A personal injury lawsuit is a civil legal action that an individual takes after experiencing physical, emotional, or financial harm due to another party’s negligence, recklessness, or intentional actions. The injured person, known as the plaintiff, seeks compensation for the harm suffered, including medical expenses, loss of income, pain, and suffering.
In this article, we outline the stages of a personal injury lawsuit and explain the role a personal injury lawyer can play in securing fair compensation.
Negligence: The Basis for Most Personal Injury Claims
Negligence causes most personal injuries. These occur when people fail to act with the level of care that a reasonable person would exercise in a similar situation, resulting in harm or injury to another person.
In simple terms, negligence means mistakes, errors, or carelessness—people don’t intend to cause harm with their actions but unfortunately do so. For example, negligence can cause car accidents, medical injuries, and preventable falls.
Proving negligence involves presenting evidence to establish four key facts. In legal terms, these are known as elements.
They are:
- A duty of care that one person owes to another.
- Breach of that duty through dangerous decisions, actions, or inactions.
- Proximate causation between the breach and a harmful accident or incident.
- Damages suffered by the person to whom the duty was owed.
Here’s a deeper dive into each element and the role a personal injury attorney plays in securing fair compensation for the harm negligence causes.
Duty of Care
Duty of care is a legal principle that requires individuals or entities to act with reasonable caution and diligence in their daily activities. In other words, people must act responsibly to avoid causing harm to those around them. This is based on common sense.
Countless situations in everyday life involve a duty of care. For example:
- Motorists owe a duty of care to other drivers, their passengers, cyclists, and pedestrians.
- Medical professionals owe a duty of care to their patients.
- Property owners owe a duty of care to guests and other visitors on their premises.
- Restaurants, shops, and other businesses owe a duty of care to their customers.
Recognizing and proving the existence of a duty of care can be a complex exercise. A skilled attorney can evaluate your accident and injury to determine who owed you a duty of care.
Breach of a Duty of Care
A breach of a duty of care occurs when an individual or entity fails to act with the necessary caution and diligence in a given situation, putting someone else in harm’s way. In a personal injury lawsuit, proving a breach of duty is a critical step in establishing negligence on the part of the defendant.
Examples of actions or inactions that may constitute a breach of duty include a driver failing to stop at a red light, a store owner neglecting to repair a broken railing or to mop up spilled liquids, a construction worker storing flammable materials unsafely, or a doctor misdiagnosing a patient’s condition or prescribing an unsafe medication.
These are just a few illustrations. Numerous actions could constitute a breach of a duty of care. The most reliable way to determine whether someone breached a duty toward you is to speak with an experienced personal injury lawyer right away.
Causation
A lawyer pursuing a personal injury lawsuit for negligence must also prove that the defendant’s breach of duty caused harm to the plaintiff. In other words, there must be a clear link between the defendant’s decisions, actions, or inactions and a harmful accident or incident.
A simple way to think about causation is to ask: If the defendant hadn’t breached a duty of care, would a harmful accident or incident have occurred? If the answer is no, then you’ve established a causal link between the breach and the harmful event.
But you can also prove causation even if the answer isn’t so clear-cut. Often, multiple factors or actions contribute to an accident. In those cases, lawyers can ask whether any of those factors was a proximate cause of the harmful event— was the harmful incident a foreseeable consequence of the defendant’s breach of duty?
For example, to prove the proximate cause of an apartment building blaze, a lawyer might seek to demonstrate that it was foreseeable a fire might break out when a custodian piled flammable materials in the corner of a storage room with no ventilation.
Damages
The harm and loss a plaintiff has suffered are known as damages in a personal injury lawsuit. A lawyer must prove that the harmful event that a breach of a duty of care has caused has resulted in compensable loss—a loss that a court can remedy by ordering the defendant to pay the plaintiff money or perform some other action.
There are two general types of damages a lawyer can seek for a client in a personal injury lawsuit: economic and non-economic. Economic damages encompass quantifiable harm, such as medical expenses, lost income, lost job benefits, and property damage.
Non-economic damages address subjective harms not associated with a specific dollar amount, including pain and suffering, emotional distress, and loss of enjoyment of life.
Economic damages are typically easier to calculate because they involve tangible expenses and financial losses. Non-economic damages are harder to evaluate because they are based on the plaintiff’s personal experiences and difficulties.
Experienced personal injury lawyers understand the nuances of calculating each type of damage to ensure any action taken on your behalf seeks the maximum compensation allowable under the law.
Sometimes, a plaintiff may seek punitive damages, which punish the defendant for extremely reckless or malicious actions and deter others from engaging in similar behavior. An attorney can review your case and advise you about whether it warrants seeking punitive damages.
Steps in a Personal Injury Lawsuit
Every personal injury lawsuit is unique, so there’s no single path every case will follow, but many involve the following steps.
Hiring a Personal Injury Lawyer
You need a knowledgeable and experienced lawyer to handle your personal injury lawsuit if you want to recover the maximum possible compensation. An attorney can investigate your injury, gather evidence, communicate with insurance companies and other parties involved, and build a strong case on your behalf. We have described this process below.
Hiring a personal injury lawyer is affordable. Most offer a free consultation for you to learn about your rights and options. You’ll never have to pay for the time a legal professional spends with you in an initial consultation, even if you decide not to proceed with legal action.
