General Personal Injury Questions

A general personal injury case is one where the victim is harmed (usually physical harm), but the circumstances don't fit any of the more specific categories. These are cases where negligence is alleged by the injured party. Negligence usually refers to harm caused by carelessness. The failure to take due care could be a result of not doing something or failing to do something to a reasonable standard.

How do I know if I have a case?

Only a qualified lawyer can tell if your specific circumstances are likely to result in an award. However, there are elements that most successful personal injury cases share.

• Were you injured either directly or indirectly? Or, are you the legal representative of someone who was injured?
• Was someone else at fault – either wholly or partially?
• Can your injuries be documented?
• Is the person or organization at fault capable of being sued? In some special cases, laws have been enacted to protect certain entities from lawsuits.

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Does the harm have to be physical?

Not necessarily. Emotional pain and suffering are recognized by the courts, as are injuries to your reputation.

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How long do I have to file a claim?

Statutes of limitation are set by state law. In Montana, there is a three year limit on most lawsuits, with a shorter limit (two years) for cases involving fraud and intentional harm). There are also exceptions that might apply. For instance, in a case of product liability, the clock doesn't start ticking until the discovery is made. This is called the "discovery rule," and it applies to various types of negligence – but not all.

It is almost never a good idea to wait. If you feel you have been injured, discuss the matter with an attorney. They can advise you on how much time remains for that type of case.

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What if the injured party dies before the case is settled?

In most cases, the tort will survive their death and any judgment will become part of the estate. If the person dies as a result of the injury involved, their relatives or significant others may bring a wrongful death action as well.

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Can I sue in a personal injury case without a lawyer?

Yes. Legally, you are entitled to represent yourself. This is a freedom granted in the United States. Very few people do this however, for two main reasons. The first is that they do not have the expertise needed to successfully meet the often aggressive legal defense an insurance company will bring to bear and secondly, statistics show that using a skilled attorney dramatically increases the average amount of the award (300% or more).

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Won't legal fees reduce the amount I can collect?

Because judgments are higher with professional representation, those that use a lawyer's services collect more – even after the legal fees are deducted. On the other hand, if you have a minor claim that only property damage, you may not need an attorney. Ethical lawyers will inform you of this during any initial (free) interview.

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How much does it cost to pursue a case?

Typically, personal injury cases are handled on a contingency basis. That means you do not have to pay out-of-pocket expenses. Your lawyer is paid as part of the settlement and only after you win. Courts set limits on how much a contingent fee can be, but a rule of thumb is a maximum of one third of the final award. You may make other arrangements with your attorney – for instance, billing hourly or a flat fee.

However you decide, you should be frank and upfront about asking for pricing information.

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How can I best help my chances of winning?

The more accurate and detailed the information you are able to provide, the better. This starts with the first meeting and continues throughout the case. Do not assume that some detail isn't worth mentioning – only your attorney can decide the importance of a certain fact. They will rely on you to provide a complete picture and count on your partnership for things like doctor appointments, depositions and court appearances.

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Does lawyer/client privilege apply to personal injury cases?

Yes, most definitely. At the base of the law is an obligation to truth and honesty. To promote this, anything you say to your attorney will be held in confidence. This is important not only because you may be embarrassed or ashamed of some things, but because establishing trust is key to winning your case.

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Will I win more money if I lie or exaggerate my injury?

No. In fact, if you are discovered lying, your case may be irreparably harmed. No ethical lawyer will allow you to commit perjury or exaggerate your injuries. Please do not attempt this. An actual, proven injury will win – feigned injury will lose and may get you brought up on fraud charges.

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What is a "duty of care?"

In negligence lawsuits, the victim has to show that the defendant foresaw (or should have foreseen) that injury might occur; that there was a connection between the two parties; and that it is reasonable to assume the defendant is responsible for the injury. This is open to a ruling by the judge, but is a required element to prove a negligence suit.

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What is "breach of duty?"

Once a duty of care has been established, the next thing plaintiffs have to prove is that the duty was not upheld – in other words, someone was responsible (duty of care) and they failed to meet their responsibility (breach of duty).

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What is "factual causation?"

This, along with "harm" will determine whether (and how much) a defendant is required to pay. While duty and breach of duty would seem to include causation, the link can be tenuous and has to be clearly demonstrated. For example, your actions may have caused the injury (or made it worse), even though someone else was also negligent. This also sometimes arises when more than one defendant could be seen as negligent. In medical malpractice claims involving adverse drug reactions, both the prescribing doctor and the pharmaceutical manufacturer might be in the chain of causation.

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What is "harm" in a negligence claim?

There is usually several areas where harm may occur. Any and all of these may result in an award. The most common forms are property damage, physical harm and emotional distress. Others include pain and suffering; loss of quality of life and loss of companionship.

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What are "damages?"

Damages refers to the amount collected from the plaintiff in a lawsuit. There are two main types. The first is compensatory damages – these are meant to pay for the harms shown to have occurred. The second is called punitive damages and these represent a penalty in addition to compensation. The purpose of punitive damages is to change the behavior of a negligent party by imposing a larger settlement. Product liability cases may have a punitive damage element.

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Do lawyers make more money if they delay settling a claim?

No, they do not.

There are often solid legal reasons for delaying, but compensation isn't one of them. For example in a traumatic brain injury case, it may not be know how extensive the damage will be for some time – settling too early may result in an award that doesn't meet future needs.

Some law firms take the opposite tactic. They churn through as many easy cases as they can to make money on the volume. If the case becomes difficult, they may even refer it out – thy may want to avoid a trial because of the associated costs. This is absolutely not how Neuhardt Law practices. If your case has to go to court, Solomon will be there. The advantage is that he is already familiar with your matter and "up to speed."

Delays can be frustrating, and this is sometimes used by an insurance company to pressure claimants into settling for less than they deserve. The best policy is to express your concerns and as for an explanation.

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What questions might I be asked in a personal injury case?

You may be asked about prior medical conditions and current medical care – these are used to help establish damages. You may also be asked for details about how the accident happened, what you did and your current situation. Anything related to your health is fair game, including your medical history. You should not answer any questions without your attorney being present. They will also advise you on how to best deal with doctors and insurance company representatives. Please follow this advice.

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What if you don't settle a claim?

Most claims are settled without going to court. Once a defendant (usually an insurance company) sees that you have a skilled lawyer on your side and they see the facts available, it is in their interest to settle. Remember, unlike you, they have to pay their lawyers an hourly rate – going to court is expensive.

However, if a settlement cannot be reached that is agreeable to both parties, there is no recourse but to take the matter to court and let a jury decide the issue.

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What should a client know when settling a claim?

Some factors you should keep in mind are how likely you will get a substantially larger amount if you go to court (your attorney can advise you on this); how much of your current and future expenses will be compensated; what are the plaintiff's resources (are they able to pay?); are you prepared for the delay and further expenses that come with going to court?

While there are no guarantees, a full and fair settlement is the objective. If that can be had without the burden and costs of going to court, that is ideal. If you have to compromise, understand that a settlement is exactly that – it is very unusual to get another chance to collect for the same incident.

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