Introduction to Personal Injury Settlements
If you are involved in a personal injury settlement, you will have to prove two things: 1. That you sustained an injury; and
2. That the injury was caused by the negligence of another person or entity.
After a Personal Injury Accident
1. Record (on camera or in writing) the details of the incident that led to your injury.
A picture is worth a thousand words, but if you don’t have a camera ready, your own written record will suffice. As soon as possible after the incident takes place, write down everything that you remember from your perspective, including the events that led up to and followed the injury itself. Make sure to include pertinent details, such as the weather outside, the words or actions of the offending party and the time of day, if applicable.Ã?¯Ã?¿Ã?½
If you have a camera, take pictures of the scene after the injury occurred, and of the injuries you sustained. If the injuries were sufficiently severe to require hospitalization, then this might not be possible, but you should ask a friend or family member to do it for you. In some cases, a pictoral record will not be possible, but this does not mean that you cannot win your case.
2. Keep a journal.
Throughout the treatment, rehabilitation and recovery process, keep a daily journal of your experiences with the injury. Describe in detail the pain you experience, the ways in which the injury is affecting your life, and the ways that your injury affects your family. This will be helpful to your attorney when he or she files your suit, and will be a powerful influence over the court who reviews your case.
3. Take notes about the claim process.
One of the most difficult and tedious aspects of personal injury settlements is the claim process. This is the time during which you are filing your claim with the court system. Record the time, date and substance of all conversations with your insurance company, medical personnel, witnesses to your injury and/or the incident, and anyone else with whom you discuss your case. Keeping a paper trail is one of the most crucial aspects of your case.
4. Retain all evidence pertinent to your case.
Because the scenes of injuries are often compromised soon after an accident, it is important to do this as soon as possible. If you go back to collect evidence after weeks or months have passed – sometimes even just days – the circumstances will have changed, and your evidence will mean nothing in court. Evidence can be anything from pictures of the scene of the injury, the clothes you were wearing when the injury occurred, the product or machinery that caused the accident; to the accounts of eye witnesses who saw the injury take place.
5. Obtain a copy of the police report.
Although some civil courts do not admit police reports as evidence, it is still a good idea to request a copy from the law enforcement agency that responded to the accident that caused your injury. For one thing, it will give you leverage when your attorney speaks with the offending party or with the insurance company, and it will help you to remember details about the accident that may have slipped your mind.
Handling Your Claim Out of Court
Many personal injury settlements are reached outside of court or mediation because the offending party does not wish to endure the exposure that a court trial would create. This can have both positive and negative ramifications for the person who sustained the injury, though it is sometimes favorable, depending on the circumstance.
When you first hear that the offending party wishes to discuss an out-of-court settlement, call your attorney immediately. It is best to tell the individual or entity that you wish them only to talk with your lawyer, rather than calling you directly so that you don’t make any mistakes. Never have a discussion with the offending party or their insurance carrier without your attorney present.
In most cases, the offending party will make a monetary offer as recompense for your injury. Sometimes that offer will be acceptable, and sometimes it will be grossly low. It is up to you and your attorney to accept or reject the offer once it has been tabled. If your attorney advises you that the offer is too low, don’t settle for what you’ve been offered. Just because the offending party wants to settle out of court does not mean that they get their wish.
While discussingÃ?¯Ã?¿Ã?½your injuryÃ?¯Ã?¿Ã?½with the offending party, never apologize for anything and never sign anything until you’ve thought it over. It is best that you and your attorney discuss the situation in private before issuing a response for the settlement.
Handling Your Claim in Court
Many personal injury settlements do go to court, either because the offending party does not want to compensate you for your injury, or because you couldn’t reach a mutually agreeable settlement amount. In either case, you should be prepared for a long and greuling process.
Your attorney will have to file several claim reports with the county court in which you live. The first round of paperwork is called the complaint, or petition, and is designed to give the plaintiff’s version of what happened, and the reasons for seeking monetary compensation for an injury.Ã?¯Ã?¿Ã?½
Once your paperwork has been processed, the defendent (whoever caused your injury) will be sent a summons, which will require them to respond to your complaint, and will notify them that you are being sued. Should the defendant not respond to the summons, the case may be decided without them and he or she will be required to cooperate with whatever is decided in their absense.
The next part of the injury settlement process is the “discovery period”. In most U.S. courts, both sides of a case are required to discover and submit all forms of evidence before the actual trial commences. This means that both sides are privvy to the evidence that the other side has collected, and there are few surprises during the actual trial. There are three factors in the discovery period:
– Interrogatories are “questionaires” that both parties will answer based on the facts of the case. There are general interrogatories and special interrogatories; general being a form used for all personal injury settlements; special being forms generated for your specific case. You will be required to answer all of the questions to the best of your ability so that both sides of the case are detailed in full.
– Document Production is the process by which any written documentation pertinent to the personal injury case becomes accessible to both parties. Documents can include medical forms, witness accounts, accident reports and police reports as well as correspondence and computer files. In some cases, such as medical malpractice suits, the case files might be quite large, and require a long time to sort through.
– Depositions are interviews conducted by attorneys with witnesses and others who might have information valuable to the case. A court reporter records the entire interview, and depositions are available to both parties.
The Trial
Personal injury settlements are usually conducted in front of a jury, though some cases may appear only before a judge. There are several phases of a trial, and each is observed in a set amount of time. This might be the longest part of your personal injury settlement, but each phase is necessary to ensure the carriage of justice.
First, the jury is chosen. Attorneys from both sides are present during the jury selection, and each attorney is allowed a certain number of “cause” and “preemptory” challenges. A cause challenge is any reason that the juror cannot be objective in determining the outcome of a trial, while a preemptory challenge can be anything from gender to race to height in civil cases.
When the jury has been selected, the attorneys will give opening statements which describe the circumstances according to their clients. This will serve as an outline of the personal injuryÃ?¯Ã?¿Ã?½case for the jurors, and the plaintiff’s attorney normally goes first.
Next, witnesses will be called and cross-examinations will be allowed. All of the witnesses will give their accounts as to the injury or the damages that ensued, and the other attorney will be allowed to ask his or her own set of questions. This is the longest part of the trial, and can often be painful for the plaintiff.
Closing arguments come next, during which the attorneys sum up their perspectives on the case and plead their reasoning to the jury. Then the jurors will be advised of their jobs by the judge, and the jurors will be sent away to deliberate their decision. In most personal injury trials, the jury is required to be unanimous in their decision, though some states require only a majority of nine-to-three. If the jury is “hung” – meaning that no unanimous or majority decision was reached – then the judge declares a mistrial and the jury selection process will begin again, assuming the plaintiff wishes to try the case again.
Personal injury settlements are often long and painful, and it is the decision of every plaintiff whether it is worth the hassle. In the United States, jurors and judges alike are typically more inclined to rule in favor of the plaintiff, which gives good odds for victims of personal injury.
