What is the attractive nuisance doctrine?
The Attractive Nuisance Doctrine is a legal theory that holds that when an activity or condition that exists upon a person's property tends to entice children onto the property, the trespasser defense ceases to protect the landowner from liability for injury to those children if the landowner was aware the condition was likely to attract children. Examples of attractive nuisances are pools, lakes, and sand pits.
What is a worker’s compensation third-party claim?
When an employee is injured on the job and receives worker's compensation benefits, he is barred from bringing a claim against his employer. If his injuries were caused by the negligence of someone other than his employer, he has the right to pursue a claim for damages against that "third- party." This is known as a worker's compensation third-party claim.
I had a family member who died due to the negligence of another. Can I bring a lawsuit against the negligent party?
In most states, a plaintiff may file a wrongful death action on behalf of a deceased family member. However, the specific requirements for such lawsuits vary from state to state. If you're considering bringing such action in your jurisdiction, a vital threshold issue will be whether you are deemed an authorized party who can bring suit. In some states, the deceased's surviving spouse and children are the only authorized parties. Other states permit additional family members to assert the claim, such as the deceased's parents or grandparents.
Will I be able to recover punitive damages for injuries?
Probably not. It is unusual for punitive damages to be awarded on top of compensatory damages in a personal injury case. This is because the purpose of punitive damages is to punish the defendant for some outrageous conduct. This is very different from the purpose of damages awarded in a personal injury case, which is to make the plaintiff whole or "compensate" him for the pain and suffering he experienced resulting from his injuries.
Will I have to pay a fee for my lawyer to handle my case?
Most personal injury lawyers do not charge an upfront retainer fee. The majority of personal injury cases are handled on a contingency fee basis. This means that the lawyer receives a fixed percentage (usually 33% or one-third) of any monetary damages awarded to the client. If the lawsuit is unsuccessful (i.e., no damages are awarded), the client does not owe the lawyer any legal fee.
As to the various costs and expenses associated with handling the case (i.e., court filing fees, expenses associated with scheduling and taking depositions, fees for obtaining medical records and physician reports, fees for experts and other witnesses, postage, etc.), many personal injury lawyers will advance such costs on your behalf and only require reimbursement if they win your case.
What are the elements of negligence case?
To prove a negligence case, the necessary elements are:
- There was a duty to act on the part of one toward another
- The defendant breached the duty
- There was an injury or "damages" that resulted, and
- The breach of duty proximately caused the damages. Proximate cause means that an event was a "cause in fact" of the damages and that the damages were a foreseeable result of the event in question.
What is the assumption of the risk?
Assumption of the risk is a defense to a negligence cause of action allowed in some jurisdictions that bars or reduces a plaintiff's recovery when the defendant proves that the plaintiff was aware of inherent risk in a particular course of conduct but voluntarily continued with that course of conduct despite the risk.
What is comparative negligence?
Comparative negligence is a defense to a negligence cause of action allowed in some jurisdictions that permits a jury to weigh the negligence of the plaintiff and the defendant by assigning percentages to each party's negligence. The damage award is then reduced by the corresponding percentage or, in some cases where the plaintiff's percentage is higher than the defendant's, eliminated.
What is contributory negligence?
Contributory negligence is a defense to a negligence cause of action allowed in some jurisdictions that bars a plaintiff from making any recovery if his actions contributed to causing the injury.
What is a letter of protection?
A "Letter of Protection" is a tool by which a personal injury attorney enables his client to obtain medical care without paying upfront for the services rendered. The attorney sends a letter to the medical provider that promises to "protect" or pay the medical provider's bills out of any money recovered in the case by way of settlement or judgment. Once the money is recovered, the attorney pays the medical provider directly. He may attempt to negotiate a discount before making a payment. If no recovery is made, the client remains fully responsible for the outstanding medical bill.
Do I have to be present for court appearances?
Usually not. Unlike criminal cases, where a client's presence in court is usually required, personal injury cases usually don't require personal appearances from the parties. The majority of the scheduled court appearances in your case will be discovery-related status conferences for which only the attorneys for the respective parties must be present.
