A. If a personal injury claim fails to settle, and a lawsuit is initiated, the case is assigned to the civil courtroom. The requirement of what a party must prove to prevail in that case is referred to as the “burden of proof.
This burden of proof is essentially the standard applied by the judge or jury to determine if that party has established the facts necessary to win the case. A very old definition is as follows: “In the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a case. The obligation of a party to establish by evidence the requisite degree of belief concerning a fact in the mind of a trier of fact or the court.” Thus, a jury or judge weighs the evidence presented by one side in a trial and decides whether or not that side has met that burden. In the end, being able to meet that burden, or failing to meet that burden, will determine who wins the trial.
The burden of proof in a personal injury case is quite different from the burden of proof in a criminal matter (such as a drunk driving case, or a murder). The jury is given instructions by the judge, and those instructions explain the burden of proof simply as “more likely true than not true.” It is further explained as “more than fifty percent (50%)” or “tipping the scales of justice ever so slightly.” Contrast this with the oft-repeated burden of proof in a criminal case—“beyond a reasonable doubt.”
A. When you have been injured as a result of someone else’s wrongdoing, or if a loved one is killed, you may be entitled to sue the responsible party in court to recover damages.
Frequently, the cases that seek recovery for injuries and damages suffered due to someone else’s fault involve negligence. There are many ways to state this, but one way is to say that when making a claim for negligence, the injured person is claiming that someone else has failed to act in a reasonable matter and violated the duty of care owed to keep the injured person from harm.
Personal injury law encompasses a broad range of cases, often lawsuits are filed when injuries have been suffered in an automobile collision, slips or trips in stores or homes, doctor’s errors, defective products, neglect or intentional harm caused to an elderly person, etc. Peace of mind is available when you or a loved one have suffered injury by consulting with an experienced attorney to determine whether a claim can be made to seek compensation to fix, help or make up for the harms and losses caused by someone’s dangerous conduct or neglect.
A. Negligence is a broad area of the law that allows for compensation to a person harmed because another person failed to use reasonable care to prevent harm to others. In other words, a person can be negligent by acting or by failing to act. To explain further, a person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.
A. A person injured because of the fault of some other person, or another entity (such as a business or a governmental entity), is entitled to economic damages, as well as non-economic damages.
Economic damages are those things that have a “price tag” on them. These include such things as:
- Medical expenses (both past and future);
- Lost earnings or wages (both past and future)
- Loss of earning capacity; and
- The loss, destruction or damage to personal property (as well as the loss of use of personal property)
California law also provides for the recovery of damages for the loss of the ability to provide household services.
Though household services are generally provided without being paid for, the law recognizes that those services have value.
Parties bringing a case based for wrongful death may also seek economic damages for the loss of the financial support provided by the decedent, as well as funeral and burial expense, and the reasonable value of the household services that can no longer be provided.
Non-economic damages include the monetary value of the physical pain, suffering, loss of the enjoyment of life, mental anguish and mental suffering, inconvenience, physical disfigurement, grief, anxiety, physical impairment and emotional distress suffered by the injured person.
In cases involving a wrongful death, a party bringing a claim on behalf of a loved one may seek damages for the loss of love, loss of training and guidance, and the loss of companionship, comfort, care, society, protection, affection and moral support.
These damages obviously do not have a “price tag.” California juries are instructed to use their best judgment in allowing for a reasonable amount of money to compensate for these damages, based upon the evidence presented and upon common sense.
A. In my 37+ years of practice, many—if not most—of my prospective clients have wanted to know the value of their claim before deciding whether to hire a lawyer to help them with the process. I wish it were easy to give that number with any degree of accuracy at that initial visit. Unfortunately, it is not simple. One might be able to make a rough estimate of the economic loss, the real challenge of a professional comes with the evaluation of the “priceless” losses. How can the loss of a limb, a permanent injury, or a facial scar, for example, be adequately compensated with money? That number is ultimately up to the jury, under the advocacy of the lawyers. This number varies from individual to individual and circumstances of the case affect that number.
While insurance companies often use computer programs to enter data such as the type of injury, the cost of the injured person’s medical expenses, the amount of wage loss (time missed from work due to an injury), the person’s age, the location of the accident, and other factors that the insurance industry compiles to defend claims made by injured people, juries do not have access to this information (of course) and do not use anything other than their common sense and collective judgment based on their life experience and wisdom to reach that compensation figure.
Here’s where the skill of the lawyer can make a significant difference in the outcome of the case. Pre-trial settlement negotiation entails making intelligent assessments of what a jury might award should a case go to trial. An experienced attorney can not only persuade a jury of the value of their client’s injury case, but can also persuade an insurance company to offer the highest amount of money possible to settle a case before trial.
A. Many personal injury lawsuits involve automobile collisions, and include vehicles such as trucks, buses, vans, motorcycles and bicycles.
Every person must drive their vehicle and use reasonable care to see what can be seen. The driver must keep a lookout for pedestrians, obstacles, and other vehicles. Drivers must drive at a speed that is safe for the circumstances, and keep their vehicle under control at all times. To do less is negligence.
We’ve all seen drivers impaired by alcohol or drugs, or distracted by cell phones, eating, applying makeup, etc. It is not necessary to prove impairment or distractions in order to show the driver was negligent, but if these can be shown, a jury is frequently more incensed by this conduct and the verdict numbers reflect their attitude.
A. California law requires all drivers to have insurance. Nonetheless, many drivers do not. Thus, many clients have additional coverage in case they are injured by the acts of an uninsured motorist. Thus, in most injury lawsuits, there is some kind of insurance.
Unfortunately, insurance companies do not always do the right thing in dealing with an injured person. In fact, some over-zealous claims representatives engage in behavior and tactics designed to take advantage of an injured person. Many insurance companies simply offer a woefully inadequate settlement amount under the assumption that the injured person will not seek out an attorney, hoping that the injured person will never learn that they’ve been cheated. Sometimes, this conduct is even carried out by the injured person’s own insurance company when it fails to pay their legitimate claims, fails to provide a legal defense, fails to reasonably authorize medical treatment, or fails to pay for property damage that is covered by an insurance policy.
For your own peace of mind, calling an experienced attorney is the first step toward obtaining the fair sums needed to fix, help and make up for the harms and losses suffered due to someone else’s dangerous conduct.