Personal Injury Civil Suits: Everything You Need To Know About Taking Legal Action Over Injuries

Basics of a Personal Injury Law Claim

Considering taking legal action after an injury? When you have been injured, having suffered physical harm or financial loss resulting from the reckless behavior or wrongful conduct of another - the process of taking civil action in pursuit of compensation falls under what is known as a tort action. The tort laws define the process on how private plaintiffs who seek recovery (usually financial) is handled. As opposed to criminal cases, these legal disputes involve a private individual represented by their lawyer initiating legal action in pursuit justice.

We'll be focusing on non-economic injuries here, personal injury cases defined by the damage to a person’s body, mind or emotions, as opposed to damage or injury to property. After you have suffered harm the legal responsibility for this damage may be applied to a person, corporation and/or a government agency - and the doctrine of negligence is generally used to determine responsibility in tort law. Legal and binding proceedings brought in a personal injury trial are handled in civil court and may or may not require legal representation - while not strictly required, an experienced tort lawyer on your side is crucial for reasons we'll explain.

The basic process involves the stages below. These steps can vary based on the type of lawsuit or venue - the state laws can vary widely with regards to the tort process.

General Steps in A Personal Injury Civil Action

  1. Find a Lawyer: Plaintiff (Injured Party) consults with a personal injury law specialist (Who Reviews Legal Eligibility). Initial review of the legal merits of the complaint and decision to retain an attorney. No client attorney relationship exists upon initial review of a cases legal merits.
  2. Client-Attorney Relationship Established: If after reviewing the attorney feels the complaint has legal merit, representation documents are provided how the attorney fees work (usually contingency), establishing the attorney-client relationship and initiating representation. The process of collecting and reviewing in more detail the circumstances surrounding the tort event, medical records, and documentation of economic loss begins. (Evidence collection and review).
  3. Informal Settlement Negotiations: Attorney considers Demand Letter to explore possibility of pre-trial negotiated settlement.
  4. Legal Action Initiated: Official complaints and motions filed with the court
  5. Pre-Trial Litigation: The pre-trial process simply discusses the legal maneuvering which occurs in this early stage and includes everything from discovery, pre-trial settlement conferences and various motions by the lawyers involved before trial begins.
  6. Discovery: Legal discovery and determination of facts is a pre-trial civil procedure of gathering evidence from other parties.
  7. Resolution Before Trial: A settlement conference is commonly held to determine if in light of uncovered evidence, facts revealed during discovery or other information pertinent to the legal action - continued negotiating for the possibility of settling before going to trial. Litigants may seek settlement, mediation or a summary judgement depending on circumstances.
  8. Trial: When the filed complaint makes it to civil trial court and the lawsuit is brought before judge or jury seeking a decision in the dispute. The plaintiff's counsel and defendant's legal team make their arguments in an attempt to establish the facts and get a court ruling. The authority to collect compensation in the form of financial damages awarded. Requests to reconsider the decision and jury verdicts are heard.
  9. Appeal of Judgement: The losing party may appeal the decision of the trial court.
  10. Compensation: Winning plaintiffs awarded financial compensation in court are entitled to collect compensation after litigation ends. The collection of the awarded judgement is then executed as defined by the decision (after appeals process concludes).

The proceedings can be lengthy, and the personal injury law process can seem like an eternity to the seriously injured person who is desperately seeking justice and financial relief for mounting medical bills, lost income, and other losses caused by the event in question. The majority of personal injury lawsuits reach settlement before a trial is necessary - a faster resolution can mean a much needed settlement check in the hands of the client who needs it.

In spite of the majority of lawsuits settling before a trial even begins, you should be prepared for the entire civil litigation process. Your legal counsel will be able to outline the basics of what to expect when the federal and state tort laws are applied to your circumstances.

 

discussing tort claim

Meeting with an Attorney to Discuss Your Case

The Consultation: The first step in a personal injury claim is to contact an attorney that specializes in personal injury law matters relating to the circumstances of your case. In most instances the initial case review for a client is free. Cases selected for representation are generally offered representation on a contingency basis. Interviewing multiple attorneys is sensible, however choosing your legal representation quickly is beneficial for reasons beyond this guide in building your case if it proceeds. An initial interview commonly consists of detailed questions about you and the injury event in question. Common questions include asking about your medical records, medical history, insurance policies, the parties involved and circumstances surrounding what happened. Be truthful, and prepared to share share as much as you can. If it is considered a good fit by both parties (client & attorney) then how attorney representation and fees work should be explained and a representation agreement made available. Clients should also ask about expected timelines and milestones in tort cases similar to their own.

