There are Three Required Ingredients That Make up a Successful Personal Injury Case
When it comes to successfully litigating personal injury cases the elements that must exist in order to win damage compensation are very clear. The first aspect is a liability, either through negligence or another violation of legal duty. Second are damages to the victim or the victim’s estate if there is a wrongful death. And finally, you must have a solvent defendant who can be made to pay the damages owed to you.
A more detailed explanation of these elements would include:
Liability: Once a defendant has violated their legal responsibility to another person and caused that person some sort of tangible harm, it is grounds for some liability, either a percentage of responsibility along with other defendants or complete liability if that person or entity is the only responsible defendant. In the eyes of the law, they are responsible for any damages incurred by the plaintiff in proportion to their involvement in the harm suffered by that injured plaintiff (or surviving family members in case of wrongful death). The main situation in which a defendant breaches their legal duty towards a plaintiff is through negligence, which is primarily considered irresponsible or brash actions, that have caused an “accident.” Negligence can assume many shapes and forms.
It’s easiest to think of negligence as the means to the end, or to method through which the violation of the legal duty occurred. There are degrees of that negligence. The most common form of negligence is simply not paying attention. When “gross negligence” breaches the defendant’s legal duty, then it is not a careless accident but is legally referred to as “willful intent.” A defendant who caused the injury through gross negligence has behaved in a way he or she knew could likely result in some kind of harm, such as drinking and driving. But he or she just didn’t care. On a different note, “intentional or deliberate torts” (a tort is a legal term for the violation of a legal duty) are constituted by intentionally inflicting trauma on another human being, including assault or other criminal acts against other people. This brief explanation should illustrate to you how negligence is often the most common form of violations against others’ legal rights to not be harmed. However, it doesn’t alter the fact that the victim/plaintiff must prove negligence, or some other form of defendant disregard of their legal duty, was the cause of the plaintiff’s injuries for which the defendant is liable.
Damages: This is a legal term that summarizes any and all monetary losses that the plaintiff has a right to claim in his or her personal injury lawsuit because of the defendant’s negligence. Damages do not exclusively refer to the specific injuries to the victim. It encompasses all of the harm done to the plaintiff from a financial perspective: the entire value of their case, as opposed to just the value of the plaintiff’s physical injuries. In an instance where the victim fractured his collar bone, the collar bone is the injury. The legal damages would be any monetary costs and, or, losses that result from the injury. Damages will either fall into the category of either General or Special.
General damages are of those which are viewed as non-economic. This means they are much more subjective and should be handled and presented very carefully to a jury in order for you to have the best chances of winning your civil trial. They must be realistic and not excessive as the amount of damages can be argued in court and adjusted if they are deemed to be greater than normal. Some common examples of General Damages include:
Pain and suffering.
Disfigurement.
Loss of consortium (or partnership, this can be classified as either a professional or marital partnership).
Emotional distress.
Physical disability (either short-term, long-term or permanent).
Because of the subjectivity of these damages, a clear and effective justification of your general damage suffering, to the degree that you sustained them, is a vital aspect of filing (and winning) a personal injury claim. General damages and the amount awarded for them differ with every case, even if the injuries may appear to be alike.
To better understand the subjectivity of general damages, imagine that two victims are in a blowout accident caused by defective tires where the vehicle rolled over and exploded. Both were badly burned. But one plaintiff was unconscious during the explosion. And though he suffered horrible burns, in his unconscious state he was not alert to experience the pain as it happened. But the other plaintiff was just as badly burned, and was fully alert enough to experience the full and terrible agony at the time of being burned. So even though both of these victims may end up with similar injuries and medical expenses, each experienced a different level of pain and suffering. So it is quite likely that the monetary damages each victim is entitled to would be different.
Hopefully, you better-understand why every accident will be different from the next and you should get a Texas personal injury attorney to help you correctly establish the reasonable and proper amount of damages to demand, based on the details of your suffering and in addition to the injuries themselves.
