What is Negligence and Why Must My Lawyer Prove It?
With the exception of a no-fault auto accident case in a state that has a no-fault insurance system, a person seeking money damages for bodily injuries (the plaintiff) must prove by a preponderance of the evidence that the party who caused his/her injuries (the defendant) was negligent. A defendant was negligent when that party acted unreasonably and carelessly in performing an act that harmed the plaintiff. For example a driver who ran a red a light or a stop sign before crashing into your car would be found negligent because he fell below the standard of care for the safety of others incumbent upon any reasonable driver.
A defendant can sometimes be found negligent for omitting to perform an action that causes the plaintiff’s injuries. Thus a residential landlord who who repeatedly ignored his tenant’s requests to fix a set of wooden exit stairs that are dry-rotted and falling apart, would be found negligent if the tenant fell through the stairs and struck his/her head.
What Evidence Should You to Bring to a Lawyer?
Take all of the evidence you have concerning the event that injured you which could include a police report, photos of the accident scene, photos of vehicle damage, and estimates of vehicle damage repair costs. You should also bring all of your records of hospital/medical/drug treatment and the bills that you or your health insurance paid for such treatment. If you have x-rays, CT scans, MRIs, and/or prescription drug records, then take those too. You should bring any photos you have to prove your injuries occurred such as photos of you in the hospital and photos of you with a black eye or stitches in your head. You should bring evidence of your occupation, your salary and benefits, and the loss of salary/benefits you incurred because of your injury.
Such evidence might consist of pay stubs, W2s, and/or a letter from your employer. If you have been prevented from participating in sports, recreational, artistic, creative or other activities you used to enjoy because of your injuries, then bring evidence to substantiate this problem. Your lawyer will most likely want other bits of proof. Certainly he/she will want the names, addresses, and phone numbers of all witnesses (including family and friends) who are willing to help and who can confirm your injuries, pain and suffering, activity restrictions, and change in personality (if one has occurred).
Who Will Your Lawyer Sue for You?
After reviewing your evidence regarding the accident, your lawyer will investigate (sometimes with the help of expert consultants) and explore the potential for suing more than the one obvious defendant, such as the driver who crashed into your car. Most accidents have more than one contributing cause. Just because the other driver failed to stop at the stop sign doesn’t mean the case is limited to suing that driver. The stop sign might have been knocked down the day before and not replaced. There could be untrimmed foliage that blocked the other driver’s vision of the stop sign. The repair shop that was supposed to maintain his brakes might have used inferior parts or used parts or even failed to inspect the brakes. There might have been an oil spill or gravel recently dumped on the road that prevented the other driver from braking. The other driver’s physician might have known he had epilepsy but not informed the DMV so the DMV could suspend his license. The other driver’s optometrist might have failed to discover obvious cataracts that fogged the driver’s vision. Your car may have been uncrashworthy due to malfunctioning airbags or seatbelts or for other reasons. These are just a few examples.
When Will Your Lawyer Sue?
Did you know it’s possible to wait too long to sue for your injuries and end up forfeiting your legal rights? Don’t find this out the hard way. All 50 states have their own laws (called statutes of limitation) that regulate the amount of time a person has to file a lawsuit in the proper court to preserve their rights to collect damages from the person who harmed them. Theses statutes of limitations vary and can set a time limit at 1, 2, 3 or more years from the date of the incident that caused the injury. Separate and shorter periods of limitation govern filing an administrative tort claim against government entities at the federal, state, and county level.
The crucial thing is not to miss the applicable statutory period, because if you do you will be forever barred from filing a lawsuit for damages no matter how devastating your injuries. I encourage you not to delay getting a qualified lawyer who knows the laws of your state to advise you. You do not have the luxury of time in legal matters. People who dawdle lose their rights. Contact me right away so I can refer you to local counsel who will get your brain injury case filed in time if you have not already waited too long.
What is the Value of Your Case?
Every potential client wants to know the value of his or her case. You should be aware that no lawyer acting in a professional manner would ever give you a case value over the phone during an initial conversation. Run the other way if you tell a lawyer on the first call that “I have a brain injury,” and he or she quotes you a case value. Do not hire the lawyer who quotes you the highest case value. A true professional will simply not quote you a case value, but will wait until the case has been thoroughly worked up and is ready for settlement to give you his or her thoughts.