Attorney Considers Case: They may refer your case to another lawyer. This is common and most likely has to with a lawyer's current case load or a potential conflict of interest. The client may be better served by an legal expert with more experience in the particular nature of your case.

Attorney Refers Case: If you have been referred to another law firm, make sure it is a good fit. Make sure it feels right for you - it's your representation after all.

Attorney Declines Case: They may decline your case. This decision isn't always based on the legal merits of your potential injury case.

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basic personal injury claim

Personal Injury Claim Type Basics

While largely an arbitrary grouping, the following types of cases can have specialized considerations for your personal injury law claims. In some cases below your lawyers experience and familiarity with the impact of the type of injuries sustained - with a history of working with people facing similar harm - can be just as important as the special legal issues which are likely to arise.

Traumatic Brain Injuries: Find an attorney for brain injuries familiar with the impact TBI has on victims and the resulting challenges they face living with the conditions. Insight into the true lifetime impact and the devastating emotional effects for victims and the family of the injured party is as important in the fight for recovery as skillful application of the tort laws.

Motor Vehicle Accidents: Across the nation state rules defining how personal injury claims in a car accident are to be handled vary dramatically. Considerations such as whether you live in an at-fault state, a no fault state, which negligence scheme is recognized, knowing the traffic statutes, and knowing the tricks the insurance companies use to reduce what they have to pay are only the beginning of why a car accident law specialist is so important to your injury claim. Having counsel who knows the tort laws specific to vehicle accident injuries is highly recommended to making sure you get paid what you may be entitled.

Medical Malpractice: Many states have enacted tort reform laws limiting recoverable damages in medical malpractice cases. Your representation needs to be familiar with the procedural requirements, deadlines and strict deadlines in order to navigate the malpractice laws in the era of tort reform.

Hurt by Defective Products: When the proximate cause of your injuries can be linked to a defective product - an experienced product liability expert may be the difference between prevailing in court when you take legal action or being defeated and left empty handed. A legal team skilled in investigation may be required to uncover how the defective part was ultimately responsible for your injuries.

Adverse Effects of Defective Drugs: Suing a pharmaceutical company over adverse effect injuries caused by defective drugs may be as simple as adding your claim to an existing multi-district litigation or determining to file an individual lawsuit if the harm you suffered has legal merit. A dangerous drug claims lawyer with experience fighting on behalf of clients in similar drug-related injury cases will make sure you claim what you may be entitled.

Injured in a Slip & Fall: When you fall and hurt yourself a premises liability lawyer will be able to help you determine if in fact a party may be determined legally liable under the law. Important to tort actions of this type is determining if a property owner failed to keep the property reasonably safe to prevent injury. Responsibility, proving fault, and the recognized negligence schemes in the state must be considered. An examination of the circumstances and how state duty of care rules play an important role in slip and fall claims.

Catastrophic Injuries: Plaintiffs who suffer life-long disabling injuries such as paralysis, limb amputation, disfiguring wounds, or other serious physical harm often have extensive medical care needs the civil action seeks to support. Lawyers for the catastrophically injured must be able to use the rules of tort recovery to force the culpable to compensate for a lifetime of incapacity.

 

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client-attorney basics

Overview of the Client-Attorney Process

Attorney Fees: Generally, most injury attorneys offer clients a free initial review of tort claims. The injuries sustained by the potential client and circumstances of the event in question and what parties may be liable are considered in this initial qualification. Injury cases with legal merit generally result in a contingency agreement between client and selected representation. Meaning the client will pay nothing out of pocket initially to for the attorney for services - instead the law firm will receive a percentage of any money recovered in either a settlement or court awarded compensation won on behalf of the client. If the case does not win financial recovery a contingency agreement means the attorney receives no fees.

What does it cost to get a lawyer? The costs of fighting a lawsuit are commonly more than the injured party can reasonably be expected to pay which is why contingency fee arrangements are so common in personal injury representation. A large sum of money is usually at stake in an injury lawsuit, even so, what the lawyer ultimately receives must to cover the costs of completing the suit or they lose even after prevailing in court. A 33% contingency fee of compensation recovered is common standard used. Fee arrangements can vary, and the likelihood of a case settling before trial, the potential amount of financial recovery legally in play, and expected costs to and probability of success are all factors in whether a lawyer will agree to take your case.