If counsel represents you, you are generally not required to come to court personally for such conferences. Remember, however, that your presence may be necessary for other matters, such as depositions, medical examinations, pre-trial hearings, or trials.
How long will my injury case take?
Every situation is different, generally speaking. However, cases typically take anywhere from six months to two years before they are resolved. The speed with which cases move through the court system is different in every part of the country. Some jurisdictions are known for relatively fast-moving dockets, while others are bogged down with overloaded judges and case calendars.
What questions will I be asked during my deposition?
A plaintiff's deposition typically focuses on four areas. These are:
- The plaintiff's background
- The circumstances of the incident for which the plaintiff is now suing
- The plaintiff's alleged injuries and medical treatment resulted from the accident
- The claimed impact of such injuries on the plaintiff's daily life, habits, and routines
What is a deposition?
A deposition is a way of obtaining sworn testimony from a party or witness in a legal proceeding.
Attorneys for each party, the witness, and the court reporter will all be present. Parties to the case also have the right to sit in during the deposition of any other witness and listen. The court reporter will "swear in" the witness at the outset. Then, the attorney who "noticed" the deposition will start by asking the witness questions. When she is done, the attorneys for the other parties will each have a turn.
The court reporter will record everything said and type it into a question-and-answer booklet format called a "deposition transcript." The deposition transcript can then be shown or read to the court during various stages of the legal proceeding and read to the jury during the trial.
Can my lawyer settle my case without my consent?
No. As a client, deciding whether to settle is yours and yours alone. However, your lawyer is forbidden from accepting a settlement offer without your prior approval. Moreover, your lawyer has a professional and ethical obligation to notify you of all settlement offers made in the case.
Is it possible to sue a county or city?
Yes, assuming all requirements have been met in certain circumstances. Mostly, local governments can be named as defendants in civil actions just like private individuals. However, do not assume that this means the procedure for bringing the lawsuit is the same. On the contrary, virtually every jurisdiction has established additional procedural requirements that are prerequisites to filing suit against the government. An example is the requirement of notice.
"Notice" refers to disclosing in advance that you plan to assert a claim against a governmental entity. In other words, you don't even have permission to start a lawsuit against the government unless and until the government decides that you've provided sufficient advanced warning of your litigation plans.
In most jurisdictions, the notice requirements include filing a Notice of Claim. This document outlines the claim or claims you wish to bring against the government. It includes detailed information as to the facts of the incident and what parties were involved. In most jurisdictions, the Notice of Claim must be separately addressed to each person or entity alleged to have caused your injuries.
Copies of the Notice must be sent via certified mail to each governmental entity and employee involved. The Notice of Claim is not filed with the court but must be mailed (often by certified mail) to each government employee or entity. Some states even require that the notice be mailed to some governmental department designated as the recipient of claims.
Should I carry uninsured/under-insured motorist insurance coverage
It is essential to carry uninsured/underinsured motorist coverage in a liability insurance state. Drivers do not always follow the law by carrying insurance. Additionally, the minimum limits are often insufficient to cover a severe accident.
Uninsured motorist coverage protects a driver when the other driver causes the accident but has no insurance. Under-insured motorist coverage protects a driver when the negligent driver has insurance, but it is not enough to pay for all the damages caused by the collision.
What is the difference between personal injury protection and medical payments insurance?
Personal injury protection or "PIP" coverage is insurance that covers the policyholder and occupants of the policyholder's vehicle when they are injured in an accident. It is intended to help pay for initial medical expenses and lost time from work up to the maximum limits of coverage of the policy.
Medical payments coverage or "med pay" is similar to PIP, but it only covers medical expenses up to the specified maximum limit of coverage, not lost wages. The limits of both are typically low.
A critical difference in many jurisdictions is that medical payment coverage has a right of subrogation, whereas personal injury protection does not. This means that if a recovery is made from the negligent party who caused the accident, the insurance company paying benefits has a right to be reimbursed out of the recovery.
How do you determine the value of my claim?
The value of your claim depends on several factors.
First, is the evidence clear regarding the issue of liability? Was it the defendant's fault entirely, or did the plaintiff contribute to the happening of the accident through his conduct?
