for personal injury do not receive jail terms or
stiff fines as punishment. Those are criminal sentences and personal
injury cases are civil disputes. But juries and courts can award
what the law calls punitive damages when the defendant's intentional
acts have injured you. These awards are rather rare. Courts use
them to punish people (and more often large corporations) who have
behaved recklessly or against the public's interest. Courts also
hope that ordering the payment of punitive damages will discourage
such defendants from engaging in the same kind of harmful behavior
in the future.
Does a personal injury lawsuit have to be
filed within a certain amount of time?
Every state has certain time limits, called "statutes of limitations,"
that govern the period during which you must file a personal injury
lawsuit. In some states, for example, you may have as little as
one year to file a lawsuit from an automobile accident. If you miss
the statutory deadline for filing a case, your case is thrown out
of court. (As explained later in this chapter, limitations in medical
malpractice cases are often calculated differently.) You see, then,
why it is important to talk with a lawyer as soon as you receive
or discover an injury.
What if a person dies before bringing
a personal injury lawsuit?
It depends on whether a person dies as a result of the injuries
or from unrelated causes. If a person injured in an accident subsequently
dies because of those injuries, that person's heirs may recover
money through a lawsuit. Every state has some law permitting an
action when someone causes the wrongful death of another. And if
a person with a claim dies from unrelated causes, the tort claim
survives in most cases and may be brought by the executor or personal
representative of the deceased person's estate. |
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