If you believe you have a claim and have questions about your rights, contact Kershaw, Cook & Talley. Our experienced lawyers can protect your legal rights while you focus on your health and recovery. We handle all types of cases and serve clients throughout the Sacramento area. Get started today with a free initial consultation.
What should I expect in a personal injury case?
In today’s world of personal injury law, individuals are quick to pass up their opportunity to hold another party accountable for negligence-related acts. This is most often because they don’t know what to expect, so fear and uncertainty take control of decision making.
A personal injury lawsuit can be a daunting thing if not completely and accurately understood. However, with knowledge of the process, those injured can make important decisions regarding how to proceed after suffering injuries because of someone else’s actions.
The general timeline for a personal injury case is as follows:
- Filing a claim: When you sustain an injury, you file a claim based on the cause of the damages. For instance, in a car accident caused by negligence, you file a claim with the responsible party’s insurance company.
- The insurance company’s decision: Once a claim has been filed, the insurance company has the option to accept all liability and pay out compensation, outright deny liability, or attempt to pay less than adequate compensation.
- Filing a lawsuit: If the insurance company tries to deny a claim, you may have the right to file a lawsuit against them in an effort to secure compensation.
- Motion to dismiss: Once the notice of a lawsuit has been filed and reported to the insurance company, they can attempt to file a motion to dismiss the case with the judge. If their motion is granted, you may try to appeal the decision. If the judge denies the motion, the process will proceed as normal.
- Discovery phase: In a personal injury trial, the discovery phase serves as an opportunity for both parties to introduce evidence they may have regarding the incident that caused the injury. This can include all documentation, medical records, police reports, and key witnesses who can attest to liability or severity of the injuries sustained.
- Settlement offer: If the insurance company feels as though you have a strong enough case to prove negligence and liability should the matter go to trial, they may offer a settlement. If adequate, you may decide to accept the settlement in lieu of the lawsuit. If the settlement is not enough to cover expenses, you may counter or deny the offer, in which case, trial may be necessary.
- Trial: Not many cases make it to trial anymore due to the expenses and public spotlight associated with such events, but if it does, there is a platform for victims to have their voices heard. A decision is made by a jury—a group of unbiased peers who decide guilt and if the plaintiff should be awarded damages.
You shouldn’t fear the legal system and you don’t have to go through it alone. Our personal injury lawyers at Kershaw, Cook & Talley have the legal acumen you can count on when facing difficult matters resulting from someone else’s negligence.
What do I need to prove in a personal injury case?
Personal injury cases refer to those cases in which a person is harmed either physically, mentally, or emotionally. Usually, personal injury actions seek to recover for injuries caused by another’s negligence, but some types of personal injury cases, like defamation, don’t involve a defendant’s negligence.
Common types of personal injury cases include car accidents, motorcycle accidents, accidents resulting from dangerous conditions on a property, injuries caused by ultra-hazardous activities like use of explosives, dog bites, or harm caused by defective or recalled products. In order to file a traditional personal injury case against a defendant for negligence, the plaintiff must meet the four following criteria:
- Duty – In order to successfully bring a case against a defendant, the plaintiff must show that the law imposed a “duty” on the defendant to act a certain way. This “duty” is an obligation to act as a “reasonable person” would act, and courts have illustrated how a “reasonable person” would act in a variety of specific circumstances. For example, a manufacturer of a product has a “duty” not to release products that can foreseeably cause harm to consumers.
- Breach – This requirement simply means that a defendant must have failed to act as a reasonable person would have acted in his or her circumstances, and thereby breached his or her duty.
- Harm – This requirement merely means that the plaintiff must have suffered some kind of real harm, financial, physical, or otherwise.
- Causation – This requirement means that a defendant’s breach of duty must have caused the plaintiffs harm. There are two types of causation that typically must be shown: 1) actual causation, meaning that, but for the defendant’s breach, plaintiff’s harm would not have occurred, and 2) proximate causation, meaning that the link between the defendant’s breach and the plaintiff’s harm must not be ‘stretched too thin’ by intervening events or other factors.
What types of damages can I recover?
If you have been injured due to someone else’s negligence, there are two types of damages you may be able to recover: compensatory and punitive.
