Common Questions About Personal Injury Litigation

“How does personal injury litigation work? What are the steps involved?”

These are a couple of the many questions we hear from clients when visiting with them about their personal injury case. Satisfactory answers are critical for them to decide whether or not to seek compensation for another’s wrongdoing. All personal injury plaintiffs should have a basic grasp of the process involved with filing suit and should be prepared for the different directions their civil lawsuit might take.

What is personal injury litigation?

Plain and simple, it is taking legal action in hopes of receiving compensation for the cost of damage suffered by the actions of another. This type of lawsuit can be against an individual person, a group of people, or a business entity.

What is civil litigation?

It is a legal dispute between two or more parties where the plaintiff – in this case, the injured victim – seeks monetary damages from the defendant. It has nothing to do with seeking criminal penalties, although the defendant may also face those charges in addition to being a defendant in a civil trial. Criminal charges are filed by the government, not the victim.

Civil litigation is more than just a trial, which does not happen overnight. It can take awhile to get to that point because it also includes pre-trial hearings, depositions, and possible arbitrations and mediations before administrative agencies. Not every stage of litigation is reached in every civil action; for example, most personal injury cases settle before trial and many verdicts (and settlements) are not appealed.

What is a tort?

When someone or something injures another person it is referred to in the legal profession as a “tort.” A tort is committed when one person is harmed because of the wrongful act of another. So tort law essentially “assigns” responsibility to the person, group, or business entity which is responsible for causing such harm.

What happens when someone is injured: what are the basic steps leading up to a trial?

The injured victim must file a civil complaint. It can be done without a lawyer; but that is a decision that is often regretted. Next, the defendant is informed and will either confirm or dispute the plaintiff’s claim. If the defendant disputes the claim’s demand for damages, the two parties (including the defendant’s insurance company) will likely negotiate a hoped-for solution. If negotiations are unsuccessful, defendant and plaintiff attorneys initiate a discovery phase in which witnesses are deposed (formally questioned) and evidence to be presented in court is prepared for trial. If neither side can agree on a solution, the case will then be argued in front of a judge (and often, but not always, a jury) in order to reach a verdict.

What are the most common types of personal injury cases that are filed?

Various types of complaints are filed dealing with a multitude of topics including: aviation; birth, brain, or burn injury; environmental disasters; medical malpractice; home injuries and more.

But the five most common personal injury claims which can lead to civil trials involve:

  • Motor vehicle accidents – this category is by far the most common
  • Work-related injuries – often against third parties who caused the accident
  • Assault – by injured victims against their aggressor, who is probably also facing criminal charges
  • Slip and fall accidents on someone else’s property
  • Defective products – including medical devices, prescription drugs, vehicles, and other consumer and institutional products

Will my case end up in court?

Nine out of ten times, out-of-court settlements are reached. Juries and judges are unpredictable and you just don’t know what they’re thinking. Risk-averse insurance companies much prefer to settle reasonably than risk getting a massive judgment against them.

What is the burden of proof? And who bears it in a civil trial?

Depending on the courtroom you’re in, burden of proof means different things. In criminal court, the criminal suspect’s actions must generally be proved “beyond a reasonable doubt” in order to be convicted. But in civil cases, there’s a lower standard of proof that involves “the preponderance of the evidence.” This means the evidence “strongly suggests” it is most likely that something occurred in a certain way. In a civil trial, the burden of proof lies squarely on the injured victim/plaintiff – you.

What are class action lawsuits?

A single plaintiff lawsuit involves only one person who is injured due to the defendant’s negligence. A class action suit involves multiple plaintiffs suing the same defendant for the same act which injured each of the plaintiffs. One plaintiff essentially files the case and represents all of the injured victims. If the lawsuit is successful, the plaintiffs divide the amount of the damage award equally.

What is a mass tort?

A mass tort lawsuit is a civil action where numerous victims of the same defendant file their own lawsuits against one or more negligent parties. Each injured victim claims similar causes of harm (defendant’s negligent breach of its duty of care). Most mass torts involve defective products, such as motor vehicles and their components, medical devices, or defective prescription drugs. Often a corporation is the alleged defendant. Unlike class action lawsuits, in a mass tort, successful plaintiffs are awarded their own damages which actually reflect their unique injuries.

Defective drug, device, or product cases are typically handled as mass torts or class actions. But other types of injury cases may occasionally be tried using the same approaches.

Do I really need an attorney?

All cases are different. Speaking with a skilled attorney in a free consultation can only help you make an informed decision on how to proceed.

If you have any questions surrounding your injury or a potential legal case, or contact Terry Bryant Accident & Injury Law for a free consultation.