Case value is always viewed in a range and the range depends on such things as the case venue (whether the jurisdiction is liberal or conservative); when the case is being evaluated (before a complaint is filed, on the eve of trial or during trial); how many defendants were sued who are available to contribute to a settlement; the amount of each defendant’s liability insurance coverage; the credibility and likeability of the parties and their fact witnesses; the reputation and capability of the expert witnesses for both sides; the capability of the lawyers for both sides; the budget each side is able to afford for a trial; the percentage of the plaintiff’s comparative fault in causing the accident; and the existence or non-existence of defenses that could possibly wipe out the plaintiff’s case if they succeeded.
Trying to get a good fix on case value is a gradual process that involves acquiring, reviewing, and analyzing a great deal of information. Here is a partial list of the kind of information that goes into determining case value: The amount and destructiveness of the physical forces applied to the plaintiff’s body and brain in the accident; the duration of any loss or alteration of the plaintiff’s consciousness and whether this loss or alteration was witnessed by others; the existence or non-existence of brain scans, neuropsychological assessments or other forensic proof showing plaintiff sustained a TBI and that the brain damage correlates well with the provable changes in plaintiff’s functioning; the quantity and quality of plaintiff’s pain, mental suffering, emotional anguish, and lost enjoyment of life.
Other factors that play a role in determining case value are: the age, gender, health history, work history, social history, and life activities of the plaintiff pre-incident such as hobbies, volunteering or travel; how drastically and for how long the plaintiff’s life changed as a result of the TBI; whether the changes in plaintiff’s life after the incident may have occurred as a result of circumstances or stresses unrelated to his or her TBI; whether the plaintiff had any neurological, psychiatric or psycho-social problems prior to the incident which may account for his post-incident complaints; whether the plaintiff is single, married or divorced and has financial dependents; the amount of hospital, medical, therapy, and drug expenses plaintiff has already incurred and is likely to incur in the future as result of the TBI; the amount of wage loss plaintiff suffered and will likely suffer in the future if he or she was employed when hurt; and the amount of loss of earning capacity plaintiff suffered and will likely suffer in the future if he or she was not employed when hurt.
What do you do with the money that comes from a settlement or verdict?
What happens if you sustain significant, permanent injuries and you are going to have live off the funds your lawyer acquired for you through a settlement or verdict? The very worst thing you could do is go to Las Vegas and gamble it in hopes of doubling it. Odds are you will blow it all and wind up in debt. The next worst thing you can do is to hand it all over to some self-proclaimed investment guru.
Here is an example of what can happen. On August 8, 2014 the Times Union of Utica, New York, reported that two investment professionals had been sentenced by a federal district judge to terms of 15 and 10 years each for defrauding innocent investors with a Ponzi-like scheme. The victims included a woman who lost all the money she received for her traumatic brain injury and a man who lost money from a settlement for an accident that put him a wheelchair for life, forcing him to delay his retirement and put off his daughter’s wedding.
What is a better plan? Before you sign a Release of all Claims to get your money you should consult very carefully with your lawyer and a tax expert. For many years the law has been that lump sum cash compensation paid solely for personal injury through a settlement or verdict is not taxable, but interest earned on the lump sum in a checking, savings, bond, stock or other investment account is taxable. The only exception to this has been something called a structured settlement which preserves the tax free status of the principal (the lump sum cash) and the stream of interest earned on that principal.
A structured settlement must be entered into at the same time as and in conjunction with the Release of All Claims. To be effective the structured settlement must describe the allocation between cash up front to the plaintiff and the amount paid as a premium to the life insurance company to pay the plaintiff’s future annuity income; the name and address of the life insurer; as well as the date, frequency, and amount of future annuity payments from the life insurer to you. Only triple A rated life insurance companies should be used to fund the annuity to reduce the risk of default to a minimum.
The date, frequency, and amount of the payments should be carefully planned with a financial planner to reflect your present and future needs as well as the present and future needs of dependent family members (e.g. to pay college tuition for your children when they are of age). It is also crucial to guarantee the payments in the structured settlement contract so that if you die before the last payment your loved ones will still receive all payments owed. A good TBI lawyer will associate a certified expert in structured settlements to help him or her plan the terms of the agreement with you to take care of all tax concerns as well as financial planning concerns.
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