The quick, easy, no mess guide to filing your own personal injury claim.
So you’ve just been injured because someone was negligent and you want to be compensated for your injuries. Or maybe you’re trying to settle your case on your own but, as it turns out, you’re in over your head. Maybe you’re simply afraid that a personal injury attorney will cost too much, and are looking to handle it yourself.
So what do you need to know to get started on your claim? Well first you’ll want to know exactly what negligence actually is, and more importantly, how to prove it in court.
Step 1: Understanding Negligence
There are four components to a claim for negligence: duty, breach, causation, and harm. We’ll do our best to explain it as concisely as possible so that you’ll have a better understanding of the intricacies of these types of claims.
- Duty — The first element, duty, refers to a duty of care owed to you. If the person who caused your injuries owed you a duty of care and they breached that duty, then you have proven the first component of your claim! There are countless variations and standards for different duties in different situations, and you must be aware of how these will affect your claim. Injured in a grocery store? The store owner probably owed you a duty of care… unless of course your state has thrown out the “invitee vs. licensee” distinction and instead established the Rowland v. Christian standard. What is the difference between an invitee and a licensee? We’ll discuss this in detail in part 33 (§33.4.17) of this quick and easy guide to handling your own personal injury lawsuit.
- Breach — What if you were injured when you stepped into a hole on your neighbors lawn? If the neighbor knew his lawn was filled with holes and trenches, are they liable for not telling you about them? As long as he has a “special relationship” with you, then he had a duty to warn you of the potential and you can seek damages. But what exactly is a special relationship? You would assume that being a neighbor would qualify, however in the legal sense, this is not the case. Only certain special relationships have been recognized, including: common carrier-passenger; innkeeper-guest; custodian-ward; business invitor-invitee, etc. You don’t need to establish a special relationship to prove this element though; but you must prove that a duty existed, and the defendant breached that duty.
- Causation — Assuming the person who injured you owed you a duty of care and they breached that duty, now you will just have to determine whether or not the person caused your injuries. How hard can that be? In order to prove another person’s negligence caused your injuries, you’ll just have to prove that the other person’s negligence was both the proximate cause and the cause-in-fact of your injuries. Stay tuned for part 66 of this series to learn about both of these enthralling concepts! What if a company caused your injuries due to a defect in a product? Proving that is simple, you’ll just have to hire expert witnesses. These witnesses will testify to the defective nature of the product you were using, provided you pay them ~$500 per hour for their time and they reach the same conclusion. As long as you have thousands of dollars to spend on expert witnesses, there’s no reason that you can’t do this yourself.
- Harm — Finally, were you harmed due to someone’s negligence? If so, you may have a valid personal injury claim. But remember, just because you were harmed does not mean you can prove it in court. If you were emotionally harmed, you’ll have to hire more expert witnesses to testify to your emotional state for another ~$500 an hour. Even if you have obvious physical harm, your opponent will probably hire an expert witness to downplay the severity of your injuries, so you’ll have to hire another expert witness to refute theirs.
But wait, don’t forget to discover whether or not your state is a comparative fault or contributory negligence state. Some states (like Texas) even recognize what’s called “modified comparative fault.”
If you were determined to be partially negligent, you might not be able to recover any compensation at all due to the 51% rule (if applicable in your state). You’ll just have to anticipate whether or not a jury of twelve random strangers will consider your negligence as a mitigating factor! It takes attorneys years to understand this concept, and unfortunately this cannot be fully explained in a single article.
Your opponent might throw you a curveball during the discovery process and send you a spoliation letter, claiming that you failed to protect and preserve vital evidence in the case. Make sure you save every important document – there could be thousands – and file them in an organized manner. If you lose something, a judge could order sanctions filed against you and you could lose your ability to dispute key facts used by the defense. In an injury claim or lawsuit, you must make sure to meticulously categorize every single document related to the case.
On the other hand, at-fault parties often destroy evidence because they know that the person bringing the claim has no attorney (and thus probably has no idea that spoliation letters even exist). If you fail to send a spoliation of evidence notice to the defendant and the evidence was destroyed, you may very well have lost the key evidence necessary to secure a win.
Next, you will need to learn the Federal Rules of Procedure, fund your trial expenses, and develop your litigation plan (which generally takes attorneys hundreds of man-hours to complete)… And this is just scratching the surface.
Okay, let’s be real…
Now, clearly this piece was written in jest, but hopefully it emphasizes the need for an attorney in a personal injury case. Small claims court is one thing, but personal injury negligence and/or wrongful death lawsuits are a whole different ballgame and you truly need an experienced attorney in your corner in those situations.
Everybody’s probably heard the old adage, “He who acts as his own lawyer has a fool for a client.” Well, this statement couldn’t be more accurate. While I’m not trying to insult those who wish to handle their own case, you have to understand that this is never a smart idea. Even practicing attorneys who have a claim rarely EVER handle their own cases.
Personal injury lawyers, like the ones at Rasansky Law Firm, work ONLY on behalf of injured victims. We NEVER do defense work. We do not handle criminal cases, divorce, etc; we only help those who are injured recover compensation. It’s all we do, and we have a great track record over the past 20 years that we’ve been in business.
Yes, you could attempt to do all this yourself (pro se), but if you’ve never tried a case before, why on earth would you risk it? You get one shot at a lawsuit, and if you go through the process and end up losing, you’re precluded from bringing the claim again. Hiring an attorney saves you the time and hassle of handling the process yourself, letting you focus on recovering from your injuries or loss (not to mention those who hire attorneys generally recover over 300% more than those who do not).
But what about the cost of a lawyer?
If you’re afraid of the cost of a lawyer, it’s important to understand that personal injury lawyers do not charge you anything out of pocket. I’m sure you’ve heard lawyers say “you don’t pay unless we win your case.” Well, they’re 100% correct. Under a contingency fee agreement, you literally owe our firm nothing unless we’re able to secure compensation for you; our firm simply takes an agreed-upon percentage of the winnings.
But how can that be economically feasible? Well, personal injury attorneys generally don’t take cases that they don’t think they can win. An attorney will meet with a potential client and assess their case for free. The attorney will tell them whether or not they can take the case, and regardless of what the attorney tells them, the client is free to decline to pursue the case or to find another attorney. The client ultimately controls the process. If the client wants to push for a settlement rather than take the case to trial, they can tell their attorney upfront and he or she will fight to get the case settled.
Under a contingency fee agreement, your goals are aligned with those of your attorney. There is no need to worry that your attorney is dragging their feet, as this would only cost the law firm money; not you. You can also rest assured that your attorney is fighting to get you every penny you deserve, as settling for less would not be in either of your best interests.
Attorneys are equipped to negotiate personal injury settlements because they’ve done it a thousand times before and know all the ins and outs of the process (plus the tricks most-commonly used by insurance companies). They’ve also proven that they can beat the insurance company in court, giving them bargaining power. They know what other people with similar injuries have been paid in similar settlements, and they know how to back up their demands. Additionally, they have expert witnesses who can attest for 100% of these claimed damages. Insurance companies are not going to fairly negotiate with an unrepresented plaintiff; they simply aren’t afraid of you. However, if you have an attorney who has beaten the insurance company before, they will be much more likely to fairly negotiate or settle the claim in order to avoid a lawsuit.
So, while the idea of handling a personal injury claim may sound simple on the surface, the reason why personal injury attorneys exist is because the process is complicated and victims need an advocate on their side to fight for their rights. The insurance company has a team of attorneys working against you, and without representation, you simply stand little to zero chance at a successful and fair recovery.
Have questions? Call us at 1-877-405-4313 for a free consultation!