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The Elements of Success in any Personal Injury Lawsuit or Insurance Claim
Anyone who has legal standing can file a lawsuit for any purpose in Texas. Those who have been legitimately injured by someone else’s negligence certainly have legal standing to do that. Filing is one thing. What really matters is being able to file a personal injury lawsuit with evidence that you can clearly establish. In order for your case to be successful, this evidence must effectively meet your plaintiff’s burden of proof in each of the four clear elements of a successful personal injury case or insurance claim. They are duty, breach, causation, and finally, damages. They are listed again below and include what the plaintiff must do in order to clearly prove each of these four elements:
Duty – The first element of a successful lawsuit is the ability to clearly show that the defendant owed you a duty of care to act in a way that wouldn’t cause you harm. Often, people owe each other the duty to behave as reasonable as possible in order to avoid hurting others. In short, people that we would normally trust to look after us owe us that duty to do so. This means not only avoiding unreasonably careless activities but furthermore, the defendant must take affirmative (clear) precautions to protect others from getting hurt in the same way a reasonable person would do so. The reasonable person’s duty of care is only one of many potential duties of care that may apply to the defendants in your case. The applicable duty of care in your specific case greatly varies according to the people, the nature of the injury and the circumstances involved.
Here are just a few examples of instances in which the duty of care may vary, and that few free legal advice Web sites rarely clarify:
Homeowners. Property owners generally owe a pretty low duty of care to trespassers who come onto their property without permission or those who are there to commit a crime. In some instances, though, property owners may have a much greater duty to protect children from getting hurt on their land, especially their neighbors, or children who are “innocently trespassing.” Visitors who the owner allows on his property also have a right to expect a reasonably high duty of care.
Shopkeepers. Have you ever noticed signs at stores and restaurants warning you about wet floors or steps or other hazards that might cause injury? Now we’re not obligated to put up signs warning customers and other guests of similar hazards? A high duty of care is already assumed. But stores and other places of business owe a modestly greater duty of care to customers because the law views them as strangers. So a higher duty of care must be displayed in their warnings. And every reasonable must be made by the owner to prevent these visitors from getting hurt on the property. The signs do not uniformly relieve shopkeepers of that higher legal duty if they don’t make such efforts at care.
Hotels and public transportation. Like stores and other businesses, Innkeepers and common carriers owe their patrons a particularly high duty of care in many instances.
Doctors and medical professionals. Doctors and other members of the medical profession receive special training in order to be able to do their jobs. We expect that they’ll use their specialized knowledge and skill when treating and diagnosing patients. This is why the law demands that doctors treat patients with an unusually high level of care than they would owe other people whom they are not treating. While they are working, doctors and other medical professionals must exercise the care expected of any reasonable medical professional, rather than simply that of a reasonable person. By the very nature of their jobs, all healthcare professionals are held to a much higher obligation than the rest of us.
Drivers. In many states, the duty of care owed by a driver to a passenger depends on whether the passenger is paying for a ride or simply a guest. In states, such as Texas, where cab drivers, bus drivers and chauffeurs must be much more careful to protect the safety of a paying passenger in his car, their duty of care is usually higher-than-normal.
There are also a variety of other less obvious duties of care that might apply to your case. Depending on which duty of care applies in your situation, you may have a much easier time proving the defendant’s violation of duty of care. Or you might have a much more difficult duty to prove. These variations represent one reason why after you suffer an injury in Bexar County or anywhere else, personal injury legal advice that’s free is rarely enough to give you an accurate picture of your individual situation. You need the services of a personal injury lawyer who specializes in this form of the law.
Breach – After showing that the defendant owed him a duty of care, a successful plaintiff and his attorney move on to prove that the defendant breached that duty of care. Proving a defendant breached the appropriate level of duty that was owed you usually requires establishing clear and explicit evidence to show exactly what the defendant did, or failed to do, that constitutes the breach. If your case goes to trial, the jury will consider your evidence of an alleged breach, along with all of the circumstances involved in the accident, and determine whether the defendant did, or did not, breach the duty of care that you will claim. And only an experienced personal injury attorney can make juries understand the detailed nuances of the breach, and how they apply to a specific case.
