Unfortunately, many of us, or members of our families, will at some point be injured either in a car accident, at work, or in some other manner. When this happens, in addition to the injuries you have received, you are also faced with a host of legal uncertainties. Can you recover damages? If so, from whom? How do you become fairly compensated for these injuries? What is the process you must go through to recover damages? This article is intended to explain some of the basic principles of personal injury law and address the basic questions many clients have at an initial conference with a personal injury lawyer.
The First Component of a Good Claim: Liability
In a personal injury claim, there are two major components – liability and damages. In order to be compensated for injuries, one must show that another person or entity was negligent in their acts or failed to act, and that the other party’s negligence was a direct cause of the injuries. Simply being seriously injured is not enough; if there is no one responsible for causing the injury, then a personal injury claim will not succeed. Thus, regardless of what damages a person may have suffered in an accident, the analysis always must begin with the issue of liability.
A person or company may be strictly liable for certain damages caused by them, their property, or their products. For example, a dog owner is strictly liable for damages caused by the owner’s dog. However, liability is often based on the failure of a person, who owes a duty to another person, to take reasonable care in performing that duty. For example, we have a duty to drive in a safe manner, and, by failing to drive safely, one is liable in the event that failure to drive safely causes injury to another person.
Tied in with the liability issue is whether you were more at fault than the other party in causing your injuries. The law in Wisconsin states that you are not entitled to recover any damages from another person if your negligence is greater than the negligence of another person who may have contributed to the accident. Further, even if you were not more at fault, your damages will still be reduced by the percentage of your negligence. For example, assume you failed to stop at a red light and were struck by another car, resulting in your serious injuries. Your negligence for failing to stop would likely be greater than the other driver’s negligence for failing to maintain a proper lookout and take evasive action to avoid the accident. As a result, you will not receive any compensation for your injuries. If the situation were reversed and the other driver failed to stop, you would likely recover some damages, but not necessarily all of your damages, because you may have been partially responsible by failing to take evasive action.
Damages
Once liability is established, the issue of damages can be addressed. The more easily-calculated damages usually concern past medical expenses and lost wages. In order to recover medical expenses, whether past or future, there will need to be proof to a reasonable degree of medical certainty that your injuries were caused by the accident, and the medical treatment was both reasonable and necessary. Usually, your treating physician or healthcare provider can provide an answer to the causation issue, but not always. Sometimes injuries are not clearly related to the accident, or there may be a pre-existing condition that may have been exacerbated by the accident. A careful review of your past medical history and treatment records is often necessary, and sometimes an independent doctor may need to be retained to establish the causation issue, as well as provide testimony regarding the necessity of your treatment.
Other damages may include fair compensation for your past and future pain and disfigurement and the loss of society and companionship of your spouse or children. These types of damages are often difficult to ascertain, since, unlike medical expenses, there is no direct correlation to an out-of-pocket expenditure. While it is difficult to put a dollar amount on either the pain one suffers or one’s loss of the enjoyment of life, monetary compensation is the only way our judicial system can compensate an injured party for these kinds of losses. Only an attorney who has handled a number of personal injury claims and is familiar with what juries have done in the past can give an educated assessment of what one might expect to receive for these types of damages.
In some cases, there can be additional damages as the result of a special statute. For instance, if a dog has previously injured another person, animal, or piece of property, Wisconsin allows for double damages when the dog causes injury a second time. In other cases, punitive damages can be awarded if the person who caused the injury did so intentionally, wantonly, or recklessly. A situation where punitive damages may be appropriate is when an accident is caused by a driver who was under the influence of alcohol when the accident occurred.
The law also places caps on the amount of damages a person can recover from certain individuals of entities, or a cap on the nature of the damages. Two examples include: in most instances, the law limits the amount of damages you can receive from a municipality to $50,000 and the amount of damages parents can receive on the death of their child is capped at $500,000.
