The Basics
Preparing Your Case
Settlement Process
The Trial

Basics Of Personal Injury Law

The modern phrase we're all familiar with is "personal injury," but it's also known as "tort," the French word for "wrong." Personal injury or tort law is intended to compensate you if someone's carelessness, recklessness or intentional misconduct injures or damages you or your personal belongings. For example, if someone hits the back of your car while you are stopped at a red light, that person commits a tort.

The person who commits such a wrong is often referred to as the "tortfeasor," from the French for "wrongdoer." If the person harmed files a lawsuit, he or she is called a "plaintiff" or "claimant," and the wrongdoer is called a "defendant."

Torts can be classified in three broad categories: negligence, intentional torts and strict (or absolute liability) torts.

What is negligence?
The most common tort--and the one most difficult to define--is negligence. Negligence is generally defined as the failure to use reasonable care to avoid a foreseeable harm to a person, place or thing. An individual will be liable if his or her unreasonable act or failure to act causes an injury, even if the harm is unintentional.

Some common negligence claims involve:

• slip and fall accidents (a person slips, falls and is injured on someone else's property);
• alcoholic beverage liability (a provider of alcohol--either a social host or bartender--serves too many drinks to an underage or noticeably intoxicated individual who is then involved in an accident that causes injury to a third person);
• injuries on the job (workers compensation);
• motor vehicle wrecks (wrecks caused by inattentive, reckless or careless driving); and
• medical malpractice (when a medical provider doesn't maintain the level of skill and knowledge commonly exercised by other medical providers).

• Assault and Battery (tort of outrage)
• False imprisonment
• Intentional infliction of emotional distress
• Fraud and misrepresentation
• Wrongful death
• Harm to reputation (defamation)
• Trespass
• Trespass to chattel (theft of personal property)
• Unauthorized contamination of property

Many intentional torts are also criminal offenses. For example, an assault can result in both civil charges and criminal charges.

What is strict (absolute) liability?
Strict or absolute liability means that the defendant is responsible for injuring another person regardless of negligence or intent. Some instances in which the law might apply strict liability are with regard to product liability, abnormally dangerous or ultra-hazardous activities and animal owner's liability. For example, a plaintiff may be entitled to compensation after a defective product injures him or her regardless of whether the manufacturer was actually negligent. In other words, the plaintiff only has to prove that a product is defective or unreasonably dangerous and that the defect caused the injury. It is not necessary to show that the manufacturer was careless or negligent, which is much more difficult to prove.

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Preparing Your Case: Overview

If you do decide to pursue a personal injury claim, it is necessary for you to determine whether you can facilitate a settlement yourself or need an attorney to help you. Many plaintiffs are able to obtain unfair or small personal injury settlements without the help of an attorney. The insurance company knows that you do not know how to file a lawsuit mush less present one at trial. However, if the settlement offer is inadequate, you should contact an attorney to help you move forward to trial. Some factors you should consider in deciding whether or not to hire an attorney include:

• the extent of your loss and the complexity of the case,
• the time and energy needed to work properly pursue your claims to trial,
• your ability to function in high-pressure situations, and
• your chances of winning the case.

Shortly after the accident, you should also expect a visit or call from an insurance adjuster from the defendant's insurance company who will assess the amount of your damages based upon what the insurance company is willing to pay to obtain a release from you. It is ok to   talk with them but DO NOT GIVE THEM A RECORDED STATEMENT. The insurance adjuster may try to offer you a certain amount of money to settle your claim. You need to know how much your claim is worth in order to evaluate the insurance adjuster's offer.

Whether you elect to hire an attorney or not, you should gather and organize evidence that will help you win your case. For example, you should obtain copies of medical records, police reports and witness statements. All the evidence that you compile will bolster your arguments. All in all, the better prepared you are, the more likely it is that you will win your personal injury case.

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Why Settle A Personal Injury Claim?

Movies and television often portray the dramatic unfolding of personal injury cases in equally dramatic courtrooms. The reality is that justice is more often a slow and methodical process played out in a negotiating room. A fair, safe and reasonable settlement is sometimes a wiser choice than taking your personal injury case all the way to court.

A majority of personal injury cases never makes it to the courtroom. Settlements are negotiated because they eliminate the uncertainty and risks inherent in a courtroom trial. Whether it's a product liability, automobile accident, slip and fall or medical malpractice lawsuit, a plaintiff risks winning nothing in damages from a personal injury case that goes to court.

Court calendars are usually clogged, trial preparation is expensive and time consuming, and delays in the legal process such as postponements and appeals are inevitable. Such delays can be unnerving for the injured victim. A fair, safe settlement gives the plaintiff his or her damages award immediately, while a trial can take years to complete.

The defendant also runs a risk in the courtroom. Whether the defendant is a corporation or individual, there is always a chance that a jury will grant a substantial award to the claimant. When the costs of defending the suit are added in, the defendant's payout can be many times more than the amount paid to the plaintiff in a settlement.

For both sides, then, a settlement is often the best way to resolve a dispute.

The settlement process
The settlement process begins with a demand letter. You or your attorney should send a letter to the opposing side, setting forth your case. The opposing side will usually respond to the demand letter with a counteroffer or a rebuttal.

After the opposing side responds, you can reevaluate your case, and then go forward with a new offer or more evidence to support your original offer.

Once you reach an agreed upon amount, put it in writing. The insurance company will want you to sign a "release" that prevents you from pursuing this claim any further.

If your settlement negotiations fail, you have a few options, including:

• complaining to the state's Department of Insurance,
• entering into alternative dispute resolution, and
• filing a lawsuit.

Time limitations
During settlement negotiations, you need to be aware of the time limitations. Every state sets limits on how much time you have after an accident to file a lawsuit. This is called a "statute of limitations." Don't negotiate so long that you miss the opportunity to file a lawsuit.

In most states you have two years to file a personal injury lawsuit. The clock starts running at the time of the injury. In some limited situations, the time period may not begin until the discovery of the negligent, reckless or intentional act. For example, if a loved one dies from what you initially believed was an accident or natural causes and you later discover that the death was caused by someone's negligence, recklessness or intentional act, the time period starts running on the discovery of that act.

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FILING A LAWSUIT:

General Overview

If you are unable to settle your personal injury claim, you can file a lawsuit. There are two avenues for doing this depending on the extent of the damages involved.

• If your dispute is under a certain amount of money--usually around $5,000--you can file in small claims court where people represent themselves (normally not recommended) or  in the Civil Division of the District Court in your county. 
  
• If your damages are in excess of $5,000.00 you will have to file your lawsuit in the Civil Division of the Circuit Court. While you are not required to have your own attorney the insurance lawyers are not going to help you submit your case so retain your own attorney.