Personal Injury in the United States

Civil law disputes that stem from an accident of some kind. Personal or bodily injury cases account for a substantial number of actions under tort law. Tort law covers noncriminal wrong done by one person to another. Although tort law also includes damage done to property, personal injury cases are confined to injury to one’s person. A majority of these cases derive from motor vehicle accidents. Personal injury cases require that the plaintiff establish the defendant’s responsibility for the injury. If liability can be established, it is then necessary to consider the relief to which the plaintiff is entitled. Relief may be confined to actual damages, the costs incurred from the injury. In other situations, there may be some consideration of damages to compensate in some way for the injury. Such compensation includes, but goes beyond, mere recovery of costs. While the vehicle accident case is the single largest category of personal injury dispute, there are other types. A rapidly increasing category is medical malpractice. (1)

Analysis and Relevance

Many people suffer personal injuries, but relatively few actually pursue formal litigation. Indeed, what is noteworthy about personal injuries is that less than five percent of these situations produce lawsuits. Rather, claims are usually settled out of court prior to the initiation of a lawsuit. Many potential plaintiffs are interested in quick settlements, and insurance companies who represent most personal injury defendants prefer settlements prior to the injured party securing legal counsel. Thus, while personal injuries do produce considerable litigation, the number of cases actually filed represents only a small proportion of those cases that might have been litigated. If a settlement cannot be reached between the parties directly, those with personal injury claims usually seek assistance from an attorney. Securing counsel may or may not result in litigation. Settlement is still the probable outcome, even after a lawyer is brought into the situation. Lawsuits are eventually commenced in a small proportion of cases. The lawsuit reflects the inability of the parties to arrive at a settlement, but commencing the suit does not foreclose out-of-court settlement. On the contrary, the discovery process might facilitate settlement. So, too, might judicial intervention, as pretrial conferences conducted by judges often enhance settlement prospects.

Judges may also require some alternative method of dispute resolution, such as mediation, which might, in turn, produce a settlement. Settlement remains the probability throughout because both plaintiff and defendant want to avoid the cost, risk, and delay associated with a trial. Adjudication of personal injury claims at trial is the final step, but it takes place in less than one percent of all cases filed. (2)

Personal Injury Mediation Practical Tips

By Joel P. Franciosa. He is an experienced Oakland defense lawyer who now works exclusively as a mediator.

Preparation is especially important with respect to the mediation of a personal injury case. In fact, preparing a client’s case is only half the picture. A talented advocate will make sure the other side is also prepared.
This advance work is not about helping an opponent score points. Rather, it’s about making sure an adversary has all the information necessary to justify an appropriate settlement.

How does an attorney properly prepare for a successful PI mediation? The answer depends on who the client is.

The Plaintiff’s View

The key for plaintiffs counsel is to provide everything the defense needs to evaluate the case and assign the necessary authority (read: money) to the file. Smart lawyers provide this information before the defense asks for it. A fully documented demand letter – supported by jury verdicts, reports, medical bills, receipts, and other evidence pertinent to amount of money requested – goes a long way.

Once that is done, counsel should follow up with phone calls to attorneys on the other side to make sure they have everything they need to evaluate the case.

Along the way, plaintiffs counsel must review the same records that have been subpoenaed by the defense – and must know those records inside and out.

By the time the case reaches mediation, both sides should have had the opportunity to intelligently assess the injuries, the treatment, the damages incurred, the realistic prospects for recovery – and liability.

Law is a people business. Counsel on both sides must objectively evaluate the plaintiff and get a realistic sense of how that person presents as a witness. Then the attorneys must discuss that issue with opposing counsel, since it will affect the value of the case.

A full understanding of the case dynamics will permit a plaintiffs lawyer to determine the best dollar level to begin negotiations, as well as what moves to make during negotiations. Most important, a smart lawyer will remain flexible, keeping an open mind about a reasonable ending number.

Savvy plaintiffs counsel know that making the defense claims representative’s job easier leads to success. Indeed, it is not uncommon to hear mediators relate that the plaintiffs attorneys who volunteer pertinent information to the defense consistently get more money in settlement than attorneys who guard such information as if it were a state secret.

The Defense View

Insurance claims representatives review piles of data for every case, and to them each one looks the same. Defense attorneys often walk a line between their own evaluation and that of a claims rep. Sometimes that difference makes settlement difficult, but a reality check can help bridge the gap.

From the defense perspective, everything is paper driven. If there is no medical record, wage record, photograph, property damage estimate, police report, or other supporting documentation, the plaintiff’s claim will be viewed with skepticism. And the questions never change: What’s the injury? When and how did it happen? Who are the witnesses? Are there photos, reports, records, and testimony? Asking for documentation is not a personal attack on the plaintiff or plaintiffs counsel. It is merely a request for the type of data that justifies writing a check. A lawyer who wants money from the defense must expect to lay the supporting information on the table.

A Mediator’s Role

Effective mediators understand these realities. They can help the parties get ready for a productive mediation by making sure each side’s information gets to the other. For example, if a key deposition will change the case dynamics, perhaps it should be completed so the case is truly ripe for negotiation.

Good mediators will also advise counsel that ex parte communication with the mediator to discuss the issues is perfectly fine. In fact, it should be encouraged, since the objective is for the parties to rely on the mediator as an honest broker of information.

