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OVERVIEW OF A PERSONAL INJURY CASE
Causes Of Action
For a plaintiff to recover monetary compensation, he or she needs to prove that all of the elements of a cause of
action occurred. A cause of action is the civil equivalent of a crime in a criminal court. Just like there are different
crimes someone can commit, there are different causes of action a plaintiff can pursue. These causes of action
were known as writs hundreds of years ago in England. There, if someone was injured, they came before the
kings bench and argued that a certain writ was violated by the defendant. The most common cause of action in
personal injury law is negligence. The law of negligence stands for the proposition that all people have to act with
due care. When someone violates that duty of care, they are said to have committed negligence.
Elements Of Negligence And The Burden Of Proof
To recover monetary damages from the defendant, the Plaintiff must show that the defendant 1) owed plaintiff a
duty of care, 2) that the resulting injury was foreseeable, 3) that defendant breached his or her duty of care, 4)
that defendant's breach caused plaintiff's injury, and 5) that plaintiff suffered damages. Lets take for example the
following situation: John is about to get on a bus, he has one foot on the bus and the other is still on the ground,
Gilbert, the bus driver, accidentally leaves the bus in gear and steps on the gas. As a result, John is thrown from
the bus and has serious injuries. In this case, the bus driver 1) clearly owes a duty of care to John not to drive
until John safely got into the bus, 2) John's injury is clearly foreseeable (predictable), 3) but for Gilbert's mistake
John would not have been injured, and 4) John sustained damages. In this case when John sues Gilbert, proving
that Gilbert was negligent should not be too difficult. Finally, as mentioned before, the plaintiff has the burden to
prove the cause of action by a preponderance of the evidence. This means that the plaintiff must prove, for each
of the elements above, that they are more likely than not. If plaintiff is able to show all these elements, then he is
entitled to monetary compensation.
The Role Of Insurance And The Negotiation Process
Everyone these days has insurance whether its auto, homeowners or commercial coverage. The most important
part of having insurance is that the insurance company will pay for your defense if you are sued. Because of this,
before a lawsuit is filed, all insurance companies have an informal resolution process that is designed to terminate
causes of action before they are filed against the insured. During this negotiation process, the insurance
adjustors, as they are called, will basically look at the elements of the cause of action, see how strong the case is
and either deny liability on behalf of their insured or offer a settlement. It is very important for the injured party to
have a skilled lawyer at this stage because the lawyer can hire experts, evaluate the case in your favor, and get
you the best insurance settlement without going to court.
Negotiations Fail And You Are Off To Court.
If settlement is not reached in the negotiation process the next step is to file a lawsuit. This is a formal process
aimed at determining whether the elements of the cause of action are met. While it is a good system for solving
civil disputes, it is costly and time consuming. When the lawsuit is first filed, the parties enter into a time period
called "discovery." This is a time consuming process with many complicated rules. Its goal is to allow all sides to
gather information and prepare their cases: Plaintiff will try to gather evidence proving the necessary elements,
and defendant will do the opposite. There are usually conferences and hearings along the way aimed at settling
the dispute. If the case does not settle, then the issue goes to trial.
Benjamin Charchian & Associates has the experience necessary effectively navigate through this process and get
you the best possible settlement for your case. If you have any questions, please feel free to give us a call, we
would love to speak with you.
Causes Of Action
For a plaintiff to recover monetary compensation, he or she needs to prove that all of the elements of a cause of
action occurred. A cause of action is the civil equivalent of a crime in a criminal court. Just like there are different
crimes someone can commit, there are different causes of action a plaintiff can pursue. These causes of action
were known as writs hundreds of years ago in England. There, if someone was injured, they came before the
kings bench and argued that a certain writ was violated by the defendant. The most common cause of action in
personal injury law is negligence. The law of negligence stands for the proposition that all people have to act with
due care. When someone violates that duty of care, they are said to have committed negligence.
Elements Of Negligence And The Burden Of Proof
To recover monetary damages from the defendant, the Plaintiff must show that the defendant 1) owed plaintiff a
duty of care, 2) that the resulting injury was foreseeable, 3) that defendant breached his or her duty of care, 4)
that defendant's breach caused plaintiff's injury, and 5) that plaintiff suffered damages. Lets take for example the
following situation: John is about to get on a bus, he has one foot on the bus and the other is still on the ground,
Gilbert, the bus driver, accidentally leaves the bus in gear and steps on the gas. As a result, John is thrown from
the bus and has serious injuries. In this case, the bus driver 1) clearly owes a duty of care to John not to drive
until John safely got into the bus, 2) John's injury is clearly foreseeable (predictable), 3) but for Gilbert's mistake
John would not have been injured, and 4) John sustained damages. In this case when John sues Gilbert, proving
that Gilbert was negligent should not be too difficult. Finally, as mentioned before, the plaintiff has the burden to
prove the cause of action by a preponderance of the evidence. This means that the plaintiff must prove, for each
of the elements above, that they are more likely than not. If plaintiff is able to show all these elements, then he is
entitled to monetary compensation.
The Role Of Insurance And The Negotiation Process
Everyone these days has insurance whether its auto, homeowners or commercial coverage. The most important
part of having insurance is that the insurance company will pay for your defense if you are sued. Because of this,
before a lawsuit is filed, all insurance companies have an informal resolution process that is designed to terminate
causes of action before they are filed against the insured. During this negotiation process, the insurance
adjustors, as they are called, will basically look at the elements of the cause of action, see how strong the case is
and either deny liability on behalf of their insured or offer a settlement. It is very important for the injured party to
have a skilled lawyer at this stage because the lawyer can hire experts, evaluate the case in your favor, and get
you the best insurance settlement without going to court.
Negotiations Fail And You Are Off To Court.
If settlement is not reached in the negotiation process the next step is to file a lawsuit. This is a formal process
aimed at determining whether the elements of the cause of action are met. While it is a good system for solving
civil disputes, it is costly and time consuming. When the lawsuit is first filed, the parties enter into a time period
called "discovery." This is a time consuming process with many complicated rules. Its goal is to allow all sides to
gather information and prepare their cases: Plaintiff will try to gather evidence proving the necessary elements,
and defendant will do the opposite. There are usually conferences and hearings along the way aimed at settling
the dispute. If the case does not settle, then the issue goes to trial.
Benjamin Charchian & Associates has the experience necessary effectively navigate through this process and get
you the best possible settlement for your case. If you have any questions, please feel free to give us a call, we
would love to speak with you.
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