Negligence is the most common way of proving that a defendant violates his duty of care. It refers to what you believe as simple carelessness. If a defendant is careless, even during the critical seconds when your accident occurred, he may be held legally responsible for the injuries that result.
Gross negligence (usually seen as a complete disregard for the safety of others) is another way in which people violate the duty of care they owe to you. An action constitutes gross negligence when it’s highly likely to cause injury to other people, or willfully damage another’s property. Driving while intoxicated is one – of many – example of gross negligence. In the end, grossly negligent defendants just don’t care.
Finally, you might prove breach of the defendant’s applicable duty of care by demonstrating the defendant acted with the intention of causing you harm. This is viewed as patently gross negligence. If your injuries are the result of physical assault by the defendant, you’ll likely argue that his or her actions, along with the injuries and damages arising from them, were intentional. If the evidence in your case is this strong, the odds of a favorable outcome in your case can become quite good.
Causation – The ability to prove causation is a critical part of any personal injury lawsuit. It’s just not enough to show that a defendant breached the duty of care he owed you. You must also demonstrate that his actions produced your injuries. This is not always easy, especially if you were unconscious when your injuries occurred, or if many different parties might have contributed to your accident. Furthermore, the defendant you name in your lawsuit will probably try to prove that your injuries were caused by someone else, or even by you. If you can’t make this crucial link between the defendant’s actions and your injuries, your case will quickly unravel and you’ll lose.
Damages
Now we get to damages. You might see it as the “holy grail.” But we’ll warn you right off the bat that any free online legal advice web site that tells you a specific amount to expect from any personal injury damage suit, you should view those amounts with a liberal dose of salt. Sharing typical recovery amounts for generic types of personal injury cases can be one thing. But any suggestion that you can expect to recover “X-amount” of money for injury compensation by anyone with no knowledge of your specific case is clearly misleading and an outright disservice to you.
If you are successful in proving the defendant’s liability, the final step finds him/her/them paying damages to you in order to fairly compensate you for your serious injuries. Now don’t confuse injuries with the legal term “damages.” If you are involved in an accident and break your legs, your broken legs are your injuries. Your damages include the cost of treating your broken legs, the wages you’ve lost if you can’t return to work during your recovery, and the value of other economic and non-economic losses you sustained as a result of the accident that you have now proven the defendant caused.
Your tangible financial losses are called special or economic damages. Most of the time, examples of special damages include lost wages, loss of earning capacity for the period of time you can’t work because of the injury, and your medical bills. Sometimes, the cost of medical treatment can be easy to calculate. Other times these costs are not, especially if your medical treatment continues longer than expected, or the full extent of your injuries remains unknown. Then the task of calculating special damages is more complex. Calculating loss of earning capacity is often a complicated matter. If you’re unable to return to work, you must account for the time value of money you’ve actually lost, as well as hypothetical promotions, raises, and career changes when calculating how much you’ll demand in defendant compensation for the income you are unable to earn in the future; regardless of whether it takes months or years for you to recover.
Intangible non-economic losses are called general damages. These damages include compensation for your emotional suffering associated with the accident. The amount of general damages that a case is worth depends almost exclusively on the circumstances surrounding the injury and the degree of pain and suffering. This is why general damages can vary greatly from case to case even if the physical injuries are very similar. After you’ve been injured in or around Texas, free personal injury legal advice you find online is almost never sufficient to help you understand the amount of general damages you may be entitled to. Because general damages are relative and subject to many different factors (and sometimes interpretation). Contact our Law Firm for a free consultation to find out what your case is really worth. After we ask you some important questions about your situation, we’ll be in a much better position to give you a good understanding of how a jury might put a price tag on your pain and suffering and other emotional losses: or the amount that may be recovered through aggressive negotiation with those liable for your injury and their liability insurance underwriters.
