How to Make the Most from a Personal Injury Lawsuit
A Personal Injury Lawsuit Can Help You Get Back on Your Feet

When you (or a family member) are harmed via an accident or injury, and someone else might be legally responsible, personal injury law lets you seek justice and get compensation. Although varied situations can raise a valid personal injury claim, suffering an injury doesn't automatically result in legal liability. Personal Injury Law

There are two likely outcomes of a dispute: formal lawsuit–where a private individual (the "plaintiff") files a civil complaint against another person, business, or government agency (the "defendant"); informal settlement–which resolves most disputes among those personally involved, their insurers, and attorneys representing either side. A settlement commonly takes the form of negotiation, followed by a written agreement to forgo further action, resolving the matter through payment of an agreeable amount of money.

Plaintiffs have a limited time in which to file a lawsuit, called a statute of limitations, which usually begins when the plaintiff is injured or discovers the injury. Statutes of limitations are established by state law, can vary from state to state, and often vary by type of injury.

What Constitutes a Personal Injury Case?

Car accidents spur the most personal injury cases. A careless driver can usually be held financially responsible for injuries stemming from a car accident. Exceptions exist in a dozen or so "no fault" states, where drivers must collect from their own insurers except in cases of "serious" injury.

Slip and fall claims constitute another common type of case. Property owners (or, in some cases, property renters) have a duty to keep their premises reasonably safe, so that people on the property do not get injured. Not all injuries occurring on the property will lead to liability. A landowner's legal duty varies situationally and depending on state law.

Medical malpractice claims can arise when a health care professional provides treatment below the requisite standard of care, and a patient is thereby injured. Getting a bad treatment result doesn't necessarily mean malpractice occurred.

Defamation in the form of libel or slander refers to an injury to a person's reputation as a result of untrue statements. What a defamation plaintiff must prove varies depending on who the plaintiff is, and how the statement was made. The average person usually needs to prove only that an untrue negative statement was made and that actual financial loss came from it. Celebrities or public figures usually need to prove that the untrue statement was made intentionally or with reckless disregard to its untruth. 

Dog bite responsibilities vary by state; in most cases, dog owners are responsible for bites and other injuries caused by their dog. In some states, strict liability rules exist–the dog owner is liable for dog bite damages even if the dog has never shown any aggression or biting propensity. In other states, "one bite" rules exist–the owners become liable only once there is a reason for them to know their dog is aggressive or prone to biting.

Intentional torts, unlike most other types of personal injury claims, are based not on accidents, but when one person purposely harms or injures another. The victim can file a personal injury lawsuit in civil court and demand compensation for injuries resulting from the attack. Additionally, these cases can involve the added aspect of a criminal case against the perpetrator. 

How Much Money Can You Get from Filing a Personal Injury Case?

“Damages" is legalese for money paid to compensate for losses stemming from an injury or illness, or to punish the defendant for wrongdoing. Damages are paid by the person or company deemed legally responsible for the accident (the defendant or their insurance company). Damages can be ordered by a judge or jury after a verdict in favor of the plaintiff, or received after a negotiated settlement. 

The range of possible settlement values varies, and depends on case-specific factors including property damage, medical bills, lost wages, and more. If you have a wide variety of damages, it's important to track them. The total settlement value includes economic damages, pain and suffering, and punitive damages. An average personal injury settlement ranges from $3,000 to $75,000. Outliers usually involve unique circumstances with punitive or other extraordinary damages. What the responsible party can pay also factors into a settlement; even if the other side is 100 percent responsible and there is a high amount of damages, collecting a judgment can weigh into the average settlement amount.

Damages fall into two basic categories: compensatory and punitive. Compensatory damages compensate plaintiffs for the injury or illness caused by the product—to restore the plaintiff to their pre-injury condition--by attaching a dollar value to each of the bad things that happened to the plaintiff as a result of the product’s use. Compensatory damages provide money deemed "equivalent" to the value of the injury or illness.

There are two categories of compensatory damages: for economic losses and for non-economic losses. Economic losses, sometimes called "special damages" or "monetary losses," refer to injury/illness-related money or property that the plaintiff lost or missed out on. 

  • Medical treatment. A personal injury damages award almost always includes associated medical care costs—reimbursement for treatment already received plus compensation for the estimated cost of future injury-related medical care.
  • Cost of disability. If the injury or illness requires changing your lifestyle, you may be entitled to expenses incurred in making those adjustments.
  • Income. You may be entitled to compensation for the accident's impact on your earnings—not just income already lost but also money you would have been able to make in the future were it not for the accident.
  • Property loss or repair. If anything was damaged because of the accident, you'll likely be entitled to reimbursement for repairs or compensation for the value of the lost property.