Mediators often contact the parties, jointly or individually, to determine whether the scheduled mediation date will be productive and if something more needs to be done to make it so.

Perceptive mediators help the parties understand key dynamics. The plaintiff may not only be physically injured; he or she may also harbor feelings of resentment stemming from rude treatment at the accident scene or, perhaps, an early interaction with an insurance representative. A mediator who picks up on these subtleties will alert the defense so the situation can be corrected. Sometimes an apology is in order – and if so, it must be sincere. A respectful apology opens the door for the defense to explain the carrier’s legitimate concerns, and to have them heard and appreciated by the injured party.

Experienced mediators will take the time to fully explain the claims procedure to the plaintiff, noting that the claims representative who is expected to authorize settlement needs to make a face-to-face evaluation of the person bringing the claim. Without this, the plaintiff may not appreciate that prior to mediation all the claims rep has is a report from defense counsel explaining how the injured person testified. Mediation is usually the first meeting between the real decision makers, and it is crucial for everyone to recognize that.

For a productive mediation, the parties should acknowledge that the case involves human beings on both sides who must work toward a mutually beneficial result.

Successful mediation is the result of good preparation by the plaintiff, the defendant, and the mediator. In the end it’s a team effort, and when the team comes together at the same place and time, everyone benefits.

Everyday individuals are injured in accidents that were not their fault.

When Does a Personal Injury Case Arise? (in General)

(In United States law, in the context of Personal Injury) A personal injury case may arise when a person sustains an injury in such a manner that another person or entity may be legally responsible for it.

What Are the Legal Theories Involved in Personal Injury Cases?

Note: Find out more information about this topic in this American legal Encyclopedia. The most common legal theory regarding a personal injury case is negligence.

What Are the Legal Elements of a Negligence Claim?

Note: Find out more information about this topic in this American legal Encyclopedia. A negligence claim is based on the four following legal elements. In order to win a personal injury case, a victim must be able to show all four of the following by at least a preponderance of the evidence, meaning that the facts are more likely than not the ones that the plaintiff presents.

Duty

Note: Find out more information about this topic in this American legal Encyclopedia. The first element of a personal injury case is a duty. Some people have a duty toward specific other individuals based on a special relationship between them, such as parent and child, employer and employee or business owner and customer.

Breach

Note: Find out more information about this topic in this American legal Encyclopedia. Once duty is established, the person bringing the claim, the plaintiff, must show how the defendant breached this duty of care.

Causation

Note: Find out more information about this topic in this American legal Encyclopedia. The plaintiff then has the burden of proof of establishing that the defendant’s actions actually caused the defendant to suffer the harm that he or she suffered.

Damages

Note: Find out more information about this topic in this American legal Encyclopedia. The final element of a negligence claim is damages. It is not enough for a person to be involved in an accident in order for legal liability to arise.

What Is Strict Liability?

Note: Find out more information about this topic in this American legal Encyclopedia. Strict liability is a legal theory that requires that certain members of society be held up to a higher standard.

What Are the Most Common Types of Personal Injury Cases?

Note: Find out more information about this topic in this American legal Encyclopedia. One of the most common personal injury cases involves individuals who are injured in motor vehicle accidents.

Premises Liability

Note: Find out more information about this topic in this American legal Encyclopedia. Premises liability refers to the legal concept that a landowner owes a certain duty of care to individuals on his or her land.

Invitee

Note: Find out more information about this topic in this American legal Encyclopedia. An invitee is someone who is on the property usually for the pecuniary gain of the landowner.

Licensee

Note: Find out more information about this topic in this American legal Encyclopedia. A licensee is someone who has permission to be on the land. The landowner must usually warn this individual of any known dangers that are not apparent.

Trespasser

Note: Find out more information about this topic in this American legal Encyclopedia. The landowner generally owes no duty to a trespasser. However, he or she cannot lay traps for trespassers.

Medical Malpractice

Note: Find out more information about this topic in this American legal Encyclopedia. A specialized type of negligence claim that concerns defendants in the healthcare industry is medical malpractice.

What if the affected people was Partially at Fault?

Note: Find out more information about this topic in this American legal Encyclopedia. Even if the affected people were partially at fault for an accident, the affected people may still be entitled to some recovery.

How Do the affected people Know if their Case is Worth the Fight?

Note: Find out more information about this topic in this American legal Encyclopedia. Personal injury cases are often complicated and may take years to resolve if they go all the way through trial.

What Should the affected people Do if the affected people Suffer a Personal Injury?

Note: Find out more information about this topic in this American legal Encyclopedia. If the affected people were injured in an accident caused by another person or entity’s negligence, begin documenting their injuries.

How Do the affected people Start a Personal Injury Case in Court?

Note: Find out more information about this topic in this American legal Encyclopedia. They should talk to their personal injury lawyer about how the affected people should proceed with their case.

Main Elements

Personal Injury Defined

Personal injury law refers to the legal remedies and defenses involved in civil lawsuits brought as a result of wrongful conduct. In fact, the word “tort” comes from a Latin term meaning twist, wrong, or harm.

Common Torts and Defenses

Personal injury law encompasses a number of causes of action besides negligence. Many of these fall under the umbrella of intentional torts.

Resources

Notes and References

Definition of Personal Injury from the American Law Dictionary, 1991, California

Personal Injury