Written Fee Agreement: When initiating the attorney-client relationship you will be provided a written fee agreement which outlines the contingency fee percentage. Any adjusted rate schemes, charges, or fees are normally required to be provided in writing. Review this transaction agreement carefully and understand the terms to understand what representation will cost you.

Attorney-Client Relationship: Be truthful with your legal team. In return, your lawyer should be able to update you on the status of your case and communicate with you in a timely manner. A lawyer has a professional responsibility to uphold the legal process, avoid ethical conflicts, and represent the client honestly.

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settlements and judgments

Settlements & Judgments
(Getting Paid When You Prevail)

How Settlements Work: At any time in civil litigation the parties can agree to a negotiated settlement. This is the most likely outcome of any civil case. The compensation usually takes one of two forms: Lump Sum or Structured Settlement.


  • Lump Sum - The defendant is required to pay the entire amount awarded in one payment.
  • Structured Settlement - The plaintiff will receive the full amount awarded over an extended period in the form of monthly, quarterly or yearly payments from the party held responsible.

This is just a basic explanation on how settlements are handled. For a more in-depth look check out our complete guide on legal compensation.

Collection of Judgments: Unlike a settlement where a check is sent to the plaintiff’s attorney, a judgement will take longer (average 1-3 years) to collect due to the appeals process and time for the initial proceedings to resolve. A judgment which awards damages is subject to a review process in which the decision is either upheld, reversed or remanded. During this time no payments are made to the plaintiff and legal and/or medical expenses potentially continue to rise. As you can imagine this puts tremendous pressure on the injured party to settle a claim and avoid a court awarded judgment when possible.

This is the reason such a high percentage of personal injury cases are settled out-of-court. To finally collect a Judgement award the defendant must end the appeals process and have the ability to pay.

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civil legal claims

Lawsuit Qualifications: Claim Requirements

When reviewing the legal merits of your lawsuit claim some of the factors a lawyer will consider are:

  1. What Happened: The exact nature of the claim
  2. Economic: Potential settlement vs overall costs to litigate. Do the economics of the suit make sense all things considered.
  3. Facts of Case: How convincing is the evidence to make the case (Preponderance of Evidence) and the probability of prevailing.
  4. Client’s reason for lawsuit: Whether seeking to initiate legal action seeking restitution, an injunction, declaratory judgement, political reasons, retribution, money for financial need.
  5. Client Assessment: Sound judgement and rationality of the plaintiff is a consideration - unfortunately some people lie, others may not be behaving rationally or be of sound mind.
  6. Opponent: The quality and nature of the defendant is a consideration and a trial lawyer needs to be ready to fight if the alleged responsible party has the resources and the will to force a prolonged dispute.
  7. Time Investment: The potential time required to see an injury lawsuit to its completion based on the circumstances and details of the case is a consideration. Not every lawyer has the resources to see a case through trial and prevail.
  8. Recovery Potential: What parties may be held liable and the defendant’s ability to pay damages awarded if awarded is a consideration for claim consideration - but not always. Holding the responsible party accountable is sometimes payment enough - you deserve an attorney who takes your case personal.

After the initial review of your potential lawsuit if the attorney decides to take your case. A representation agreement will be presented to you.  Review it carefully and make sure it meets your approval.  Once the agreement has been signed your attorney will move to take your case to the next stage of the process.

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Important Tort Laws & Resources By State

You can contact your State for more information on employment laws in your state.

  • Federal Motor Carrier Safety Administration (FMCSA)
  • Judicial Council of California Civil Jury Instructions (CACI)
  • Federal Tort Claims Act (FTCA)
  • State Laws & Regulations Affecting Highway-Rail Crossings: Federal Railroad Administration (DOT)
  • U.S. Code Civil Remedy For Personal Injuries (GPO)
  • Tort Litigation: U.S. Attorneys Manual (DOJ)
State Regulations & Litigation Resources:

State Law Information: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida (Torts), Florida (Negligence), Georgia, Hawaii, Idaho Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,, Minnesota, Mississippi, Missouri, Montana, Nebraska Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming

 

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