One of the biggest mistakes that personal injury victims make who don’t hire lawyers is failing to account for all of their damages. Once you collect money from a defendant, you can’t go back and ask for more compensation later. There are no “do-overs.” So it’s important to get it right the first time and recover all you’re entitled to from the defendant to compensate for both your tangible and intangible losses.
If you’ve suffered a personal injury in or around Texas, personal injury legal advice you find online is never enough to protect your rights. Even the smallest variation in the conditions of your accident can have crucial implications on the way your case is handled and how it’s resolved. For a free assessment of your legal situation, call our Law Firm at 1(800) 862-1260 (toll-free). We’re available around the clock seven days a week to help you.
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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 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 (or “duty”) 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.” And 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. And there are degrees of that negligence. The most common form of negligence is simply not paying attention. And there are many ways that can happen; most of them having to do with carelessness or inattention by the defendant to what is going on.
But 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 was aware could likely result in some kind of harm, such as drinking and driving. 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 to not harm them and that was the cause of the plaintiff’s injuries for which the defendant is liable.
Damages: This is a legal term that sums up 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 broke a leg or suffered burns, the fracture or the burns are the injuries. 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 makes them much more subjective and necessitates that they are 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. Having to backtrack on the amount of damages you are asking might have a negative effect on your case. 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 if a family member is also involved in the business, it can include both.
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, and 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. One plaintiff was unconscious during the explosion. 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 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 personal injury lawyer to help you correctly establish the reasonable and proper amount of damages to demand, based on the details of your suffering in addition to the injuries themselves.
Special damages involve the actual the economic cost of your accident, which makes them much more objective because the amounts are generally easy to assess, although this may not always be the case. In the 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. Or your treating physicians might not yet know how long it will take before you are completely recovered. These are two examples of the difficulty in determining with any accuracy, the value of lost future income. Just using previous salary earnings is not always a good indicator either. What might the injured plaintiff expected to earn through future promotions, or leaving that job to take a better one? Great care must be given to the more technical nature of the victim’s earning potential, like changes in a 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 of the plaintiff’s long-term disability.
Some examples of general damages are listed below.
Wages or earning capacity lost.
Court costs.
Medical costs, incurred in the past and future, including physical, psychological and occupational therapy.
Damages to the victim’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 extreme 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 must be accounted for, to the penny. Your local personal injury lawyers at our Texas Law Office spend a large amount of time on each case to create what is called a demand packet. This is an itemized accounting of all the plaintiff’s damages, which is generally submitted first to the defendant’s insurance company (assuming he has one) along with a request for a specified amount of compensation.
Solvent Defendant: Now that you understand the first two items that are necessary to execute a successful injury lawsuit, we now deal with 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 actually caused the accident has no financial worth with which to pay damages to the injured accident victim. It is unfortunate that some cases involving defendants without monetary resources will leave victims hurt and their property damaged; with no way to seek compensation for the damages they have suffered.
Identifying solvent defendants is a critical area where an experienced attorney can greatly assist you in getting the financial justice you deserve. Many individuals will attempt to evade any financial liability through a 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 is quite experienced in identifying all possible monies that defendants 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.
If you’ve suffered a personal injury in or around Texas, personal injury legal advice you find online is never enough to protect your rights. Even the smallest variation in the conditions of your accident can have crucial implications on the way your case is handled and how it’s resolved. For a free assessment of your legal situation, call our Law Firm at 1(800) 862-1260 (toll-free). We’re available around the clock seven days a week to help you.
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Even More Critical Benefits of Having Our “Pro Bono” Lawyers on Your Side
It is a common assumption by the general public that Texas law will promise them equal financial recovery for their injuries when this is actually false. We all have the right to such financial compensation. We must secure it for ourselves. We have to ask for it; often forcefully. It’s not automatically given to us just because we show up in court.