Special damages involve the actual economic cost of your accident, which makes them much more objective because the amounts are generally easy to assess, although this is not always the case. In an event where the resulting injuries are absolutely disastrous to the victim’s state of well-being, the plaintiff’s attorney might not be capable of determining how much longer their client will live, which makes lost wages damages extremely difficult to calculate based on their previous salary earnings and what they might have expected to earn through future promotions, or leaving that job to take a better one. So great care must be given to the more technical nature of the victim’s earning potential, like changes in job description, pursuing higher education levels, or more specialized certification. All of these variables and others could inevitably lead to a higher pay scale throughout the years.
Some examples of general damages are listed below.
Wages or earning capacity lost.
Court costs.
Medical costs, incurred in the past and future.
Damages to the family’s property.
Since winning compensation from the defendant is proportionate to special damages, it is very crucial to the plaintiff’s recovery for these damages are handled with care because they will most often take the form of monetary expenses previously paid or owed by the plaintiff, or maybe even the defendant if the injury is work-related or the plaintiff has some form of liability insurance to defray these costs; in which case, once the plaintiff wins damages, some of those monies might be owed the insurance carrier who paid those initial medical bills.
All of the damages that the plaintiff claims to have suffered from must be accounted for. The personal injury lawyers at our Law Offices spend a large amount of time on each case creating what is called a demand packet. This is an itemized accounting of all the client’s damages, which is generally submitted to the defendant’s insurance company, along with a request for a specified amount of compensation.
Solvent Defendant: Now that we’ve gone over the first two items that are necessary to execute a successful injury lawsuit, we arrive at what is probably the most important element of success in a personal injury lawsuit. You must have a defendant that is financially solvent. This means they have the means to reimburse you. Consider the drivers who accidentally crash their cars while swerving to avoid hitting a homeless person who was jaywalking. There is certainly provable liability and damages to the vehicle. But there is no way to pursue compensation since the homeless person who was the ultimate cause of the accident has no financial worth to provide the injured accident victim. It is unfortunate that some cases involving defendants without monetary resources, will leave victims hurt and with no way to seek compensation for the damages suffered.
Identifying solvent defendants is a critical area where an experienced injury attorney can greatly assist you in getting the financial justice you deserve. While many individuals will attempt to shed any responsibility through lack of monetary means, in most cases, they are simply obscuring their worth by trying to hide the money in separate, maybe even offshore, bank accounts, or giving all of their money to their spouse in order to appear worthless: hoping to avoid being sued or falsifying their lack of insurance. We see many insurance falsifiers because some defendants are so afraid their insurance carrier will drop them if they have to pay one more claim.
Regardless of what these defendants might attempt to do to prevent you from finding out the truth, our experienced legal team won’t be denied from recovering all possible monies that they may be hiding from you. A financial asset check is the most common way to discover the actual amounts of money they have that defendants try to hide. With few exceptions, once we have lined up all liable parties to your personal injury, the next step is a very stringent asset check. Luckily for our clients, many of these asset investigations turn up money that the defendant hoped we would never find.
Put our years of experience to work for you. If you want to know what your rights are, how to proceed with your claim and how much compensation you can secure from your personal injury case, regardless of how it happened or who is liable, we can answer all of your questions. Call a personal injury specialist with our Law Firm now at 1(800) 862-1260 (toll-free) for a free consultation and find out how we can help you.
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There are Several Vital Elements That go into a Successful Personal Injury Case
All successful personal injury cases or insurance claims must share the same three distinct elements in order to win damages. The first thing a plaintiff must prove is a defendant’s liability: either through their negligence or some other violation of their appropriate legal duty. The second is clearly presented damages that the victim, or the deceased victim’s estate, has suffered. And finally you must have a solvent defendant who can be made to pay the damages that are owed to you. A more detailed explanation of these elements would include:
1) Liability: Once a defendant has violated a clear legal responsibility to another person, it is grounds for liability damages that are appropriate to the part they played in the accident. These damages can be either a percentage shared by multiple defendants or total liability if one single defendant is the sole proximate cause of the mishap, which means one negligent person or entity is completely responsible Once proven guilty, all defendants are responsible for any damages incurred by the plaintiff in proportion to their involvement in the harm that the victim suffers. The primary avenue in which a defendant breaches their legal duty towards a plaintiff is through negligence, which is principally viewed by the law as either irresponsible or brash actions that have caused an accident. Negligence can take on various degrees of behavior.