Non-economic losses, sometimes called "general damages" or "non-monetary losses," compensate for hard-to-quantify aspects of an injury/illness, such as physical or emotional suffering.

  • General damages aren't available for a pre-existing injury, nor the pain and suffering that a pre-existing injury, by itself, will cause in the future.
  • Pain and suffering. You may be compensated for pain and serious discomfort suffered during the accident and aftermath--and for ongoing pain attributable to the accident.
  • Emotional distress. Usually linked to more serious accidents, emotional distress damages compensate for an injury’s psychological impact—including fear, anxiety, and sleep loss.
  • Loss of enjoyment. When an accident’s injuries prevent enjoying day-to-day pursuits like hobbies, exercise, and other recreational activities, there can be "loss of enjoyment" damages.
  • Loss of consortium. If an injury/illness has a negative impact on a spousal relationship, there may be compensation for loss of consortium, including everything from sexual relations to companionship, emotional support, and loss of affection. A spouse may also have a claim for loss of consortium.

Punitive damages depend not on personal losses but on the other party’s actions. If punitive damages are available, a settlement may be far above the average. Where the defendant's conduct is deemed particularly egregious, a plaintiff may be awarded punitive damages on top of any compensatory damages. It's not unusual for juries to order punitive damages against manufacturers, especially in high-profile cases. Punitive damages are meant to punish the defendant for its conduct and to act as a deterrent. 

Most states have a cap on punitive damage awards. California sets a $250,000 limit on non-economic damages in medical malpractice cases. California has no limit on economic damages, including compensation for past and future medical care, loss of past earnings, and diminished future earning capacity. Many states reduce the damages the doctor in a medical malpractice case must pay by the amount the injured patient received from other sources like insurance. Many states also limit the amount the patient's attorney can charge for a malpractice case.

All states have laws determining recoverable damages if the medical malpractice results in the patient's death. These are called survival statutes and wrongful death statutes.

Survival statutes allow the deceased patient's heirs or estate to recover damages occurring from the initial medical malpractice to the death of the patient. These damages generally include everything allowed in a malpractice suit had the patient survived, except for damages relating to the future, like earning capacity.

Wrongful death statutes compensate the patient's family for their future monetary loss. The calculation is more thorough than a simple projection of future salary–it considers factors like the patient's spending, saving, and working habits. Compensation for the family's loss of companionship or emotional harm is typically not allowed under the wrongful death statutes, although recently some states have allowed such recovery. Depending on the state, not all family members can recover. For example, a state may allow the patient's spouse and children to recover damages, but not the patient's parents (at least in the case of an adult patient).

How Do You Make the Most of Your Personal Injury Claim?

There are a few ways to maximize your potential compensation for a personal injury claim.

Preserve Evidence

  • You maximize your chances to prevail by preserving evidence. A jury decides your case by analyzing evidence. The other party bases any potential settlement offer based on the strength of your case. 
  • Take photos of the accident scene and your immediate injuries. 
  • Collect witnesses’ names and contact information. 
  • Get a copy of any police report.

Get Medical Treatment

  • Have doctors and other health care professionals document your injuries and formulate a treatment plan. This can encourage the other side to offer a higher settlement.
  • Get medical treatment, even if you’re unsure about your injuries’ extent. Follow your medical plan, including any necessary physical therapy and treatment for flashbacks or post-traumatic stress.

Value Your Claim Fully

  • There are several different types of damages.
  • In addition to recovering your out-of-pocket losses, you can claim compensation for loss of regular use of body functions and even emotional damages.

Don’t Be Too Eager

  • Rejecting the first (second, or even third) offer can sometimes maximize your bargaining position.

Explain Why the Offer Is Inadequate

  • When you get an insufficient settlement offer, explain why it’s unacceptable, with reinforcing documentation.

Be Mindful of Future Damages

  • A personal injury can bring immediate and long term losses. Consider future recovery when negotiating a settlement amount.
  • Work with medical professionals to document these losses, which might even comprise the majority of your losses.

Build Your Case

  • Case preparation includes having your attorney conduct depositions or request records. You may need to be seen by various medical professionals. Your attorney might work with other expert witnesses.
  • Having a strong case prepared for trial can pressure the responsible party to offer a fair settlement.

