Personal Injury Law: A Crash Course
by John C. Nipp
Posted on June 14, 2000

Personal injury law aims to compensate people harmed by others negligent or malicious acts, from the highway worker knocked into a vat of boiling oil to the golfer beaned by an errant Top-Flite to the woman crushed by a collapsed catwalk. But just because you're injured doesn't mean you'll be compensated; proving these cases can be a challenge. Read on for the realities of making a personal injury claim.

The Basics
In most states, the first step in determining whether you may be entitled to money for your injuries is to ask, "Whose fault was it?" In an automobile wreck, one of the most common types of personal injury cases, the person who caused the crash is considered "liable" and must compensate the innocent victims for any injuries the accident caused. A driver who runs a stop sign and hits a delivery truck is liable for the truck driver's injuries. Determining fault is often not that easy. The classic example is the intersection case. The police officer arrives and both drivers insist, "I had the green light!" Or one driver declares, "I did hit her, but that truck knocked my car into hers! She should blame him!" Assuming you can demonstrate that the other driver was at fault, the next step is to ask yourself, "Did I do anything wrong?" The answer to this important question will bring you different results in different states. In some states, if you did anything wrong that contributed to the accident, you cannot recover anything for your injuries. This is called the doctrine of "contributory negligence." Other states employ the less harsh rule of "comparative negligence." In these states, the amount of your compensation is reduced in proportion to the extent of your own fault. For example, if your carelessness contributed 30 percent to the accident, you can only recover 70 percent of your damages from the other driver. After determining fault, the second step is calculating damages. "Damages" are the economic, property or health-related losses caused by the accident. If someone hit your new car and broke your arm, your damages might include the cost of repairing your car, the depreciation in the value of the car after it is repaired, the cost of renting another car while yours is in the shop, the medical expenses for treating your arm, gas mileage for trips to the doctor, the value of the physical pain and mental suffering caused by a fractured bone and reimbursement for lost time from work. Damages are often just as hotly contested as fault. A negligent driver might defend herself by insisting that the plaintiff broke his arm before the accident. To help prove this, she might subpoena past medical records, interview physicians, hire expert witnesses, and get a court order for the plaintiff to be examined by an "independent" doctor. Or she might contest the amount of damages. She might insist, for example, that she should not have to pay for the plaintiff's trips to a psychotherapist to overcome his fear of intimacy allegedly caused by the broken arm. Measuring damages in personal injury cases often proves difficult -- generally the biggest disputes arise over "pain and suffering." You can get a sense of the difficulty by asking yourself, "How much money would it take to compensate the innocent victim of a car accident for losing her leg, or losing her eye, or causing her miscarriage or straining her back?" Our society asks jurors these questions every day.

Getting Help
Regardless of whom you believe was at fault in an automobile accident -- or in other accidents in which others are involved -- you should consult with a lawyer immediately. The events that unfold in the first few hours and days after the incident can dramatically shape the entire course of a personal injury claim. An attorney can advise you on a variety of steps you can take to protect your rights. A good attorney will probably instruct you to preserve evidence, for example. She'll tell you to obtain photographs of the accident scene, the vehicles or machinery involved and any visible injuries you may have. She will interview witnesses before memories get fuzzy. She'll consider hiring experts to clear up any questions about the cause or extent of your injuries. If the other side claims they're not at fault, she'll consider hiring an expert to "reconstruct" the accident based upon the physical evidence. This might involve creating a computer simulation to provide visual evidence for the jury. The attorney you choose should show interest in gathering all this evidence with an eye toward trying the case in court. If you have an attorney who appears to be waiting around for the case to settle, your alarm bells should be ringing; a good attorney does not assume a case will settle. Being prepared for trial may ultimately be what prompts the other side to offer a fair settlement. Be wary of hiring an attorney who rarely, if ever, goes to trial. Similarly, if you know you don't want to go to trial, you shouldn't file a lawsuit. If you don't think you can afford a lawyer, call a trusted law firm and tell them about your situation anyway. Where permitted, some lawyers will handle personal injury cases on a contingent fee basis. This means you do not have to pay the lawyer up front, but he or she takes the fees out of any recovery you get. The fee is typically a percentage of the recovery, usually ranging from 30 to 40 percent.

What to Expect?
After an initial meeting with your attorney, she will begin putting your case together by interviewing witnesses and thoroughly investigating and documenting the accident, as mentioned above. After this information-gathering phase, the attorney will begin discussions with the other party. In the case of car accidents, this is generally the other driver's insurance company, who is contractually obligated to defend that driver. Many attorneys organize all the evidence and medical records in a settlement brochure, which is sent to the insurance representative for consideration of the claim. The attorney might also include in the brochure a demand for a specific amount of compensation. After some back-and-forth with the insurance company, many cases settle. Many others do not and a lawsuit must be filed. Anyone who enters into litigation should be prepared for its rigors. Invasion of privacy, accusations of untruthfulness and countless hours of preparation are all prices to be paid by the injured person electing to file a lawsuit. In many cities, the lawsuit will drag on for upwards of one year or more due to backlogged courts. Many a victorious personal injury litigant has exclaimed, "No way was that worth the hassle!" Some pursue what they perceive as justice and receive nothing. The personal injury victim who enters litigation seeking fair compensation will often meet with disappointment. The victim who seeks the best possible redress that our society can offer will generally be satisfied with the opportunity to tell a jury about the impact of his injuries.