Personal injury lawyers usually represent their clients on a contingent fee basis. Instead of charging upfront fees or hourly rates, they keep a percentage of the money they secure for you as their payment. In other words, you pay nothing unless they get you results.
It’s never too soon to hire a personal injury lawyer to handle your claim. The sooner you have an attorney in your corner, the better your chances of receiving the maximum compensation available. Hiring a lawyer also protects you from making mistakes like saying the wrong thing to an insurance adjuster or missing a critical statute of limitations deadline for taking legal action.
Building a Case
Once you’ve hired a personal injury lawyer, they will begin to build your case by investigating the circumstances of your injury, identifying parties who are liable to you, and evaluating the damages you could claim.
For example, a lawyer may interview witnesses, gather documentation of your expenses, obtain official reports, visit the scene of an accident, locate video evidence, and review your medical records.
In conducting this legwork, a lawyer aims to develop evidence they could use in court to prove your claim if necessary. Although most cases settle before reaching a courtroom (see below), experienced lawyers know that the most reliable way to build a winning case is to prepare as if it will go to trial.
Making a Claim
Once a personal injury lawyer has gathered evidence sufficient to prove someone’s liability for your damages, they file a claim for compensation on your behalf.
Making a claim doesn’t necessarily mean filing a lawsuit straightaway. A lawyer may first demand compensation from a defendant or insurance company directly in the hope they will acknowledge their liability and offer to pay a fair amount as a settlement.
If those overtures don’t succeed, a personal injury lawyer can file a lawsuit in court on your behalf. A complaint is a document in which the lawyer lays out the facts and legal concepts that establish the defendant’s liability for your losses. This starts the litigation process.
Pre-Trial Litigation
After a lawsuit begins, it enters a phase called pre-trial litigation, which refers to the legal processes and activities that occur before a trial takes place in court. This phase encompasses multiple steps that serve to educate the parties and the court, resolve disputes, and narrow the issues for presentation in a trial (if it takes place). A personal injury lawyer handles all aspects of pre-trial litigation on your behalf.
One core aspect of pre-trial litigation is discovery, a process through which the parties gather and exchange information relevant to their claims and defenses. Discovery serves as a critical tool for uncovering facts, assessing the strengths and weaknesses of each party’s case, and facilitating settlement negotiations.
Another component of pre-trial litigation is the practice of filing summary judgment motions, which are requests one party makes to the court seeking a judgment in their favor without the need for a full trial.
To succeed in a summary judgment motion, a party must demonstrate that there is no reasonable interpretation of the facts that would lead to a judgment in favor of the opposing party. If the court grants the motion, it effectively ends the case before trial.
Settlement Negotiations
Settlement negotiations play a central role in personal injury cases. They resolve most personal injury claims before proceedings ever reach trial. Both parties may have a strong incentive to settle a personal injury case because the trial process can be lengthy, expensive, and emotionally taxing. Settlements also provide certainty in a case’s outcome, avoiding the ever-present risk of an unfavorable outcome at trial.
Settlement negotiations can occur at various stages of a personal injury claim. The first opportunity for settlement usually arises during the pre-litigation phase, when the injured party and the liable party (or their insurance company) may negotiate to reach a resolution without filing a lawsuit.
If the injured party files a lawsuit, settlement discussions can continue throughout the discovery and preparation of summary judgment motions. Settlement discussions often intensify after the completion of discovery, when the parties have a clearer understanding of the evidence and arguments that each party might present at trial.
Settlement negotiations can even occur after the start of a trial, as the parties may opt to reach a settlement rather than proceeding with the uncertainties and costs associated with a trial.
Attorneys play an essential role in negotiating settlements. An experienced personal injury attorney can evaluate the strengths and weaknesses of your case, develop a negotiation strategy, and communicate with the opposing party or their insurance company on your behalf.
A lawyer can also advise you whether to accept or reject any settlement offers a liable party makes; however, an attorney cannot settle your case without your permission— you always decide whether to settle.
Trial
If a personal injury case is not resolvable through settlement negotiations or summary judgment, it may proceed to trial. Both sides present evidence and arguments to a judge or jury who then determines liability and damages. While trials can take more time and cost more than settlements, they allow for the hearing and decision of the plaintiff’s case in a public forum.
Once both parties present their cases, the judge or jury will determine whether the defendant owes the plaintiff money and, if so, how much. The judge or jury’s decision is legally binding, although either party may appeal if they believe an error occurred during the trial.
Collection of Damages
Experienced personal injury lawyers understand a case isn’t truly successful until their client receives money. After settling, winning a summary judgment, or obtaining a jury award at trial, a lawyer can take additional steps to ensure the liable parties pay what they owe. A lawyer might also pursue remedies to force the other side to pay, such as wage garnishment, property liens, bank account levies, or additional legal action.
Contact an Experienced Personal Injury Lawyer Today
For the injured party, pursuing a personal injury lawsuit can seem daunting, but it’s a job personal injury lawyers do every day. That’s why entrusting your personal injury case to an experienced attorney is the most reliable way to secure the maximum compensation for your losses.
If you or a loved one have suffered injuries in a preventable accident or incident, contact a skilled personal injury lawyer in your area today for a free case evaluation.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.