File Your Case Sooner Rather Than Later

  • After an injury occurs, you have time limits to bring your case. After the statute of limitations expires, you may not be able to recover at all. 
  • Also, filing a case lets you gather evidence formally, which can be critical to preserving important evidence. It also lets the other side know that you’re serious about getting a fair recovery.

Stay Off Social Media

  • Everything you say can and will be held against you in court. This applies to what you say on social media.
  • If you’re claiming devastating injuries but your tweets or posts tell a different story, it can ruin your case. Avoid discussing any aspect of your case until a settlement is reached.

Make a Good Impression

  • The other side will make a settlement offer based on what they think a jury might do. Juries make decisions based on what they see and hear. 
  • When in court, be polite and respectful at all times and look your best. This helps convince the other side that a jury will be sympathetic to your case, and can nudge the other side to offer a fair settlement.
Defendants Try a Few Methods to Prevent Your Claim

If you've filed a lawsuit but are partially to blame for your injuries, any compensation will likely be affected. A plaintiff's actions (or inaction) can affect a damages award. In some cases, an injured person's role in causing an accident—or their inaction after being injured—can diminish the amount of available damages.

There are the defenses of comparative negligence, contributory negligence, and assumption of the risk. How a damages award can be affected or barred depends on whether your state follows a "comparative negligence" or "contributory negligence" standard. Similarly, if willingly participating in a dangerous activity and getting hurt, you might be deemed to have “assumed the risk” of injury, and be denied compensation.

Comparative Negligence. If you're even partially at fault for the injury-causing accident, a damage award will usually reflect that; most states have a "comparative negligence" standard linking damages to degree of fault. For example, in a car accident where you're found to be 25% at fault, while the other driver is deemed 75% at fault (via a police report or stipulation via an insurance company investigation), any compensation will likely be reduced by 25%. The vast majority of states follow comparative negligence principles regarding damage awards in personal injury cases. These states also typically fall into one of two groups: "pure comparative negligence" systems and "modified comparative negligence" systems. In the "pure" system, an injured plaintiff can recover damages regardless of their share of fault (meaning a plaintiff who is 90 percent liable can still technically recover 10 percent of their damages from other at-fault parties), while in a "modified" comparative negligence system, an injured plaintiff can recover compensation only if they are no more than 50 percent at fault (or less than 50 percent at fault in some states).

Contributory Negligence. While comparative negligence laws can reduce a victim's compensation when they're partially at fault (in most cases), the concept of contributory negligence is less forgiving. In contributory negligence states, victims who share any degree of fault are usually barred from getting any compensation. So, if you live in a contributory negligence state and you're in a car accident that was only 5% your fault and 95% the fault of another driver, you can't recover any compensation for your damages through a personal injury lawsuit. Only five jurisdictions follow the contributory negligence rule: Alabama, Maryland, North Carolina, Virginia, and the District of Columbia. 

Assumption of Risk. In some personal injury cases, a defendant will argue that the injured person "assumed the risk" of injury by willfully participating in a known dangerous activity. This defense is raised most often in lawsuits stemming from contact sports, paintball-style games, and spectator injuries (i.e. when a foul ball hits a baseball spectator). A successful "assumption of the risk" defense must have the harm suffered relate closely to the inherent risk. So if in a game of basketball at the local gym, you've likely assumed the risk of getting elbowed inadvertently–since that's a common basketball occurrence. A lawsuit over any resulting injuries probably wouldn't fly, because you assumed the risk of injury by playing. However, if you got injured when the backboard broke and fell on you, the defendant couldn't rightly argue that you assumed the risk of that occurrence, because a falling backboard isn't an inherent danger in the game.

After the accident: failure to mitigate damages. Most state laws expect plaintiffs to reasonably try to minimize or "mitigate" the financial impact of the accident’s harm. Failure to get necessary post-accident medical treatment (thus making injuries worse) might significantly reduce a damage award.

Cotchett Pitre and McCarthy has been one of the leading firms in California consistently handling catastrophic and serious personal injury cases. CPM attorneys have extensive experience and success in all aspects of personal injury litigation, including cases and trials involving aviation, pharmaceuticals, premises liability, product liability, motor vehicles, boats, bicycles, dangerous highways, pedestrians, railroads and wrongful death. Serious injury and wrongful death cases require attorneys not only with extensive experience, but also the financial resources to properly prepare the case for trial and see it through to verdict. For general information about CPM’s Personal Injury Litigation practice, see this link.


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