Secondly, how serious are the injuries? Was the plaintiff diagnosed with a condition that can be verified from an objective medical standpoint? Objective injury cases tend to be more valuable than cases where the plaintiff has only subjective complaints. With personal injuries, such as soft tissue injuries, medical experts may disagree significantly as to the "severity" of the condition because the level of pain and suffering may vary considering from person to person.
A third factor is the nature and extent of medical treatment for the injuries in question. For instance:
- Has the claimant been put on a regimen of prescription medication to address pain or inflammation from the injury (and if so, does she experience unpleasant side effects due to the medication)?
- Was the pain so severe that the claimant elected to undergo epidural steroid injections on one or more occasions?
- Did the claimant undergo back surgery, or is such surgery scheduled for the future?
- Is the procedure in question a mere discectomy or laminectomy (as opposed to a vertebrae fusion, which involves permanently placing hardware inside the body)?
- Finally, has the claimant been forced to travel to weekly physical therapy sessions for the past two years following the accident?
Another factor is the plaintiff's potential strength as a witness at trial. For example, does the claimant have a history of filing personal injury lawsuits for similar claims? How did they perform as a witness during depositions? Would a jury perceive them as credible if the case went to trial?
Finally, another factor is the dollar amount of recent verdicts and settlements for similar injury cases in the jurisdiction. Before jumping into the negotiation process with an adversary, attorneys and insurance companies will often consult databases containing information on past settlements and verdicts.
What should I bring when meeting with my lawyer?
Although every case is unique, the following items will almost always be helpful to your attorney: Copies of documents that may be relevant to your case that include items such as:
- Proofs of payment
- Medical records
- Tax documents
- Email correspondence
- Copies of your photo ID.
Your attorney will likely require copies of the ID for his file. The ID should bear the current, full version of your legal name because it is the name that will be used on all legal documents prepared in connection with your case.
Check to ensure that your ID is valid and not expired and that a short written statement summarizes your accident. Include information such as dates and times, street and intersection names, and contact information for any witnesses.
A medical chronology lays out your treatment from various providers. A detailed medical chronology can be extremely helpful to your attorney, especially if your case involves extensive treatment from multiple medical providers over a long period—documents supporting a claim for lost wages (if applicable).
Consider reviewing your available records before meeting with your attorney to estimate the total time missed from work due to your injuries. Do not worry if this number is not exact.
Try to provide as many of the above items as possible during your initial meeting with your lawyer. Then, if you have time, consider organizing everything together into a folder or file. This will save your lawyer time and help expedite the information-gathering process.
Will the information I share with you remain private?
Yes. Lawyers must keep their information private under rules governing confidentiality and privilege. A duty of confidentiality arises on the part of a lawyer whenever you reveal intimate details about yourself or your circumstances to obtain legal advice. The duty prevents the lawyer from sharing your information with anyone else. Moreover, it obligates the lawyer to keep nearly everything relating to your case - even information not obtained from you directly.
A separate but related concept is a privilege. The attorney-client privilege preserves the secrecy of communications between lawyers and clients. As with the duty of confidentiality, the purpose behind the privilege is to encourage honesty. Notably, the privilege stays in effect after the end of the attorney-client relationship. It even survives death.
What is arbitration?
Arbitration is an alternative dispute resolution proceeding in which the parties to a dispute resolve their differences by going before an "arbitrator" or panel of "arbitrators," presenting their case, and letting the arbitrator decide the result for them. It is typically less formal and more cost-effective than a lawsuit.
The parameters are typically agreed upon in advance or set forth by a contract that controls the parties' relationship, such as an employment agreement or purchase contract. The arbitration process may or may not allow some form of limited discovery, including issuing subpoenas for records, depositions, and live testimony. The arbitration "award" is typically binding but may be subject to an appeal.
What is mediation?
Mediation is a non-binding, informal proceeding that employs a neutral third party or "mediator" to assist parties in a legal dispute and their attorneys in attempting to negotiate a settlement.
The mediator's role is to keep the parties communicating and exploring settlement options to avoid going to trial. Mediation may be a voluntary process, or it may be court-ordered. The mediator has no authority to make any party settle the case. All parties must agree upon any settlement.