Texas Civil Practices and Remedies Codes state only that victims in the case of a negligence-induced accident may seek out compensation, following specific legal guidelines. The burden of proof is on them, the victim-plaintiffs. To be compensated, they must convince the jury that the defendant’s decisions which led to their actions can be considered the proximate cause, or reason for the injuries that they experienced. Personal injury cases can get extremely contentious. It takes a special kind of attorney to be successful in this type of law. Now a host of less than knowledgeable people is more than willing to give you “free legal advice” (which is often worth what you pay for it). And you might be able to get a rudimentary understanding of personal injury law as it applies to your particular situation by visiting legal web sites or doing some basic legal research (which many find to be quite boring and tedious). Successfully executing the proper civil action that produces the compensation you and your family need after serious accident injuries is not nearly as easy as it might appear.
You also might have a relative or friend who is a lawyer who wants to protect your best interests and represent you in a personal injury claim or lawsuit. Though we would never tell you what to do, we will say that when it comes to legal representation of any type, you might want to reconsider retaining anyone who might have a difficult time emotionally disassociating him or herself from your case. Personal injury law is quite intense and these kinds of attorneys must be pragmatic, focus solely on the facts of a case, and be cool under fire in order to succeed in winning your case. What happens if that friend or relative attorney doesn’t win the case, or accepts a less-than-fair settlement and leaves even more on the table due to inexperience, or thinking more with their heart than their head? How will you feel about your friend or relative then? Very rare is the case where family members or friends belong in your legal business. And they can support you in much better, and safer, ways.
If you’ve suffered a personal injury in or around Texas, personal injury legal advice you find online is never enough to protect your rights. Even the smallest variation in the conditions of your accident can have crucial implications on the way your case is handled and how it’s resolved. For a free assessment of your legal situation, call our Law Firm at 1(800) 862-1260 (toll-free). We’re available around the clock seven days a week to help you.
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Knowing the Law is a Given: but Knowing Your Opponents is Critical
Here’s another little-known fact. Knowing how to “read” the law or do legal research is only about 30 percent of the equation that produces a successful personal injury case. It’s the easiest 30 percent. Much like being a successful race car driver or professional athlete, legal success is directly tied to the experience of your Bexar county personal injury attorney. This involves knowing how to precisely execute the procedures the law demands, proving the damages properly, and establishing a strong tie between the defendant’s actions and the plaintiff/victim’s injuries. Most importantly, however, is being able to convince a suspicious insurance company that your damages are legitimate, as well as a jury of the justness of your civil claim. This is how to win personal injury claims and civil cases. When it comes to any profession, from professional athlete to CPA to personal injury lawyer, experience always wins.
Anyone can read a law book or purchase internet access to Westlaw. A lot of people are also tenacious negotiators in life and know how to “do deals.” 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 an intimate understanding of the task before you and those who oppose you.
Sadly, most people don’t call an attorney until their chances of winning are extremely low. We can tell you through their personal stories that those who call us quickly have a much easier time winning their damage claims and cases than those who wait even a few days to call us. Those who are not successful usually reach out to us after too much time has passed (usually after they’ve been knocked out in the first round of a 15 round bout).
By first attempting to represent themselves and handle the issue alone the victims generally are misled by the insurance companies they have been corresponding with. Insurance companies know how to “shine-off” injury claimants and entice them with low-ball compensation amounts. We’ve spoken to many people who have settled, and then come to us when they realize they’ve been fooled into thinking they won, when in point of fact, not only did they lose, they got creamed. One time a person chose to keep what he would payout to an injury attorney and got absolutely creamed in a settlement that was no better than ten cents on the actual dollars he would have won had he retained an experienced accident lawyer.
Many times an insurance company pressures accident victims to settle their lawsuits for less than they are worth: often much less. Now we assiduously believe in victims accepting a fair settlement offer. If it serves their needs, it benefits them. But jumping on an unfair settlement offer due to your dire financial straits can absolutely devastate your legal rights. For once accepted, you permanently give up your right to sue the defendant for more once you discover that the settlement was enough. That quick settlement is all you will ever collect from the defendant. So it’s important not to accept any offer unless it’s fair. And the only way for you to know a fair settlement offer from an insurance company that wants to victimize you is with the assistance of a Texas personal injury attorney. if that quick settlement amount is not the end of your expenses? Insurance companies know it’s not and they’re trying to get “out from under” those future bills and expenses. Since settlements are always binding, do you really want the defendant and their insurance company to get away with paying you less than you deserve for your accident claim! Contact our Law Firm to learn what your case is really worth. Then you’ll certainly know whether or not the settlement offer is truly fair, or merely the “ante” on the total worth of your claim.
