There are two basic legal issues in most personal injury cases.
1. Whose fault is it? Lawyers call this Liability.
2. How badly is the person hurt? This is known as Damages.
There is also a third issue that is more practical than legal:
3. Where is the money going to come from?
These three issues are discussed below in more detail. We lawyers think about them when someone contacts us about a case.
In some cases the liability issue is easy. A good example is a car accident where someone rear-ends someone else. If A's car hits B's car in the rear, A is almost always at fault. Another good example is where a surgeon leaves a sponge in the patient - the surgeon is generally responsible for that.
In many cases, liability is a complicated issue. Sometimes no one is really at fault, and there are situations where everyone is partly responsible. Cases where the problem was caused by a government can be particularly difficult because there are laws that make it hard to sue them.
There is often expert testimony. An accident reconstructionist may testify about how an accident happened, relying on tire marks, crash damage, debris trails and more. Doctors may be brought in to explain why a surgeon was, or wasn't, at fault for a patient's problems. There are even accident cases where meteorologists discuss how weather conditions at the time of the incident mattered.
Liability matters. If you rear-ended someone else, most lawyers are not going to be interested in your case. If you fell somewhere, we want to know why it's someone else's fault instead of yours. If you had a bad result from surgery, that doesn't mean the doctor is at fault - sometimes bad things happen and it's no one's fault.
Damages is about whether someone was hurt, and if so how badly. This is generally about "pain and suffering", but often includes medical bills, lost wages and other "economic" losses.
In personal injury trials, damages are generally proven by doctors talking to juries, explaining the nature of the injuries, how they were treated, and what the future prospects are. The injured people usually tell juries about how the injuries affect their lives, including work, hobbies, and the impact of the pain.
Damages are important. If you were in an accident and didn't go to a doctor for a month, that suggests you weren't hurt, or that your injuries weren't very serious. If it's not that bad, then you don't have a valuable case. Be happy. It's a lot better than being badly hurt and having a great case.
Where is the money going to come from? We usually look for insurance, though there are cases where the money might come from a company or an individual. In most car accident cases this will be the insurance for the person who caused the accident. There are situations where that person has little or no insurance, and then we might look to your car insurance which may cover uninsured or underinsured situations.
There are also cases where there is no deep pocket. A good example is bar fight cases. Insurance usually does not cover "intentional acts", and the guy who slugged you in the bar doesn't have enough money and it's hard to get it out of him. It's also tough to sue the bar in most cases, and the bar's insurance may not apply. Then the bar files for bankruptcy and you've got nothing.
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Personal Injury
©2009 Warren Redlich, Esq.
