The chances of winning a personal injury lawsuit are very high. Over 95 percent of car crash, dog bite, medical malpractice, and other personal injury cases settle out of court.
A settlement’s amount varies wildly, mostly based on the factors discussed below. Just like in real estate, location matters as well. Beginning in the 1990s, many states passed radical business-backed tort reform laws that closed the courthouse doors to victims or limited their compensation. Other states have more victim-friendly laws.
We should also mention the length of time. Some victims win their personal injury lawsuits almost immediately. During settlement negotiations, the insurance company folds faster than Superman on laundry day. Usually, however, personal injury claims wind their way through the legal system before they settle.
This post only covers some basic steps. Other circumstances that affect the chances of winning a personal injury claim include the victim’s injuries, insurance company legal defenses, and successfully negotiating with an insurance company.
What Is a Personal Injury Claim?
A personal injury claim is based on a very simple “you break it, you buy it” responsibility. If Mike breaks a coffee cup at a department store, he should pay compensation (replace the coffee cup). If Mike causes a car accident, doesn’t properly supervise his dog, or inflicts another personal injury, he should pay compensation.
The compensation in a personal injury case is higher because a person is worth much more than a coffee cup. Personal injury compensation usually includes money for out-of-pocket damages, such as lost wages, and intangible losses, such as emotional distress.
What are the Chances of Winning an Injury Claim?
As mentioned, the likelihood of winning a personal injury claim settlement is very high. Settlement negotiations, like new car purchase negotiations, usually involve some compromises on the part of both parties. Neither side gets everything s/he asked for.
In contrast, an absolute win in a personal injury case is much less likely. As recently as the 1990s, the plaintiff’s trial winning percentage was over 70 percent. Today, this winning percentage is under 30 percent.
Although very few personal injury cases go to trial, the low winning percentage affects the outcome of settlement negotiations.
When the plaintiffs’ winning percentage was above 70 percent, personal injury lawyers made high settlement offers that, to avoid a trial they’d probably lose, most insurance companies accepted.
Now that the plaintiffs’ winning percentage is under 30 percent, emboldened insurance companies usually make low-ball offers. That start makes a successful resolution more difficult to obtain.
What Proof Do I Need?
The strength or weakness of an individual case affects the outcome of settlement negotiations even more. Since the victim has the burden of proof, the strength of a case begins with solid evidence.
Initially, evidence in a personal injury case is hard to come by, at least in many cases. Motor vehicle injury claims are a good example, as follows:
- Different drivers usually have different versions of what happened. We remember things selectively.
- Many car crash victims sustain head injuries. These wounds often affect memory and recall ability, so you may not clearly remember what happened.
- Frequently, car crashes are no-witness cases. The wreck might have occurred on a lonely stretch of highway or late at night.
- Sometimes, there’s a difference between legal responsibility and financial responsibility. A third person, like an employer, might be financially responsible for car crash damages.
- The comparative fault doctrine might apply. In most states, if the victim was partially responsible for a car wreck or other injury, the court reduces the amount of compensation.
- Many of these victims have latent injuries, such as Post Traumatic Stress Disorder, that don’t appear right away.
On a related note, such long-term injuries are difficult to financially evaluate, since they involve long-term medical bills and lost earning ability.
So, although the burden of proof is low in a civil claim, victims need a considerable amount of proof to jump over these hurdles and obtain maximum compensation.
Legal Elements of a Negligence Claim
Almost all injury claims are negligence claims. So, to win a personal injury lawsuit, the proof in a car crash or other personal injury claim must establish the legal elements of a negligence case.
Duty of Care
This bedrock principle in a negligence case comes from a 1932 case, Donoghue vs. Stevenson.
One sunny afternoon, Ms. Donoghue found a dead and partially-decomposed snail in the bottom of her beer bottle. Back in those days, victims in these situations usually filed breach of contract cases. But for various reasons we won’t delve into at this time, this legal avenue was unavailable.
So, Ms. Donoghue sued the beer bottler, arguing that Stevenson had a duty of care to sell pure bottles of beer that didn’t contain dead mollusks.
Surprisingly, the court cited the story of the Good Samaritan and sided with Ms. Donoghue. This man went out of his way to assist an injured traveler. Likewise, a beer bottler, and everyone else, must go out of his/her way to avoid injuring another person.
The precise duty of care varies in different situations. Most people, including most drivers, have a duty of reasonable care. Motorists must be sober, well-rested, and otherwise in good shape before they get behind the wheel. As they drive, they must obey the rules of the road and avoid accidents if possible.
Breach of Care
Drivers breach their duty of care if they don’t live up to the reasonable care standard. Most driving errors, but not all of them, constitute a breach of care.
Device distraction, one of the most common kinds of driver impairment, illustrates the difference between an “accident” and negligence. Most people multitask through the day. So, they assume they can multitask behind the wheel as well.
If Bill took his eye off the road for a moment to look at a text from his daughter, to most jurors, that’s not a breach of care. However, if Bill had been texting with his girlfriend for several miles, most jurors would agree that Bill breaches his duty of care.
Evidence, preferably Bill’s device use log, usually establishes the difference. This log conclusively and objectively proves device use.
A spoliation letter, which orders the recipient to preserve any potential physical evidence for trial, prevents Bill from “accidentally” deleting this important information.
We should stress the “objective” element of evidence. Many news stories on popular websites are little more than evidence-based opinions. Witness opinions are only admissible in limited situations. For the most part, it’s just the facts, ma’am.
These rules vary slightly in different states. Generally, to obtain compensation, the breach of care must substantially and proximately cause the victim’s damages.
A substantial cause is more than a contributing cause. Bad weather, like rain or fog, often contributes to car crashes. Driver error, such as speeding or distraction, substantially causes these wrecks.
The substantial cause rule gets tricky if a wreck involved multiple substantial causes (e.g. the driver was drunk and the car had faulty brakes). In these situations, the judge divides responsibility among these parties. The amount of compensation is unaffected.
Proximate cause is foreseeability (possibility) of injury. This issue doesn’t arise very often in car crash cases. But it does come up in negligent security claims.
Property owners are financially responsible for violent crime damages if the owner was negligent, as outlined above, and the injury was foreseeable. Evidence of foreseeability includes the area’s crime rate and the type of business. Bridal shops are usually not as violent as saloons.
Usually, compensation is unavailable for “near miss” personal injuries, like getting cut off in traffic, slipping and almost falling, or an encounter with a menacing stranger.
These incidents are frightening, and compensation is available for such fright. However, the victim must sustain a physical injury or actual property damage, at least in most cases.