The most common form of negligence is that the defendant was simply not paying attention and caused an accident. But when “gross negligence” breaches the defendant’s legal duty, then it is not merely a careless act. In legal terms, such behavior is called “willful intent.” Defendants who caused injury through gross negligence, have behaved in a way in which they clearly were aware that their actions were foreseeable and could likely result in some sort of harm. Drinking and driving, or refusing to provide safe workplaces once employers are aware of them are two common examples of willful intent. Whatever the reason, willful intent boils down to the fact that the defendant just didn’t care.
Intentional or deliberate torts (a tort is a legal definition for a violation of a civil duty) are the most reprehensible violations of a defendant’s legal obligation. Some torts can also involve criminal offenses like assaulting another person or intentionally creating an environment that is certain to cause harm to another. This brief explanation should illustrate to you how negligence is often the most common form of violation of others’ legal rights in Texas civil law. It doesn’t remove the responsibility of the victim/plaintiff to prove that negligence existed, its degree, or some other form of defendant disregard of their legal duty as being the cause of the plaintiff’s injuries for which the defendant is clearly liable.
2) Damages: This is the legal term for the monetary loss that the plaintiff has a legal right to claim after proving a defendant’s negligence. Damages do not refer to just the specific injuries to the victim (like only your medical bills). It is a general legal term that financially sums-up all of the value of the harm done to the plaintiff. In an instance where the victim fractured his collar bone, the broken collar bone is the actual physical injury. But the legal damages would be all monetary costs and, or, losses that produced by the injury (pain, suffering, lost wages, disability, property damage, etc). Damages will either fall into the categories of either General or Special.
General damages are those found to be non-economic. They are viewed as quite subjective and should be handled (and presented to a jury) very carefully if plaintiffs want to have the best chances of winning a civil trial. Some common examples of general damages include:
Pain and suffering.
Disfigurement.
Loss of consortium (or partnership, this can be classified as either a professional or marital partnership and in cases when a spouse who is a business partner is injured, damages for both professional and marital loss of consortium can be requested).
Emotional distress.
Physical disability (either short-term, long-term, or permanent).
Because of the subjectivity of these damages, a clear and effective explanation of general damage suffering, and the degree of that suffering, is an elemental aspect of filing (and winning) a personal injury claim. General damage amounts awarded differ from case to case, even if the injuries are alike.
For example, consider the plight of two victims who are involved in the same blowout accident caused by defective tires where the vehicle rolled over and exploded. Both were badly burned. But one plaintiff was unconscious at the time. And though he suffered horrible burns, in his unconscious state he was not alert to experience the pain as it happened. The other plaintiff was just as badly burned, and fully alert. This accident victim experienced the full and terrible agony as his burn injuries occurred. Even though both of these victims ended-up with similar injuries and medical bills, each experienced a different level of pain and suffering. So it is quite likely that the monetary damages each victim is entitled to would be different.
Hopefully, you better understand why every accident, and the circumstances surrounding it, is different from the next and you should get a personal injury attorney that has experience in all aspects of these types of cases who can help you correctly ascertain the proper amount of damages to demand, based on the details of your injuries, suffering and other elements that contributed to your damages.
Special damages refer to the actual economic losses you incurred as a result of your accident. They are much more objective as they are primarily market-driven and much easier to compute: although this might not always be the case. In an accident where the resulting injuries are enormously disastrous to the victim’s state of well-being, no attorney may be capable of precisely determining, for example, how much longer their client will live.
So, a precise determination of lost wage damages, for example, can be extremely difficult to calculate. This is because quite often, the victim’s salary history to-date, relative to what they might have expected to earn through future promotions or leaving that job to take a better one, are not always clear. This is why a lot of thought must be given to the more technical nature of the victim’s earning potential, like changes in a job description, the pursuit of additional higher education or more specialized certification. All of these variables and others would invariably lead to a higher pay scale throughout the years and a larger award for lost wages within the total damage package.
