Personal Injury Law Basics
Personal injury law, classified under tort law, is highly complex. There is no one definition that is both concise and comprehensive. Personal injury cases can occur in everything from car accidents to slander. The simplified legal definition, however, is any physical, mental, or emotional injury sustained as a result of the actions or negligence of another party.
Because accidents and incidents can occur in virtually every imaginable situation, it would be impossible to provide a completely inclusive description of the types of injuries which may warrant a personal injury claim. However, some of the most common personal injury cases include:
- Vehicular accidents. Accidents involving cars, large trucks, motorcycles, and other motorized vehicles are perhaps the most common source of personal injury claims. Motor vehicle accidents have the potential to cause severe injuries and, of course, death. Many times, the total expenses for the injury far exceed what anyone would have originally guessed, particularly when lost wages and other expenses are counted in. Insurance companies often want to settle quickly and quietly for this reason—before the injured party fully realizes the entire economic damage of the situation. Once a settlement is accepted, the victim loses any rights to bring a lawsuit later.
- Premises incidents such as slip and fall injuries. Business owners, and even homeowners, have a responsibility to maintain their property and take reasonable efforts to ensure the safety of anyone who may enter thereon. Injuries that happen on another person’s property fall under premises liability and/or negligence. In shortest terms, if a property owner was aware of a potentially hazardous situation, and an injury occurs because of that situation, there is negligence on the property owner’s part and he or she is liable for the expenses that occur from the injury. Of course, a property owner does not always have to be aware of a danger; any injury that occurs on his or her property is one that he or she may be liable for, provided that the injured party was not behaving in a reckless manner.
- Medical malpractice. Medical malpractice is an especially complex area of personal injury law and includes everything from birth injuries to practitioner or facility negligence. The statute of limitations for medical malpractice claims in Georgia is shorter than that for most other types of personal injury cases, so it is vital to seek legal counsel the moment you suspect something is amiss. It is often incredibly difficult to win a malpractice case unless the negligence or reckless act is so obvious and straightforward that it cannot be denied. Physicians and facilities have tremendous amounts of insurance against such claims, but the insurance companies are not quick to pay out. They often have entire teams of attorneys and doctors working to prove that whatever harm occurred was not the fault of the defendant.
- Worker’s compensation. This is another difficult area of personal injury law. All employers are required to carry worker’s compensation insurance. As unfortunate as it is to become injured on the job, it’s even more unfortunate to know there is insurance set aside for such circumstances and still have to fight for your right to the benefits. Far too often, worker’s compensation boards will attempt to prove the injury was the fault of the victim. While this may indeed be true a small portion of the time, it certainly does not make up the majority of injured workers. When you are competent, sober, and carrying out the duties of your job as dictated by your employer, and you become injured anyway, you should receive compensation adequate enough to cover your medical expenses as well as your lost wages. It’s as simple as that.
- Products liability. Any item that is purchased, excluding services and real estate, can be scrutinized for product liability. Although personal injury and product liability, are often referred to as separate things, they do both fall under tort law. Products that cause injury to a person through defective design, manufacture, or marketing, can be the basis of a personal injury claim.In many cases, you do not have to be the one to have purchased a product in order to bring a claim—you only must have used it and suffered an injury in the process. Product liability cases can be difficult to win because so much burden is placed on the victim to prove that is was indeed a defect that caused the injury and not simply misuse. A personal injury attorney can be a tremendous ally in these cases.
This is just the tip of the iceberg of everything that personal injury encompasses. As you can see, it is all quite overwhelming and complex beyond description—and that’s only a few examples of the types of personal injury situations that may arise. The process of going through a personal injury claim is more complex still, and each type of injury has varying specifications under the law.
Personal Injury Claims Process
Every personal injury case is unique and, as such, will experience its own unique process. Generally speaking, however, all cases go through certain steps before resolution. They are:
1. Attorney Consultation. Speaking with a qualified attorney should be the first thing anyone does when faced with a personal injury. An insurance company may offer an informal settlement in an attempt to prevent further action. Even if you think the offer is a good one, you should still speak with an attorney to gain further insight.
2. Lawsuit Initiation. If no immediate, acceptable resolution can be made, your personal injury lawyer will initiate your lawsuit by filing pleadings. There are many court documents that may be filed, beginning with your initial complaint. The complaint must be served to the defendant, and the defendant is given an opportunity to file an answer.
There can be several back and forth exchanges, each of which allow for a certain amount of time for the opposing party to act upon. You should be prepared for a potentially long and drawn out process, particularly if your claim is large.
3. Discovery. Discovery is the process of laying out all of the facts of your case and giving access to that information to both parties. It can be quite intrusive, especially when a defendant is looking for any possible way to lay the blame for your injuries on you. It is usually a remarkably lengthy process and typically the source of much frustration for victims.
Nevertheless, it is vital that you are completely open and honest with your personal injury lawyer about anything and everything. Failure to disclose certain information or willful dishonesty will only serve to inhibit your attorney’s ability to help you, and will likely cause you to lose your case.