Establishing the appropriate amount of damages in any case requires a careful analysis of a number of factors. In addition, it is useful to compare the damages awarded in other similar cases. The advice of an attorney who is experienced in personal injury law is often critical.
Should You Meet With an Attorney?
The law requires that a person settle their claim, start a lawsuit, or give special notice within certain limited times after the injury. The amount of time allowed to take action depends on the person or entity that caused the accidental injury. Generally, for a personal injury case, a person has three years from the date of the injury in which to file a lawsuit. However, if the injury was caused by an agent of the state, city, or school district, notice of the injury must be given to the governmental entity within 120 days of the accident. Different states also have different statute of limitations periods. Therefore, it is important to consult with an attorney as soon as possible after an accident occurs to make sure an important deadline is not missed, which would bar recovery for one’s injuries.
If a person knows for sure that their injury is a minor one that will not result in time lost from work or school or will require substantial medical care, then they may want to settle their personal injury claim without the assistance of a lawyer. However, if a person has been seriously injured or is unsure as to the outcome of their injury, then an experienced personal injury attorney should always be consulted as soon after the injury as possible, and preferably before any statements are given to a claims adjuster or before any papers of any kind are signed.
What to Expect When You First Meet With an Attorney
In your initial conference with an attorney, don’t expect the attorney to tell you what your case is worth. An attorney who shoots you some figure is probably more interested in having you sign a contingent fee agreement than in giving you an informed and intelligent response. Instead, expect the attorney to first thoroughly investigate the cause of the accident and also gather important medical records, medical bills, and wage information. Only after an investigation of the liability aspects is complete, and a full understanding of the nature of your injuries is obtained, can an attorney assess what your case may be worth. This process can often take several months to complete, and in some cases much longer, depending on the nature of the accident and the type of injuries you suffered.
You should also expect the attorney to inquire about insurance. Often the existence and amount of insurance available will be a determining factor in whether it will be worthwhile to pursue a personal injury claim. An examination of the other driver’s policy, as well as your own policy in the case of uninsured or underinsured drivers, may be required. If very little insurance is available, then an assessment of the responsible party’s ability to pay a potential judgment is in order. Oftentimes, if no insurance exists, it may not be worthwhile to pursue a claim. The old adage, “you can’t get blood out of a turnip,” has often resulted in very good liability and damage claims being closed with no recovery.
Lastly, at your initial conference, or shortly thereafter, expect to sign a fee agreement with your attorney. In almost all personal injury claims, the client will enter into a contingent fee agreement with their attorney. The contingent fee states that, in the event of a recovery, the attorney will receive a certain percentage of the gross recovery. If there is no recovery, the attorney will not be entitled to any fee, though you may still be liable for out-of-pocket expenses incurred in pursuing your claim. A contingent fee agreement must be in writing in order to be enforceable.
The percentage an attorney charges for his or her services may vary, depending on the circumstances of the accident and the nature of the damages. The contingent fee may change at certain stages of representation. For example, the contingent fee may be less if settled before trial, more if the matter goes to court or arbitration, and even more if there is an appeal or retrial of the case. While the most common contingent fee is approximately one-third of the gross recovery, it may be as little as 25% or up to 50%, depending on the circumstances.
Before you sign the fee agreement, ask questions. Does the attorney have a substantial practice and experience in personal injury law? Has the attorney handled other cases similar to yours, both with respect to the type of accident and nature of the injuries? Are you comfortable with the attorney, and will that attorney be primarily responsible for your file? Does the attorney have sufficient staff and resources to handle your case? Does the attorney practice regularly in the county or court where your claim may be brought and is the attorney familiar with local practices?
The Takeaway
Unfortunately, every day people are injured, often due to no fault of their own, and they require the assistance of an attorney to receive fair compensation for their injuries in the complicated field of personal injury law. If you find yourself, or a member of your family, in such a situation, please contact our office and make an appointment so we can discuss the merits of your case.