Personal Injury, General - An Overview
If you have suffered a personal injury, you may be entitled to compensation for your injury. Legal responsibility, called "liability," revolves around the simple fact that most injuries happen because someone was careless or "negligent." Even if you believe you may have partly caused your own injury, in most states you can still get some compensation from anyone else who was also careless and partly responsible for your injury.
There are several factors that affect the potential success and value of a personal injury claim. Such factors include the ability to prove the fault of another for your injury and the nature and extent of your injuries. If you suspect you may have a legal claim, you should contact an attorney for an evaluation of your case. Personal injury attorneys are experienced with cases like yours, and can tell you at the outset whether it is worthwhile to pursue legal action. If you are unlikely to prevail, your attorney will tell you so, and you will not need to incur the time and expense of pursuing an unpromising claim.
In pursuing personal injury claims, attorneys work with investigators and experts in specialized areas, who can skillfully investigate the technical and medical aspects of your case. More importantly, an attorney can work through the maze of paperwork necessary to resolve your claim so that you can get on with your life.
Steps You Can Take Now
There are several steps you can take to increase your chances of recovery, and increase your potential overall recovery, in a personal injury case, even before you meet with an attorney. Such steps include:
writing down as much as you can about the accident or injury itself, your injuries and any other losses (such as wages) you've suffered as a result of the accident
making notes of conversations that you have with people involved in the accident or the injury claim
preserving evidence of who caused the accident and what damage was done by collecting physical evidence and taking photographs
locating people who witnessed the accident and who might be able to help you prove your case
notifying anyone you think might be responsible for your injuries of your intention to file a claim for your injuries, especially if a government agency or employee may be involved.
How Much is Your Personal Injury Claim Worth?
Determining how much certain injuries are worth is a critical aspect of any injury claim. It is also the part of a claim about which it is most difficult to generalize; the amount depends on your very particular circumstances. A personal injury attorney can be more objective about your case than you can, and will not make a rash decision. Where you may be tempted, for instance, to go for a quick payout, your attorney may counsel you that it is in your best interests to wait for a more appropriate offer. Lawyers are used to working with insurance companies, and will not be confused by their tactics or feel pressured to settle for an unsatisfactory amount. Personal injury attorneys work hard to reach the best settlements for their clients, as early in the litigation process as possible. If a trial becomes necessary, a personal injury lawyer can zealously represent you in court and work toward achieving the best possible jury verdict in your favor.
In assessing the value of your claim, an attorney will consider everything you have suffered as a result of your injury. Usually, a person who is liable for an injury must pay the injured person for:
medical care and related expenses
income lost because of the accident, because of time spent unable to work or undergoing treatment for injuries
permanent physical disability or disfigurement
loss of family, social and educational experiences, including missed school or training, vacation or recreation, or a special event
emotional damages, such as stress, embarrassment, depression or strains on family relationships for example, the inability to take care of children, anxiety over the effects of an accident on an unborn child, or interference with sexual relations, and
Also, the following guidelines usually apply:
The more painful the injury, the higher the potential damages you may recover
The more invasive and long lasting the medical treatment, the higher potential damages you may recover
The more obvious the medical evidence of the injury, the higher potential damages you may recover
The longer the recovery period, the higher potential damages you may recover
The more serious and visible any permanent effect of the injury, the higher potential damages you may recover.
How Will Fault for My Injury Be Determined?
The extent of every party's fault in causing your injury is the most important factor affecting how much you are likely to receive for your personal injury claim. Determining fault for an accident is not an exact science. But in most claims, your attorney will at least have a good idea whether another person was entirely at fault, and the extent, if any, that you were at fault. Whatever that rough percentage of your fault might be 10%, 50%, 75% is the amount by which the damages total will be reduced to arrive at a final settlement or award figure.
Various rules of fault apply in different types of personal injury actions. Here are some examples of liability rules in different types of actions:
Suppose you are injured in a store can you recover damages from the store? It depends on the facts of the case. Store owners must keep their premises reasonably safe for customers, inspecting and discovering any dangerous conditions. They also must keep all aisles clear and properly maintained. A judge or jury will look at whether the owner was aware of the condition that caused your injury and how long it had existed. A judge or jury will also look at your conduct in relation to the condition.
