Personal injury claims can be a difficult process, but the best way to have it go smoothly is to have a qualified personal injury lawyer on your side representing your interests. While this is always a good idea to have one on your side, it is important too to understand the process that a personal injury lawyer goes through in order to establish proof of negligence in the personal injury case, which we will be examining in this article.
How a personal injury lawyer proves fault for negligent injuries
One of the first things that a lawyer will do is to examine the circumstances and evidence of the case before them. The main reason why the law firm takes care to do this is because sometimes, a personal injury claim may simply not have merit, or may otherwise be very difficult to prove, and thus, may not be worth undertaking for you or the attorney. One of the first things that the attorney will do is establish whether the would-be defendant had a duty of care they had to follow, and they failed to fulfill that duty to a reasonable degree. Of course, everyone typically has a duty of care to everyone around them, to a reasonable extent anyway.
Establishing the extent of a person’s duty of care, and whether there was a violation of a reasonable duty of care, can be rather tricky, as there is no legal obligation for a person to fulfill a certain duty of care. One example of a duty of care is that a factory owner has an obligation to ensure that the worksite is safe for employees and anyone else authorized to enter the facility to traverse. For instance, there is an obligation to ensure that obstructions, spillage, risk of falling, etc. are all addressed to a reasonable degree, but there is still a risk that a spill, for instance, may occur, and an injury may happen shortly thereafter, without the opportunity for that spill to be addressed. Granted, if negligence led to the spillage and thus injury, that would qualify the business to have failed to fulfill its duty of care, but the longer a spill — negligent or not — is allowed to linger, the stronger an argument can be made that allowing the spill to linger constitutes negligence.
After it has been established that the duty of care may have been breached, the attorney will begin to examine whether a careless action or inaction led to your injury. Essentially, it is important that you can show that this action or inaction introduced a greater degree of risk than a person can expect to face in their day-to-day life. Some situations are more or less obvious as far as whether a breach of duty occurred; for instance, a pedestrian who was hit by a driver while that driver was talking on the phone has a strong case to make that this form of distracted driving constituted a breach and, in turn, negligence.
Once a lawyer has found that the person or persons accused engaged in negligent behavior, they may be inclined to go forward with this case, although they are not necessarily out of the woods yet. For example, the accused may even agree that they engaged in negligent behavior, but that in the grand scheme of things, their negligence was not responsible for the injury, or at the very least, that someone else — possibly even the plaintiff — was also responsible for the injury. If they can successfully argue that you were majority at fault for your own injury, that is a major spanner in the works. Even if you are only shown to be partially but not majority at fault, this will likely result in reduced compensation. For instance, even if the driver was talking on their cell phone while driving, they may claim that you were jaywalking or not paying attention to traffic yourself, putting you at greater risk as a result. Of course, just because they make a claim does not necessarily mean that said claim has any merit. A good attorney is always working on getting clients compensation for their injuries, and will do everything in their power to ensure that such tactics to avoid paying the appropriate compensation fail to succeed.
Most personal injury claims center around negligence by the accused. As a result of this, the plaintiff (and their lawyer) are expected to meet a certain burden of proof to establish that negligence occurred in the first place, hence how much legwork is done to show negligence. However, in many personal injury cases, fault is not something that needs to be established anyway. This is due to the fact that many, when accused of having negligently caused an injury and facing a lawsuit, are inclined to settle out of court. A settlement does not necessarily involve fault, and while it may be nice to have fault be established, the most important thing to do is to receive compensation to cover your injuries, loss of income, and other damages that you suffered from the original incident. This is more likely to occur in the event that negligence is blatant, and thus, it would be a foolish decision on the defendant’s part to not settle this out of court. However, even if the defendant is willing to settle, the both of you have to be able to come to an agreement as to how much money will be awarded as compensation. If they want to settle for well below what you are hoping to get, settling out of court may not be an ideal approach to take.