The Fundamentals of a Personal Injury Case
If you are injured because someone was at fault, you may be awarded compensation for your injuries. The amount of your award will depend on the nature of the harm that you suffered and the nature of the person’s act. This is the basis of a Personal Injury Case, which involves such things as auto accidents, slip and falls, and even assaults. The law recognizes that people have a duty to one another to act reasonably. If that duty is breached because of someone’s negligence or intentional act, and that act causes a harm that is foreseeable, then an award or compensation for that harm should be required. However, an award is not always guaranteed. There are many legal hurdles that you have to overcome.
Statute of Limitations.
One of the most important things that you have to consider is that there is a time limitation in which you may file a lawsuit against the other party. In New Jersey, the statute of limitation is two (2) years from the date of the incident or the date the harm arose. This means you must file your lawsuit with the Court within two years or you will have lost the legal ability to file such a lawsuit. Each state has its own limitations period. New York’s statute of limitations is three (3) years.
If the person or entity who injured you is part of a governmental agency, such as a state or city bus driver, the law also imposes an additional requirement that you notify the governmental agency with a “Notice of Tort Claim,” within ninety (90) days from date of the incident or when the harm arose.
In short, it is always best to seek competent legal representation to start your lawsuit and claim as soon as possible so that you are not time barred from making the claim.
Evidence and Documentation.
Often times, the legal process can be seen as a war between competing interests where evidence serves as the ammunition that is to be weighed against each other. As a result, your claim must be supported by ample evidence and many documents. Documents include such things as pictures, witness statements, police reports, medical records, and employment records.
In additional to official records, it is a good idea to keep a journal and write down your daily difficulties as a result of your injury. Keep a diary of what you did and what you could not do, your many doctors’ appointments, pain and suffering.
Stay organized. Keep your records in a chronological order and share as much information as you have with your attorney. Remember always that this is your case and your claim. Factually, you know more about this case than anybody else. Make sure you tell your story to your attorney. Tell it many times until you are confident he knows everything that you know.
You have to have enough evidence and documentation to show that the other party was at fault. Who has the liability? Photographs, police reports and witness testimony are keys. New Jersey is classified as a contributory negligence state where you cannot recover any award for damages if your liability or your fault was greater than the person you are claiming against. In the case of a car accident, the court may not award you any damages if the evidence shows that your excessive speed was over 50% for the reason for the accident. Each state is different. For example, New York is known as a pure comparative negligence state where you can theoretically recover an award for damages even if you were 99% at fault. You will be awarded the 1% of your damages if the other party is 1% liable. However, the down side is that you may be responsible for 99% of the other person’s damages.
As mentioned above, evidence and documentation is important to show liability. Showing damages is equally important. That requires your active participation in medical treatment and rehabilitation. It is important that all treatments and injuries are well documented.
In the case of auto accidents, most drivers will have some form of Personal Injury Protection (PIP) coverage in their auto insurance policy. This PIP policy may be used for your initial emergency room visit, and ongoing treatment and rehabilitation. If the injury did not involve an auto accident or you do not have PIP coverage, then you may use your separate health insurance to treat for the injury. The health insurance company may or may not request a lien on your injury claim in the event you recover some award from the other party. If you do not have any health insurance or any insurance at all, a treating doctor may agree to put a lien on your injury claim in the event you recover some award from the other party. Your attorney will likely work with that treating doctor to negotiate a lien.
In addition to treating doctors, your attorney may also suggest that you hire expert witnesses to assist with the claims. Expert witnesses are third parties, doctors, professionals, and others, who are recognized by the court as being experts in their particular field and who can assist the court in reaching an ultimate outcome. For example, a doctor who specializes in back surgeries may testify that based upon his expertise, the back surgery that you suffered will result in additional surgeries or permanent disability and discomfort for the rest of your life. An engineering expert may testify that the speed that the other driver was traveling contributed to or was the real cause of the accident that you suffered. A property management expert may testify that the failure to fully remove the snow from the walkway contributed or caused your fall on the pavement. The real value of these experts is outside of the courtroom. The experts’ reports of what they will testify at trial maybe provided to the other party and may be used as a means of encouraging the other party to settle.