Also, a non-attorney, or one who is inexperienced, or not respected by the defendants and their insurers, will never create fear in the minds of your opponents. Insurance companies and their expensively-tailored lawyers know at least a thousand ways to defeat you and your inexperienced legal counsel. Do you know how you must 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? What if your opponent asks the court for a motion of summary judgment a week after the accident when you know nothing and haven’t even gotten out of the hospital yet? Inexperienced lawyers run to the courthouse too soon. They get slaughtered for their rash initial act.
Can you investigate an accident scene? Can you follow the paper trail of defendants who try to hide their money? What recent rulings in Texas personal injury law might apply to your situation? What should you do if a counter-suit 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 ”pro bono” injury lawyers with our Law Firm. Remember, you’re not risking a dime.
If you’ve suffered a personal injury in or around Texas, personal injury legal advice you find online is never enough to protect your rights. Even the smallest variation in the conditions of your accident can have crucial implications on the way your case is handled and how it’s resolved. For a free assessment of your legal situation, call our Law Firm at 1(800) 862-1260 (toll-free). We’re available around the clock seven days a week to help you.
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The Injury Attorneys at our Texas Law Offices Can Help at no Financial Risk to You
Before you speak with an insurance company, or accept even a single dollar of payment or compensation from any defendant, or sign anything, or attempt to file a lawsuit on your own, you must contact a competent lawyer. If you don’t do this immediately, you’re seriously compromising your legal rights to win fair compensation for your injuries, or for your beloved family member in the event of wrongful death at the hands of someone else’s clear negligence. If you choose not to contact us, that’s fine and good luck. But call an experienced attorney: any experienced attorney. You’re walking around a shooting gallery with a target on your back otherwise.
If you or someone you love has suffered from a personal injury, the local injury attorneys at our Texas Law Office stand ready to assist you and make sure you get the justice and reimbursement you deserve. The consultation is free. If we take your case, you don’t have to pay us a penny because our services are “pro bono” until the day your case is won or you accept the settlement that meets your needs: all of your needs. Then you only share a small, affordable percentage. We have been fighting for our injured clients for over 30 years and won a tremendous number of personal injury damage claims and cases worth untold millions of dollars, We’ll do whatever it takes to help you, too.
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 anticipate 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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Can You File for a Personal Injury Claim or Lawsuit?
The only people who have legal standing to file suit against another person or business entity for damages resulting from an injury are those who were owed a legal duty that was clearly violated by the defendant. In a broad sense, we all owe each other a basic legal duty in life to exercise a practical amount of care and good judgment so we don’t harm one another.
Take, for example, the simple act of driving a car. All drivers are expected to operate their vehicles in a manner that best protects everyone by not causing an accident. But if we drive recklessly, even if it’s just a few seconds, or choose to drive home from a bar after having too much to drink and we harm another people with our car by getting into an accident, we have violated our clear legal responsibility (or duty) to not hurt or kill others through our actions. So if we have harmed others, the burden of proof is upon the victims to gather all of the relevant evidence to show that we owed that legal duty to them, and then violated that duty. If they’re successful, the victims win their personal injury case and the court awards them monetary damages. Depending on the circumstances of the accident, the person or entity who caused it owes victims a different legal duty than another person or entity would. An example of this difference is best illustrated by imagining the standard of care owed to you by your neighbor, compared to that of a doctor. Although your neighbor is your friend and you might trust him with the keys to your house and the welfare of your children, a doctor holds your very life in his or her hands. So, according to Texas law, the standard of care is much higher for that physician than it would for your friend and longtime neighbor.