- Compensatory damages are the most common type of damages and their purpose is to make the injured party “like whole again.” Compensatory damages can include: medical expenses, lost wages, pain and suffering, physical disfigurement, and other economic or non-economic losses sustained because of the injury.
- Punitive damages, on the other hand, are less common. Their purpose is to punish the negligent party and deter them from engaging in similar conduct in the future. Since punitive damages are not intended to compensate for any loss, they are awarded sparingly—only when the circumstances call for it. Generally, a court will consider whether the wrongdoer acted with malice, fraud, or a willful disregard for human life. However, it can be relatively difficult to prove malice in negligence cases. Similarly, courts are more willing to award punitive damages if the tort was committed intentionally (like battery).
Punitive damages are not always awarded to the injured party, since they aren’t intended to compensate the victim for any actual harm. Some jurisdictions require punitive damages to be paid directly to the court or to a charitable victims’ fund—although this too isn’t all that common.
What steps should I take after an accident?
Personal injury lawsuits provide a way for victims of preventable accidents to recover compensation for damages like medical bills, lost wages, property damage, and more. In order to be successful, the plaintiff (the injured person bringing the lawsuit) needs to prove that the actions or inaction of the defendant (the person accused of negligence) were to blame for their accident.
It is important to contact a Sacramento personal injury attorney you can trust as soon as possible after an accident. Before you call, make sure that you have gathered as much evidence as possible so that your attorney can begin building your case.
Here’s what you should do after an accident in order to support your personal injury claim:
- Take notes. The best way to remember the important details after suffering an injury is to write down anything you can remember about what occurred, when it occurred, and how it occurred.
- Write down the information of any witnesses. It is important to gather contact information from witnesses who saw you get hurt or anyone involved in the incident that led to your injury.
- Take photos or videos. Taking photos or videos of the scene can be invaluable - if you can do so safely, take pictures of your surroundings, any property damage, and any visible injuries.
- Seek medical attention. Be sure to visit your doctor promptly after an accident, even if you don’t immediately feel hurt. Any significant delay in treatment can not only hinder your physical recovery, but your legal recovery as well, as it could suggest that you aren't really as injured as you claim.
- Follow your doctors’ advice. If you don’t follow your doctor’s instructions, this may be misconstrued by an insurance company as negligence on your part, which may jeopardize your claim.
- Contact an attorney. It’s important to contact an experienced attorney immediately. An attorney can evaluate your case, protect your rights, help gather facts and evidence, take away the stress of dealing with insurance companies, and present the claim in an organized and persuasive manner to maximize your recovery. If necessary, your attorney can file a lawsuit on your behalf and litigate the case all the way through trial if that’s what justice requires.
How many personal injury cases go to trial?
Personal injury cases are legal disputes resolved through civil litigation. Unlike criminal cases, where the State seeks criminal sanctions against an individual, civil litigation consists of parties seeking some type of monetary damage or other specific result. Civil cases deal with a wide variety of laws including contract, tort, and property law. They are either filed as limited cases, where a plaintiff seeks damages of $25,000 or less, or unlimited cases where a plaintiff seeks damages of over $25,000.
The majority of civil cases filed are personal injury tort cases where a plaintiff is seeking monetary damages for an injury sustained by another person’s negligence. These lawsuits are brought for various reasons, such as motor vehicle accidents, medical malpractice, or defective products.
Many civil cases can be resolved without going to trial through an Alternative Dispute Resolution (ADR) process, such as arbitration or mediation. Arbitration and mediation bring together the persons involved in the lawsuit in an informal setting. The goal is to reach a fair resolution without incurring the time and expense of trial.
While there is no exact national data, the U.S. Department of Justice reports about 4% of all personal injury cases filed nationally actually go to trial. The majority of personal injury cases are resolved in either settlements or dismissals before trial is even assigned.
Can I still file a claim if I was partially at fault?
In states that recognize the “pure comparative fault” rule, injured parties may recover damages even if they were 99% at fault. Under this rule, the plaintiff's recoverable damages are proportionally reduced by the percentage they are at fault. So, if you were 70% at fault in a crash and suffered $100,000 in damages, you could still recover $30,000 from the other driver. Approximately 1/3 of states have adopted pure comparative fault—including California.