4. Pretrial Resolution. Your case may be resolved before it progresses to trial in one of several ways. You or the defendant’s attorney can file a motion asking for a specific action by the court. The defendant may file a motion to dismiss the case for a variety of reasons, ranging from claims of a frivolous lawsuit to improper jurisdiction.
If the defendant fails to answer your complaint in a timely manner, then your lawyer can file a motion for a default judgment in which you automatically win your case and await the judgment of the court as to how much you are to be awarded in damages. A case may also be resolved in a pre-trial settlement, which we will discuss in further detail below.
5. Settlement. Most personal injury cases never make it to trial; they are settled out of court. Settlement occurs when the plaintiff and the defendant agree on the amount and type of compensation. The defendant agrees to pay a certain amount, and the plaintiff accepts the offer while waiving the right to pursue further legal actions.
There are a great many things to consider before accepting a settlement offer. As you will no longer be able to seek out greater damages, you must be absolutely certain that you consider any future expenses that may arise from your injury. In addition, your lawyer will advise you as to how much your claim may be worth at trial, as well as what the chances are for a favorable outcome should you choose to reject the settlement offer.
6. Trial. If your case is not resolved through pretrial motions, alternative dispute resolutions, or a settlement, it will progress to trial. Your case may go before a jury, or it may be heard by a judge only.
At the trial, all of the evidence and information surrounding your case will be presented for consideration. Medical records, items of discovery, and witness testimony may all be part of this process. Both sides will have the opportunity to cross-examine every piece of information or testimony that is presented.
When all of the details of the case are on the record and closing statements are made, the process of deciding verdict begins. If your case had a jury, the jury will deliberate the evidence from both sides, consider that evidence in accordance with the law and instruction from the judge, and decide which party is responsible for your injury. If your trial was in front of a judge only, the judge will make the final decision, including the amount of damages to be awarded.
7. Collection or Appeal. If you did not win your case, your attorney may be able to file an appeal to have the decision reconsidered. Keep in mind, however, that the defendant also has this right if you win your case. As long as the case is tied up in appeals, the defendant does not have to pay the damages you were awarded. Appeals can go on for many, many years, and this is a possibility you should be prepared for.
If you win your case and the defendant does not file an appeal within the appropriate amount of time, your work is still not finished. Some individuals do not have the resources to pay large sums in damages all at once, and some companies that do will refuse to do so on principal until made to do so. At the same time, many individuals and businesses do pay promptly upon judgment if they have the means to do so in order to avoid continued hassle.
Collecting can be a frustrating and tedious task, and will almost always require additional assistance from your attorney or a collection agency. There are many avenues for collection that may be available to you, from garnishing wages to seizing assets in the case of a company. If the defendant files bankruptcy, however, you will not be able to collect on your judgment.
Personal Injury and Comparative Negligence in Georgia
Sometimes, an injury occurs that is the fault of both the plaintiff and the defendant. In some states, if it can be proven that the defendant is not 100 percent responsible for the injuries, then no damages are rewarded. Georgia is a comparative negligence state, which provides fair and just compensation based on the level of liability.
Comparative negligence allows a plaintiff to recover some damages, even if he or she is partially responsible for the injury. The amount awarded is proportionate to the percentage of liability. For example, another motorist pulls out in front of you and causes you to crash. However, you were speeding and may have been able to avoid the accident had you been observing the speed limit. You are both responsible for the accident.
In this case, the judge or jury must determine the percentage of liability each person holds and take that into consideration when damages are awarded. So, if the judgment on the claim is $100,000, but you are found to be 25 percent responsible for the accident, you would only collect $75,000.
Comparative negligence can make personal injury cases infinitely more complex if more than one defendant is involved. If you know or think that you are at least partially at fault for the incident that caused your injury, then it is imperative that you discuss the circumstances with your lawyer. The provision for comparative negligence can be an advantage in some situations, but it can also be detrimental if not handled extremely delicately.
The Bottom Line on Personal Injury
Personal injury cases are rarely simple affairs. They can be messy, lengthy, infinitely frustrating, and personally invasive. Even so, most personal injury claims under $75,000 do ultimately settle without too much ado, comparatively speaking. Larger claims or high profile cases understandably take longer to resolve.
The key to any personal injury claim is to have an experienced, qualified attorney on your side from the beginning. He or she can guide you in documenting your case and provide much needed advice throughout every step of your claim. It is never prudent to attempt to settle your claim independently, no matter how amiable the responsible party may seem.
If you need a top-notch personal injury lawyer in Georgia, contact Michael C. Daniel today. Mr. Daniel has the experience and skills to provide you the very best in legal representation and help you get the settlement you so rightly deserve. He will be happy to assess the details of your claim and make a recommendation on the best course of action. Don’t leave your medical and financial future to chance. Get winning attorney Michael C. Daniel on your side right away.
I practice corporate law in Atlanta so when I am presented with complex injury cases, I look to refer those cases to attorneys that I am confident will do an outstanding job. The team that Prior, Daniel & Wiltshire provides is nothing short of superb. If you have a serious injury case that you need to refer, I strongly recommend Prior, Daniel & Wiltshire.
– Attorney John Daniel