Do I Have a Personal Injury Case?
How to Tell if Your Case is Strong
How to Tell if Your Case is Strong
This is an article by Modoline Altenor, your personal injury attorney serving all of greater Orlando.
If you have been injured or have lost a family member due to the action or inaction of another, you may be wondering whether you have a strong basis for filing a personal injury claim with a lawyer.
How do you know, though? It’s not something you’re taught in high school, after all.
As an Orlando personal injury lawyer, I have seen (and tried) many cases, and they mostly boil down to a few basic things.
The essential requirements can be succinctly put:
Now: that’s about as simplistic as we can make it, but it doesn’t answer the questions you’ve come here seeking. How do you know if your case fits the above criteria?
Well, first you might ask yourself …
How serious are my injuries?
Severity is always a major factor in a personal injury claim. If you think that someone harmed you or negligently placed you in a position where harm was inevitable, it’s only sensible to want them to be held responsible.
If your injuries are relatively minor – sprains, bruises – or if you weren’t injured at all, it’s probably not worth pursuing your case. This is especially true if the person or entity you wish to sue intends to make counterclaims.
Are there questions about how the incident occurred?
Are there doubts or disagreements about who was at fault?
Could you be said to have played any role (even a small one) in contributing to your own injuries?
All of these things could weaken your case, and potentially expose you to countersuits.
Now, that doesn’t mean that you should scrap the whole idea. You should ask a personal injury lawyer. Some disagreement is expected in any personal injury case, and back-and-forth between lawyers is common. It’s just important to remember that if you accuse someone of wrongdoing, you will likely be questioned, deposed, examined by doctors other than your own, and more.
Essentially, the defendant’s lawyer will do everything in their power to make your claim look weak and ridiculous. It’s important to know that you’ve got a strong case before opening yourself up to legal risk.
Were your personal injury losses paid by insurance or some other means?
Insurance comes into play in most automotive and household personal injury accidents. When that is a factor, it can affect your personal injury case in myriad ways. The same is true of your health insurance.
As a for instance, let’s assume you were in a car crash. You had to see a doctor, or perhaps go to an Emergency Room.
You underwent X-Rays, MRIs, and other forms of care. Perhaps you even had physical therapy to restore motion or strength after an injury.
If you have health insurance, much of that will have been paid for. In fact, it’s very likely that your automotive policy (or that of the other driver) has provisions to cover medical bills.
Your auto insurance would also very likely cover vehicle damage – or theirs would.
That raises the question of whether or not you’ve truly experienced what personal injury attorneys call “damages.” Do you know how to answer questions along those lines?
We do. We know that even if your policy covered the damages, you likely had to pay a deductible. We know that your premiums will likely go up, and that you will incur some out of pocket expenses.
We also know that, if you were seriously injured, your insurance policy won’t likely cover it all. Insurance has no provision for pain and suffering. Insurance doesn’t reflect a reduction in your quality of life, but those damages would certainly be a part of any suit we choose to file on your behalf.
In the state of Florida, where the Altenor law firm is based, we know every possible legal avenue by which we can seek compensation for you – and we will leave no stone unturned.
Is your case a strong one?
That’s always the million-dollar question – sometimes literally.
To win your personal injury lawsuit, we have to be able to argue compellingly that the other party (meaning the other driver, property owner, and so on) is legally responsible for the incident, and thus liable for your injuries.
If liability isn’t clearly established, personal injury cases can become very contentious.
So let’s talk a bit about liability, shall we?
In legal terms, it is defined as responsible or answerable in law. It’s what we call a “threshold issue” because once liability is firmly established, the at-fault party is responsible for damages, and the rest of your personal injury case is about determining how much.
Who decides liability?
Circumstances vary widely in personal injury suits, but as your attorney, one of our primary functions is investigating your case and making our own liability determination. We might make a recommendation to the involved insurance companies, assuming the at-fault party is insured.
Insurance companies often conduct their own investigations, as well. If an agreement is not reached between all involved parties, the personal injury lawsuit will proceed and a civil court jury will make the final legal determination of liability.
Here are Ways a Personal Injury Attorney Can Prove Fault
Proving fault is, as we pointed out, critical to winning compensation. The majority of personal injury claims involve negligence.
Without diving too deep into legalese, negligence is behavior that A) falls below the standards of “reasonable” people, and B) causes harm to another.
Proving fault through negligence requires proving the following:
Duty. The defendant must have a legal duty owed to the plaintiff. (This isn’t hard to prove – every automobile driver, for instance, owes a legal duty to all other motorists)
Breach. The defendant must be proven to have breached that duty. As a for instance, driving while drunk, or failing to mark a wet or icy surface.
Causation. The defendant must have caused injury to the plaintiff. If duty and breach are proven, causation is usually fairly obvious.
Damages. The plaintiff must have incurred damages, usually financial, as a result of the incident. Medical bills, lost income, lost work or opportunities, property damage, disability, and so on are examples.
Can you prove fault without negligence?
Most injury claims involve negligence – but not all. You, as the plaintiff, can also attempt to prove fault by:
Establishing intentional conduct, which signifies conduct undertaken voluntarily with a desired purpose. For example, punching someone in the face is certainly intentional, and qualifies as battery.
Negligence per se is a different way of establishing negligence, and involves violations of a legal statute. Reckless driving is a great example – it’s a violation of driving laws, and is thus always enough to establish fault.
Strict liability usually involves products or services, and does not require the defendant to be found at fault in order to hold them liable for damages.
If you suffer a “foreseeable injury” while involved in a situation with a defendant, they may be held liable without fault. We’ve encountered strict liability in cases involving the possession of wild animals, or with dangerous activities such as skydiving or rock climbing.
There are things a defense lawyer in a personal injury case can do to reduce or eliminate liability. When that happens, it similarly reduces your compensation.
Common legal defenses include:
There are several other defenses lawyers can mount. For more on this, contact the Orlando personal injury lawyers at Altenor Law Firm. We’re available anytime to discuss the particulars of your case.