If you've been injured by a dangerous consumer product, you may have an easier time recovering compensation for your injuries than those who are injured in other ways. "Product liability" the legal rules concerning who is responsible for defective or dangerous products is different from ordinary injury liability law, and this set of rules sometimes makes it easier for an injured person to recover damages. For several reasons, the law has developed a doctrine known as "strict liability," that allows a person injured by a defective or unexpectedly dangerous product to recover compensation from the maker or seller of the product without showing that the manufacturer or seller was actually negligent.
Many thousands of people are injured each year some very seriously when they slip or trip and fall on a dangerous floor, a flight of stairs or a rough patch of ground. There is no precise way to determine when someone else is legally responsible for something on which you slip or trip. Each case turns on whether the property owner acted carefully so that slipping or tripping was not likely to happen and whether you were careless in not seeing or avoiding the thing that caused you to fall.
Automobile accident claims are by far the most common type of personal injury case in our court system today. Except in those states where legislation has been passed doing away with fault as an issue (no-fault laws), these cases are litigated under general negligence principles. The injured plaintiff is required to prove that the defendant was negligent, that the negligence caused the accident, and that the accident caused the plaintiff's injuries. As with other types of accidents, figuring out who is at fault in a traffic accident is a matter of deciding who was negligent. In many cases your instincts will tell you that a driver, cyclist or pedestrian acted carelessly, but not what rule or rules that person violated. Your case can be strengthened if you find some "official" support for your conclusion. Your attorney will look to a number of sources to help you determine who was at fault for your accident, such as police reports, state traffic laws, and witnesses.
There are many different types of personal injury actions, and several theories of fault that may apply in a given case. Discussing your case with a personal injury attorney is the best way to have a thorough evaluation of the likelihood of success if you were to bring a claim for your injuries, and of the potential value of your case. In light of the deadlines imposed under state and federal law for the filing of personal injury actions, meeting with an attorney sooner rather than later if you think you might have a claim is always recommended.
Cases arising out of automobile accidents are by far the most common type of personal injury case in our court system today. This is not surprising, given that every ten seconds, someone in the United States is involved in a car accident, according to the National Highway Traffic Safety Administration (NHTSA). Except in those states where legislation eliminating fault as an issue has been passed (no-fault laws), these cases are typically governed by the law of negligence. Generally, people who operate automobiles must exercise "reasonable care under the circumstances." A failure to use reasonable care is considered negligence. A person who negligently operates a vehicle may be required to pay for any damages, either to a person or property, caused by his or her negligence. The injured party, known as the plaintiff, is required to prove that the defendant was negligent, that the negligence caused the accident, and that the accident caused the plaintiff's injuries.
As with other types of accidents, figuring out who is at fault in a traffic accident is a matter of deciding who was negligent. In many cases, your instincts will tell you that a driver, cyclist or pedestrian acted carelessly, but not what rule or rules that person violated. An attorney will look to a number of sources to help you determine who was at fault for your accident, such as police reports, state traffic laws, and witnesses. Courts look to a number of factors in determining whether a driver was negligent. Some of these factors include, but are not limited to, the following:
Disobeying traffic signs or signals
Failing to signal while turning
Driving above or below the posted speed limit
Disregarding weather or traffic conditions
Failing to drive on the right side of the road
Driving under the influence of drugs or alcohol
Other Causes of Automobile Accidents
Reckless Driving: A driver may also be liable for an accident due to his or her intentional or reckless conduct. A driver who is reckless is one who drives unsafely, with "willful and wanton disregard" for the probability that such driving may cause an accident. A driver could be found reckless, for example, if he or she drives in a threatening or harassing manner out of "road rage" and causes an accident. (Criminal charges will also stem from such behavior.) Road rage is defined as "an assault with a motor vehicle or other dangerous weapon by the operator or passenger(s) of another motor vehicle or an assault precipitated by an incident that occurred on a roadway."
Statistics compiled in 1997 by NHTSA and the American Automobile Association showed that almost 13,000 people had been injured or killed since 1990 in crashes caused by aggressive driving. According to a NHTSA survey, more than 60 percent of drivers consider unsafe driving by others, including speeding, a major personal threat to themselves and their families. About 30 percent of respondents said they felt their safety was threatened in the last month, while 67 percent felt this threat during the last year.
