While every case is different and must be thoroughly evaluated on its own facts, there are certain common elements to virtually every personal injury case. The following is intended to provide the reader with a basic understanding of the essential issues involved in a personal injury claim.
 

The first issue in every personal injury case is the question of fault, or what lawyers refer to as liability. Simply stated, the question is who was responsible for the injury. In most cases, an injured victim must prove that his or her injury was caused by another's wrongful act. However, in many jurisdictions, an injured victim may still pursue a claim even if he or she is partly responsible for the injury. This is known as the doctrine of comparative fault. In many states, a person who is partly to blame for their injuries will have their damages reduced by the amount of fault assessed against them. For example, if P was injured because she started to make a right turn on a red light, but D was speeding through the intersection and hit her, both P and D contributed to P's injury. The jury would be asked to determine the full value of P's injuries and damages and then to reduce their award by the percentage of fault they assess against P for her negligence.

In certain instances fault is assumed for public policy reasons. For example, if a manufacturer produces a product that is defective, even if the manufacturer exercised reasonable care when it designed and manufactured the product and was not aware of the defect, in many states the manufacturer will still be held responsible for any foreseeable harm caused by the defective product. The public policy reason is that the manufacturer who profits from the sale of its products should bear the cost of the harm caused by a defect in the product rather than placing the burden on the injured victim to absorb the damage suffered.

Therefore, where someone has been seriously injured in part due to the wrongful act of another, even if the injured victim may be partly responsible, there may still be a basis to pursue a valid claim.
 

In most jurisdictions the claim does not have to be serious to recover some compensation, however, absent a serious injury the claim will likely be low valued by the insurance company. In many jurisdictions that have adopted a no fault insurance system before one can pursue a lawsuit against another he or she must first prove that the injury suffered is serious and permanent.

No matter what the law is in any given state, the reality today is that absent a serious injury, insurance companies, manufacturers, government and other defendants in personal injury cases are not likely to make a significant offer to settle and are perfectly willing to fight the matter in court. For this reason, without a serious injury one is usually wiser to settle sooner than later before incurring substantial expenses.

Before one can determine what is a reasonable compensation for the harm the full extent of the injury suffered must be adequately evaluated and documented. No case should be resolved until the medical condition has reached a point where the physicians have determined that the maximum medical cure has been provided and that the patient's condition is now permanent and stationary. That means, there is nothing more that can be done that will cure the patient any further. It is very important that the medical expert explain what happened to the person medically, how the incident caused the harm, what permanent injury will be suffered and the cost of future medical care reasonably to be expected as a result of the harm.

Once the medical condition has become permanent and stationary then the damages can be assessed. There are essentially two types of damages recoverable in a personal injury case; economic damages, and non-economic damages. Economic damages include 1) medical expenses incurred to date and the future medical expenses likely to be incurred as a result of the harm; 2) loss of income suffered to date and loss of the capacity to earn the same or more income in the future; 3) cost of special services to assist with activities normally performed by the injured victim; 4) the cost of vocational rehabilitation to be retrained to perform work with the permanent disability; and 5) damage to personal property such as a vehicle.

Non-economic damages include compensation for 1) pain and suffering to date and into the future; 2) loss of the enjoyment of normal life's activities; and 3) emotional distress.

The economic damages are easier to prove. Medical expenses are usually obtained from the medical care provider, or health insurance carrier. Loss of income can be documented by the employer. Future medical expenses can be addressed by a medical expert. Future loss of income is usually determined by an expert vocational rehabilitation consultant and an economist. Both sides, the injured victim, and the insurance company typically retain expert witnesses to help with these evaluations.

The most difficult damages to assess are the non-economic damages. There is no magic formula to calculate the loss of a limb or the loss of use of one's legs, or for damage to one's ability to think. Lawyers study hundreds of cases and research what juries have awarded in other similar cases for these types of damages. With this data lawyers and insurance companies engage in a process of artful negotiations to reach a settlement. If they are unable to settle there are several options.

In a serious traumatic brain injury or spinal cord injury case, the future patient care needs is critical. Our office always retains the services of an expert Life Care Planner who can address the needs and costs of future care such as assisted living, urinary and bowel care, transportation needs, and medical care such as treatment for infections, surgeries and psychological care.

In most circumstances, if you have a good case, you were clearly not at fault and you have suffered serious injury, the case will likely settle if you have engaged the assistance of an experienced personal injury lawyer. However, if the case does not settle, the ultimate resolution is usually obtained by filing a lawsuit and going to trial with a jury or, in limited circumstances, with a judge only. Today, there are some other options that are referred to as alternative dispute resolution or ADR. ADR includes arbitration, mediation and settlement conference.

Arbitration is similar to a trial but much less formal and much shorter in time. This process is usually entered into by agreement of all parties to the claim. The parties will select a neutral arbitrator, usually a lawyer or retired judge, who will hear abbreviated evidence and make a determination. Arbitration can be binding and non-binding. If the parties agree to binding arbitration, the arbiter's decision is final and there will be no appeal. If the arbitration is non-binding, the parties can accept the findings of the arbiter or either party can proceed with trial if the findings are unacceptable.

Mediation is less formal than arbitration. Mediation involves an agreement by the parties to select a neutral person to help facilitate a settlement. This person has no power to force the parties to settle, but is usually very skilled in helping to negotiate a settlement.

A settlement conference with a judge is very similar to mediation. Many courts today will force the parties to attend a mandatory settlement conference in order to help resolve the case. Often, it is easier to settle when the court orders the parties to attend a settlement conference. This way no side looses face by suggesting a settlement conference. The parties are simply ordered by the judge to attend the conference. If the case does not settle, then it will proceed to trial.

These questions and answers are not intended to cover every type of personal injury case or claim. For example, work injuries are usually covered under worker compensation systems that do not permit recovery of the same type of damages discussed in these answers. In some states, non-economic damages may be limited by state law. For example California limits recovery of non-economic damages in medical malpractice cases. These answers are simply intended to give the reader some understanding of what is involved in the majority of personal injury claims. A competent lawyer or legal adviser should be consulted to determine what rights and remedies you may have given the specific facts of your case.
 

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