Certificate of Permanency.
In the case of auto accidents, the law also imposes another hurdle. Because there are so many frivolous lawsuits involving auto accident cases, the law requires that a treating doctor initially certify that an injury is permanent in nature before you can bring a personal injury lawsuit. This is called a limitation on lawsuit option in your auto insurance policy. If you do not have such an option selected in your auto insurance policy, this certificate of permanency will not be necessary.
The goal for any victim of personal injury is to try to settle a claim. Lawsuits and trials are time consuming, burdensome and may result in outcomes that are unexpected and not desired. Most personal injury matters will settle before and even after a lawsuit is filed. It is the rare case that a claim will every reach a full trial.
The claim process is somewhat complicated but needs some explanation.
At first, there is a Complaint that explains the who, what, where, when, why, and how you were injured. It demands monetary damages against the other party. That Complaint is filed with the court and a docket number in New Jersey or index number in New York is assigned. After the Complaint is served on the other party, an Answer will be filed with the Court. That Answer will essentially deny the allegations in the Complaint and set forth separate defenses of the other party. The other party may also bring a Counter-Complaint, wherein the initial complainant (you) would need to Answer the Counter-Complaint.
Once all these documents are filed, there is a long period of discovery in the case. The discovery period may take approximately 300 days or more. Discovery traditionally involves the exchange of all relevant information, evidence and documents, between the two parties that support their position. Discovery includes interrogatories, document requests, requests for admissions, and depositions. Interrogatories are written questions that must be answered by both parties. There are standardized questions in the court rules, but the parties may also ask supplemental questions as part of the discovery. Document requests involve the exchange of all medical records, witness statements, accident reports, police report or anything that is documented and deemed relevant to the case. Requests for admissions are separate questions asking the other party to admit or deny a relevant fact of the case. Lastly, depositions are in-person interviews of the parties by the opposing attorney. The interview is in the form of questions and answers and is recorded by a court reporter. The record of the interview, along with the other discovery items, is often used to challenge the testimony and credibility of a person who may later change their statement during a trial.
After the discovery is complete, the court may order that the parties meet with a mediator or arbitrator to determine if a settlement may be reached. A mediator serves to help the parties reach a settlement. An arbitrator, however, will make a determination of the case and may also decide a monetary value to the case. The arbitrator’s award is not legally binding unless the parties agree to accept that determination.
If the parties do not agree to settle, then the matter will proceed to trial.
Finally, we come to an award. You should be compensated for the damage that you suffered. The amount of the award will vary. What harm did you suffer? What was you comparative negligence if any? Does society have an interest in protecting others from this type of harm? Was the act of the responsible party egregious, intentional or willfully?
Damages may be awarded in the form of compensatory damages. What was your out of pocket expenses, loss of income, medical expense, and other financial impact?
Damages may be awarded for pain and suffering. Were you confined to a hospilital and undergoing several surgeries as a result of your harm?
Damages may be awarded future consequences, for a life care plan. Will you require on going surgery, treatment, care for the rest of your life?
Damages may be awarded, in the rare case, for punitive damages. Was the defendant’s act so egregious that punitive damages ought to be awarded to punish the defendant for his actions.
The arguments for damages are many and may also extend to your spouse. Many personal injury cases involve a loss of consortium claim by the spouse who would allege that she or he no longer enjoys the same level of company and support of the injured person.
Picking an Attorney.
There are many attorneys who practice in Personal Injury Cases. There are many law firms that only do personal injury cases and handle hundreds of cases a year. Some attorneys, however, handle one case a year with an equal or greater level of attention and success. Picking the right attorney is very important to the advancement of your claim and your rights.
An attorney’s record of success and competence is important. However, your comfort with that attorney and his service to you is equally important. Your ability to work with that attorney and your mutually trust, may actually be more important than any other factor.
The attorneys at The Choi Law Group, LLC have been honored to represent the interests of our clients for over 30 years. We would be happy to meet with you and discuss your Personal Injury Case.