Some other examples of easier-to-assess special damages are listed below.
Court costs.
Medical costs incurred in the past and future, to include prescribed physical or other therapies if there is a long-term or permanent disability to the victim.
Damages to the victim’s property.
Should you win fair total damage compensation from the defendant, the size of the award will probably depend on the amount of special damages instead of those that are general. This is why it is very crucial to the plaintiff’s case that all damage assessments be handled with the utmost of care and sober consideration. Sometimes the plaintiff will already have medical bills or other monetary expenses that are ultimately owed to the plaintiff by the defendant, especially if the injury is work-related or if the plaintiff has some form of insurance to defray these costs. So once the plaintiff wins damages, some of those monies might already be owed to the plaintiff’s insurance carrier, or whoever paid those initial medical bills.
All of the damages that the plaintiff believes he or she has suffered must be clearly represented and presented as evidence at trial. The personal injury lawyers at our Law Office spend a great deal of their time on each case calculating damages and creating a demand packet that is presented to the defendant(s). It is a clearly itemized statement of all the client’s financial duress as a result of the defendant’s negligence that caused the accident, which is usually then submitted to the defendant’s insurance company.
3) Solvent Defendant: Probably the most critical element is the practical need for you to have a defendant (or defendants if there is more than one) that is financially solvent. This means they have the financial means to reimburse you for your legal damages. Consider the junk man who drives down your street on occasion and collects all that metal trash in his truck or trailer to then takes it to the recycle center. He hits your car (with you in it) and in addition to totaling it out, you have a legitimate injury and other damages totaling…say…$75,000. To add insult to injury, the junk man also doesn’t have any auto liability insurance. Logically, there is no way you can expect any reasonable compensation since the dirt-poor junk man who caused the accident has no financial means from which he can pay you. It is truly sad that in some accidents involving negligent defendants without the monetary resources will end-up leaving their victims hurt and without any way to seek compensation for the damages they have suffered. Sometimes that happens. Identifying solvent defendants is one of the more valuable ways in which an experienced personal injury attorney in Bexar County can be of great value to you in getting the justice you deserve. Many defendants might try to avoid their responsibility of paying legal damages for their negligence by claiming financial duress. Most of the time, they are simply hiding their true worth by stashing their money in separate – maybe even offshore – bank accounts, or converting all their assets to cash and hiding it in a safe deposit box in another state, or signing all their assets over to a trusted family member in order to claim financial hardship. We’ve even seen some defendants who falsely claim their lack of insurance because some of them are so afraid their insurance carrier will drop them if they have to pay yet another negligent accident claim.
Regardless of what these defendants try to do to prevent you from learning the truth about their finances, they can’t hide their assets from our experienced legal investigative team. We won’t allow any defendant excuse to keep us from finding, and recovering, all possible monies they try to hide from you. An asset check is the most common way to discover the true financial worth that defendants try to evade. With few exceptions, once we have lined up all liable defendants to your personal injury, the next thing we do is perform a very stringent asset check. Luckily for our clients, most of these investigations find the money or other liquidate assets that the defendant hoped we would never find.
Put our years of experience to work for you. If you want to know what your rights are, how to proceed with your claim and how much compensation you can secure from your personal injury case, regardless of how it happened or who is liable, we can answer all of your questions. Call a personal injury specialist with our Law Firm now at 1(800) 862-1260 (toll-free) for a free consultation and find out how we can help you.
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Insurance Companies and Their Lawyers Conspire to Defeat Your Legal Compensatory Rights
It’s a sad case when people don’t call an attorney until something happens that sinks their chances of winning: usually due to the tactics of an insurance company and their high-priced lawyers. We can tell you through experience that those who call us sooner than later have a much easier time winning their damage claims and cases than those who call us as a last resort, or if too much time has passed, or if they tried to handle this matter themselves and botched the thing. By first-attempting to represent themselves, and handle the issue alone, accident victims are often misled by the defendant’s insurance companies they have been dealing with. Insurance carriers know how to fool injury claimants and entice them with lowball compensation amounts.