Traffic safety and law enforcement organizations are renewing efforts to identify and penalize aggressive drivers: those who speed, tailgate, zip from lane to lane, flash headlights in frustration, and engage in other dangerous driving practices. The NHTSA defines aggressive driving as a progression of unlawful driving actions such as:
Speeding: exceeding the posted limit or driving too fast for conditions;
Improper or excessive lane changing: failing to signal intent, failing to see that movement can be made safely, or
Improper passing: failing to signal intent, using an emergency lane to pass, or passing on the shoulder.
If you are confronted by an aggressive driver, the NHTSA recommends that you take the following actions:
Get out of the way: First and foremost, make every attempt to get out of his or her way.
Put your pride aside: Do not challenge the aggressive driver by speeding up or attempting to hold your own in your travel lane.
Avoid eye contact: Eye contact can sometimes enrage an aggressive driver.
Gestures: Ignore gestures and refuse to return them.
Report serious aggressive driving: You or a passenger may call the police. But, if you use a cell phone, pull over to a safe location.
Every 30 minutes, someone in this country dies in an alcohol-related crash. Last year alone, over one million people were injured in alcohol-related traffic crashes. In a lawsuit arising from a drunk driving accident, in addition to the intoxicated driver being held liable for the injuries he or she caused, a bar or social host may be liable for damages if they served an obviously intoxicated guest, who then drove and caused an accident. The fact that the person who served the intoxicated driver alcohol may be held liable does not relieve the intoxicated driver of liability, however. Because attorneys are aware of the many laws governing legal responsibility, an attorney can help you identify who might be held responsible for your injuries, including people or businesses you might not have considered.
Accidents that are Not Caused by the Drivers Involved
In certain cases, accidents are caused by factors unrelated to the conduct of any particular driver. For example, an automobile accident may occur due to a defect in someone's automobile. In such a case, an automobile manufacturer or supplier may be responsible for injuries caused by a defect in the automobile under the law of product liability. A product liability suit is a lawsuit brought against the seller of a product for selling a defective product that caused physical injury to a consumer or user. If a manufacturer of a product creates a defective product either in designing, manufacturing, or labeling the product the manufacturer is liable for any injuries the product causes, regardless of whether the manufacturer was negligent.
Another example of a situation where a driver may not be at fault for an accident is where a mechanic fails to properly repair a vehicle, and the failure causes an accident. In such a case, the person who improperly repaired the automobile, and his employer, may be liable for the injuries sustained under the theory of negligence.
Other factors, such as poorly maintained roads and malfunctioning traffic control signals can contribute to cause an accident as well. Improper design, maintenance, construction, signage, lighting or other highway defects, including poorly placed trees and utility poles, can also cause serious accidents. In cases such as this, government entities may be potential defendants. Special rules apply to claims and lawsuits brought against governmental bodies, however, and good legal advice is critical to preserving and winning such claims.
In all of the above cases, it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and have physicians or other expert witnesses thoroughly evaluate any injuries. Because an attorney can best help you accomplish all of these things, if you have been involved in an automobile accident, it is strongly recommended that you contact an attorney to evaluate your case as soon as possible.
FAQs on Divorce
(Frequently Asked Questions)
(Q) How long will my divorce take?
Answer: The duration of a divorce action or the period of time between retaining an attorney and actually being divorced depends on several variables. A case will take more time to resolve depending upon the number of issues in a case, and the nature and complexities of each issue. If custody or the amount and duration of spousal and/or child support are issues, it can prolong the litigation or resolution process if the parties cannot reach a fair resolution in an expedited manner. The extent of the assets and determining marital vs. separate property can also make resolution more tedious. Another factor in the length of the process is the cooperation and reasonableness of the parties. If the parties and counsel are reasonable in reaching a fair resolution of each outstanding issue this can assist a great deal in the total amount of time it requires to settle or resolve the case globally.
(Q) How much will my divorce cost?
Answer: The cost relies heavily on the number of issues to be resolved, the complexity of the issues and the ability of the parties, the attorneys, and in some cases, the Court, can work cooperatively to arrive at a fair and reasonable settlement of all outstanding issues. Most attorneys charge on an hourly basis with an advance initial retainer fee due at the time the firm is retained. All tasks performed by an attorney are recorded and billed to the client on an hourly basis usually in increments of six (6) minutes.
(Q) Will I be required to go to Court?