Degree, or the level of legal duty, can also be different depending on the circumstances surrounding an accident. Let’s say that the same doctor walks up to you on the street and inexplicably slices your arm with a pocket knife. In this instance, he has probably violated a lower legal duty than he would have if you were on the operating table, and with his scalpel, he inadvertently performs malpractice by botching a surgical procedure. Legal duty accounts for circumstance, environment, and context at the time of the injury.
Most personal injuries arise from a clear violation of someone’s legal duty, although some are more obscure. Imagine, for example, if one company’s employee drops a hammer on your head. The legal duty of the employer to you, the injured employee, has been violated because, by legal definition, that employer allowed that employee on the job site to cause the injury to you. But on the other hand, if the same exact situation occurred and the hammer fell on a contract laborer or subcontractor, the company that employs the offending worker would not owe anything to the victim because, in most cases, there is a much lower legal duty owed by an employer to individuals hired as contractors. This is one of many possible exceptions to one’s legal duty.
But as a general rule, the most proper and efficient way to decide if your case is a valid cause of action against the perpetrator or not is to speak with a Texas personal injury attorney at our Texas Law Office. We can clearly explain the various legal duties that people and other entities owe one another, and help you determine if a specific injury event warrants your filing a personal injury lawsuit.
If you’ve suffered a personal injury in or around Texas, personal injury legal advice you find online is never enough to protect your rights. Even the smallest variation in the conditions of your accident can have crucial implications on the way your case is handled and how it’s resolved. For a free assessment of your legal situation, call our Law Firm at 1(800) 862-1260 (toll-free). We’re available around the clock seven days a week to help you.
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The Three Ingredients That Makeup a Successful Personal Injury Case
If any personal injury case is to be successful, it must have three distinct elements present. The first thing a plaintiff must prove is liability, either through defendant negligence or some other violation of legal duty. Second is the amount of damages that the victim, or deceased victim’s estate in the event of wrongful death, has suffered. And finally, you must have a solvent defendant who can be made to pay the damages that are owed to you. Below is a further explanation of these elements.
1) Liability: Once a defendant has violated a clear legal responsibility to another person, it is grounds for some liability damages. These damages can be either a percentage shared by multiple defendants or complete liability if one person or entity is the sole proximate cause (or completely responsible). In personal injury cases, only defendants are responsible for any damages incurred by the plaintiff: again, in proportion to their involvement in the harm that the plaintiff has suffered. The primary avenue in which a defendant breaches their legal duty towards a plaintiff is through negligence, which is primarily viewed by the law as either irresponsible or brash actions, that has caused an accident. And negligence can take on various degrees of behavior.
It’s easiest to think of negligence as the vehicle through which the violation of the legal duty occurred. The most common form of negligence is carelessness or inattentiveness: the defendant was simply not paying attention and caused an accident. When “gross negligence” causes the defendant’s breach of his or her legal duty, then it is not merely carelessness. It becomes an overt act. In legal terms is called “willful intent.”
A defendant who causes injury through gross negligence has behaved in a way in which he or she clearly was aware that their actions could likely result in some sort of harm, such as drinking and driving or refusing to provide a safe workplace or speeding through a school zone at 3:30 in the afternoon. Whatever the civil (or criminal) offense, gross negligence boils down to the fact that he or she just didn’t care.
Intentional or deliberate torts (a tort is a legal term for the violation of a civil duty) are the most reprehensible violations of legal duty. Some of these 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 violations of others’ legal rights. But, it doesn’t remove the responsibility of the victim/plaintiff to prove negligence, the degree of that negligence, or some other form of disregard of the defendant’s legal duty as being the cause of the plaintiff’s injuries to which the defendant is liable.
2) Damages: This is another word for any monetary loss that the plaintiff has a right to legally claim because of the defendant’s negligence. Damages do not include specific physical injuries to the victim because those in-and-of-themselves have no value. The medical bills to treat those injuries are.
In the instance where the victim fractured his collar bone, the collar bone is the injury. The legal damages would be all monetary costs and, or, losses that produced by the injury. Damages will either fall into the category of General damages or Special damages.
General damages are of those found to be non-economic. This means they are much more subjective and should be computed (and presented to a jury) very carefully if you want to have the best chances of winning your 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 or in the event where husband and wife work together, both).