What are the different stages of a personal injury case?
Personal injury cases involve four primary stages: Pleadings, Discovery, Pre-trial Motions, & Trial.
The pleadings stage begins with the filing and service of the summons and complaint. The warrant provides all named parties with notice of the lawsuit. It tells the parties where and when the case will be heard. It also sets out the time limit within which the defendant must respond to the allegations made by the plaintiff.
The complaint provides an outline of the plaintiff's case against the defendant. It outlines:
- Who the plaintiff is suing
- Why he is suing them
- And what he seeks in terms of damages.
Once the summons and complaint are filed, copies must be delivered to all parties to the lawsuit. This is known as the service of process. Once the defendant is served, he typically responds by filing and serving a responsive document called an answer. The answer addresses every allegation made by the plaintiff in the complaint. It may also set forth various defenses to the claims. These defenses, often referred to as "affirmative defenses," are legal reasons why the defendant should not be held liable for the plaintiff's injuries.
Discovery refers to the pre-trial process where the plaintiff and defendant exchange information they plan to use to support their claims and defenses at trial.
Discovery in personal injury cases can take one of four forms:
- Requests for admission
- Requests for document production
Interrogatories are written questions intended to extract information from a party about the case. The party's answers to the interrogatories are provided in a written response given under oath.
Requests for admission are requests for a party to acknowledge or deny specific facts about the case. They carry penalties for not answering, falsely answering, or even answering late. Requests for admission are generally only used to establish basic facts. Once a party responds, it eliminates the need for further discovery on that issue.
Requests for production are demands for copies of documents and other items that the plaintiff intends to rely on to support his claims. This may include:
- Accident reports
- Inventory reports
- Business records
- Or anything else relevant to the case
For example, requests for production are used extensively in personal injury and medical malpractice cases to obtain copies of the plaintiff's medical records.
Finally, depositions are in-person question-and-answer sessions involving the attorney for one party and a witness for the other party. A court reporter usually records the transcript from the session at the deposition table.
Depending on the case's complexity, depositions may be very short or take several days to complete. Regardless of their particular format, depositions are usually the most critical part of the discovery process because of how profoundly they can impact the relative strength of one's case.
The final phase of the case is trial. In a trial, a jury or judge examines the evidence to decide whether the defendant should be held legally responsible for the injuries suffered by the plaintiff. The trial allows the plaintiff to present their case to obtain a judgment against the defendant.
The trial also allows the defendant to refute the plaintiff's case. A complete personal injury trial consists of several phases, including jury selection, opening statements, direct and cross-examining witnesses, closing arguments, jury instructions, jury deliberations, and the verdict. The majority of personal injury cases are settled long before trial.
The insurance company told me I didn’t need to hire a lawyer, is this true?
It depends. Once an accident has occurred, the interests of an injured plaintiff can be very different from those of the offending party's insurance company. Speak to a personal injury lawyer to assess your case and rights accurately.
Why do I need to go to the doctor after a car accident?
From a litigation perspective, failing to seek medical attention immediately following your accident may harm a future personal injury case.
- The initial delay may raise questions of credibility concerning the seriousness of your injuries.
- The delay may raise questions about the actual cause of your injuries. For example, if three months elapsed from the time of the accident until the time you first sought treatment, a jury might find that your injuries could have resulted from a different accident occurring somewhere during those three months.
Should I go to the doctor after a car accident?
Yes. If you believe you've been injured following an automobile accident, seek medical attention immediately. Always err on caution unless you're sure you're okay.
Why is it so essential to get the police involved?
The responding officer will use the information he gathers to complete a police accident report. The police report will contain valuable information such as:
- The date, time, and exact location of the accident
- Identities of the parties involved
- Detailed information regarding all vehicles involved in the collision (including license plate, year, make, model, color, sedan/SUV/coupe, etc., and information as to whether parts of any vehicle were malfunctioning or defective before the accident)
- A summary of any injuries sustained
- Description of property damage
- Weather and road conditions at the time of the incident
- Witness information
Simply put, the mere existence of an official police report adds validity and facts to the case.