We’ve spoken to many people who have settled, then later come to us when they realize they’ve been hoodwinked into thinking they’ve won, when in fact, not only did they lose, they were thoroughly beaten by opponents who knew the law, and the great deal they got by getting you to settle for pennies on the dollar. The crushed looks on their faces when we tell them they’ve already had their one bite at the “compensation apple” are sad indeed because they signed the release that accompanied that puny little check. So the defendant (and his insurance company) is off the hook and doesn’t owe them another dime.
Consider this example: our Law Firm was recently approached by a man who was filing a personal injury lawsuit after being injured in a car accident and suffered around $75,000 in damages. On the surface, his case was quite strong, and we could have secured a large settlement for him; much larger than his $75,000 claim amount had we represented him. However, the man was concerned about legal fees eating into his “winnings,” and he was convinced that he could represent himself effectively.
After a few months of negotiating with insurance adjusters, he was offered a $3,000 settlement for his injuries. He contacted our firm again for advice and said he was considering hiring an attorney to represent him. Ultimately, however, he decided to continue to represent himself. He thought that he could frighten the insurance company into offering him a fair settlement if he just threatened to file a lawsuit.
But he didn’t and continued to represent himself. The defense attorneys on retainer at the insurance company filed a list of admissions for the man to respond to. The man did not know how to respond (and likely did not even realize that a response was necessary). The defense attorneys received no response from the man, so they filed a motion for summary judgment of dismissal on the grounds that the man failed to respond to a list of admissions. The judge agreed to the judgment and the case was dismissed “with prejudice” because of his non-response to the admissions list request. The man not only walked away with nothing but because the case was dismissed with prejudice, he couldn’t go back and file again. A sad tale indeed.
Contrary to what you might think, knowing the law itself is only about 30 percent of the equation that produces a successful personal injury case. Just about every legal triumph is a direct result of experience, and knowing how to execute the procedures, prove the damages properly and establish a strong tie between the defendant’s actions and the plaintiff victim’s injuries. Your personal injury attorney’s ability to convince the jury that hears your case is another gift that separates your abilities from ours. This is how to win a personal injury trial. When it comes to any profession, from race car driver to CEO to personal injury lawyer, experience wins. The gentleman we just spoke of learned that valuable lesson the hard way. The next time you can bet he’ll look at what a personal injury lawyer can do FOR his wallet, because he now knows firsthand what an opposing attorney can do TO it.
Anyone can read a law book. A lot of you know how to read all those “free advice” legal Web sites. Many people fashion themselves as tenacious negotiators in business and know how to “do deals” similarly to the sort they think we might do in seeking fair settlements with insurance companies. But when it comes to personal injury, someone on your side must know how to apply the law by using the proper procedural methods and their skill that only years of experience have honed to a fine edge.
Against a lawyer they fear who has a strong case, insurance companies and their defendants are motivated by only one thing: to settle with you simply because your lawyer has a winning track record. Only this will command their respect and fear. A non-attorney will never create the fear you need in the minds of an insurance company, despite their (or your) threats against these defendants. Insurance companies know hundreds of ways to beat you when you fight them alone. And as soon as you take them on by yourself, or with inexperienced counsel, you’ll learn them soon enough.
Do you know how to respond to a motion for summary judgment, or how you’re supposed to answer interrogatories? Can you effectively depose witnesses in order to get to the bottom of the facts in your case? Do you know how to properly investigate an accident scene and what to look for? Can you follow the paper trail of defendants who try to hide their money? What recent rules of Texas personal injury law apply to your situation? Are there any recent rulings that might apply? What should you do if a countersuit is filed against you and you must act quickly or your civil damage suit will get dismissed with prejudice (that means you can’t file again)? These examples are only a sampling of the hurdles common to the everyday activities encountered by the experienced attorneys at our Law Firm.
Put our years of experience to work for you. If you want to know what your rights are, how to proceed with your claim and how much compensation you can secure from your personal injury case, regardless of how it happened or who is liable, we can answer all of your questions. Call a personal injury specialist with our Law Firm now at 1(800) 862-1260 (toll-free) for a free consultation and find out how we can help you.
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