Emotional distress.
Physical disability (either short-term, long-term, or permanent).
Because of the subjectivity of these damages, a clear and effective explanation of your general damage suffering, and the degree of that suffering, is a vital consideration when filing (and winning) a personal injury claim. General damages and the amount awarded for them differ with every case, even if the injuries appear to be similar.
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. 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 was fully alert enough to experience the full and terrible agony 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 determine the proper amount to demand, based on the details of your suffering and other background elements surrounding your damages.
Special damages pertain to the actual economic cost of your accident. This makes them much more objective because they are primarily market-driven. So the amounts are easier to assess, although this is not always the case.
Some examples of general damages may include.
Wages or earning capacity lost.
Court costs.
Medical costs, incurred in the past and future: including any prescribed physical or psychological therapy and any form of long-term care.
Physical damage to the victim’s property as a result of the mishap.
In an accident where the injuries are enormously disastrous to the victim’s state of well-being, your attorney might not be capable of precisely determining, for example, how much longer their client will live. This can make a precise determination of lost wage damages extremely difficult to calculate. This is because often the victim’s previous salary earnings, relative to what they might have expected to earn through future promotions or leaving that job to take a better one are indistinct. So 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 future possible changes, and others, would inevitably lead to a higher pay scale for the disabled victim in the ensuing years.
Winning fair and reflective total damage compensation from the defendant is predicated more on special damage awards rather than general damages. This is why it is very crucial to the plaintiff’s physical and fiscal recovery that all general damages be handled with care. Sometimes the plaintiff will already have paid portions of what turns out to be general damages prior to filing suit. Some of these might involve 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 then be quickly paid to the plaintiff’s insurance carrier, or whoever initially paid those medical bills.
All of the damages that the plaintiff claims to have suffered must be clearly codified and presented as evidence at trial. The Bexar County personal injury lawyers at our Texas Law Office spend a generous portion of their time on each case computing damages and creating a demand packet that is presented to the defendant(s). It is an itemized accounting of all the plaintiff’s damages, which is generally submitted to the defendant’s insurance company and is accompanied by a legal request for a specified amount of financial compensation.
3) Solvent Defendant: Though the first two items are important, this one is probably the most critical. You must have a defendant that is financially solvent. This means they have the financial means to reimburse you. Consider the junk man who trolls your streets on big trash pickup day and tosses all your recyclable metal and such into his truck to take to the recycle center to earn a few dollars. He hits your car (with you in it) and in addition to totaling it, you have a legitimate medical injury and other damages totaling $75,000. The junk man also drives without insurance. Realistically, there is no way you can expect any real compensation since the poor-as-a-church mouse junk man who caused the accident has nothing to pay you with.
It is unfortunate that some cases involving defendants without monetary resources will leave victims hurt and without a way to be compensated for the damages they’ve suffered. But sometimes, that happens. Let the rich people who can afford to hire a lawyer sue the “junkmen” of the world, regardless of the outcome. They have the money to act on their principles.
Identifying solvent defendants is one of the more valuable ways in which an experienced Texas personal injury lawyer can be of great value to you in getting the justice you deserve. Many defendants can 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 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 negligence claim.
Regardless of what these defendants try to do to prevent you from learning the truth of their financial resources, they can’t fool our experienced legal team’s asset checks. We won’t be denied in finding, and identifying for the court, all possible monies they may be hiding from you. A stringent asset check is the most effective way to discover the money to compensate you that some defendants try to hide. With few exceptions, once we have lined-up all liable parties to your personal injury, the next step is a meticulous asset check. Luckily for our clients, rare is the time when these investigations don’t find money that the defendant hoped we never would.
If you’ve suffered a personal injury in or around Texas, personal injury legal advice you find online is never enough to protect your rights. Even the smallest variation in the conditions of your accident can have crucial implications on the way your case is handled and how it’s resolved. For a free assessment of your legal situation, call our Law Firm at 1(800) 862-1260 (toll-free). We’re available around the clock seven days a week to help you.
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