Answer: Every matter is unique. However, there are certainly many cases that are resolved out of Court. Parties and their counsel are free to negotiate the terms of a Separation Agreement or Stipulation resolving all outstanding issues arising out of a marriage. In those cases, the uncontested divorce documents may be submitted to the Court for signature without the parties ever having to appear in Court.
(Q) Does going to Court mean there will be a trial and a Judge will decide my case?
Answer: Most matrimonial actions settle with or without the assistance of the Court prior to trial. Only a small number of matrimonial cases are tried to completion. However, if parties and their counsel are unable to reach a resolution outside of Court, most attorneys will recommend filing a Request for Judicial Intervention (an “RJI), which assigns your case to a Judge and triggers a Preliminary Conference. There may be several court appearances before either a Court Referee or a Judge. These appearances are conferences, and not a trial. During these conferences, the Court may assist the parties in reaching a resolution on all or some of the issues prior to trial.
GUIDELINES FOR PARENTS DURING SEPARATION OR DIVORCE
The following suggestions are made to help you and your children throughout the
Collaborative process and beyond:
1. Think first of your children’s present and future emotional and mental well-being before
acting. This may be difficult because of your own feelings, needs and emotions – but try, try, try.
2. Maintain your own composure and good emotional balance as much as possible in talking to
yourself, verbally and in your thoughts. Remember, it is not the end of the world. Laugh when
you can and try to keep a sense of humor. What your children see in your attitude is in some
measure reflected in their own attitudes and emotions.
3. Allow yourself and your children time for readjustment. Convalescence from an emotional
operation, such as dissolution of a marriage, is essential.
4. Remember the best parts of your marriage. Share them with your children and use them
5. Assure your children that they are not to blame for the break up and that they are not being
rejected or abandoned. Children, especially young children, often mistakenly feel they have done
something wrong and believe that the problems in the family are the result of their own
misdeeds. Small children may feel that some action or secret wish of theirs has caused the
trouble between their parents. Explain to them that there are other children whose parents have
been divorced and that they are not going to lose their mom or dad.
6. Continuing anger or bitterness toward your spouse can injure your children far more than the
dissolution itself. The feelings you show often are more important than the words you use.
7. Refrain from voicing criticism of the other parent. It may be difficult, but it is absolutely
necessary. In order for a child to enjoy a healthy development, it is important for her or him to
respect both parents.
8. Do not force or encourage your children to take sides. Doing this will encourage frustration,
guilt and resentment in your children.
9. Dissolution of a marriage often leads to financial pressures on both parents. When there is a
financial crisis, a parent’s first impulse may be to keep the children from realizing it. Often,
parents would rather make sacrifices themselves than ask their children to do so. The
atmosphere is healthier when there is frankness and when children are expected to help.
10. Marriage breakdown is always hard on the children. They may not always show their
distress or realize at first what this will mean to them. Parents should be direct and simple in
telling children what is happening and why, and should communicate in a way that their child
can understand and digest. This will vary with the circumstances and with each child’s age and
comprehension. The worst course is to try to hush things up and make a child feel he or she must
not talk or even think about what he or she sees is going on. Unpleasant happenings need
explanation. Explanations should be brief, prompt, direct and honest.
11. The guilt you may feel about the marriage breakdown may interfere in your disciplining your
children. Children need consistent control, guidance and boundaries. They also need and want
to know quite clearly what is expected of them. Parents must be ready to say “No” when
12. Do not overlook the fact that you are only human and admit it. You will not be able to make
a 100% score on being the perfect parent (no one ever does in good times or bad times). When in
your attempts, you make a mistake – acknowledge it and resolve to attempt to improve day by
13. Understand the importance of shielding the children from the negative impact of parental
conflict. If either parent becomes uncomfortable during a parenting discussion – whether face to
face or over the telephone – rather than permit the discussion to escalate into an argument, make
an agreement with your spouse that whichever of you is uncomfortable will state her or his
discomfort and have permission to end the discussion without further explanation. Both parents
should understand this may include hanging up the phone if it is a telephone discussion – or
walking away if it is a face to face discussion. The parent terminating the discussion should
recontact the other parent within 48 hours to continue the discussion.
14. Read and reread these basic guidelines. Add to them by writing down your own constructive
positive approaches to the handling of your new way of living. Discuss, when practicable, your
thoughts and feelings with other people you trust and with whom you feel comfortable and
benefit by sharing their positive attitudes.