Personal Injury - Negligence Introduction
With having a new Blog and basically practicing three areas of the law, I have spent the majority of my writing time concentrating on Criminal Defense. Now that the Blog is up and running and I'm starting to get comfortable with this, I'm going to begin writing on the other two areas that the firm practices, which are Personal Injury and Real Estate Closings.
Negligence - Three components of Personal Injury & Wrongful Death
Personal Injury falls into that specific legal arena of Negligence. The basic definition of negligence is when a person fails to exercise the necessary degree of care that a reasonable person would exercise. Its also referred to as the Standard of Care. In simple terms, it means that we all have a responsibility in society to protect each other. That is, we are not allowed to be careless to the extent that a particular careless act could hurt another person.
Negligence, Personal Injury & Wrongful Death with car accidents
Probably the most common form of negligence that results in a Personal Injury, would be car accidents. That is for two reasons. One, there are literally millions of autos on the road in this country and any given moment. Secondly, a car is a huge piece of metal weighing thousands of pounds. Anytime something that big and heavy hits a person, whether that person is in another car or not, there is usually going to be harm.
From a legal standpoint, lawyers look at three things on each case in order to assess the merits of the particular case. This is important because one of the first things that client will ask, is "what is my case worth." The three major considerations of any Personal Injury are liability, damages and recoverability. Each aspect is as important as the other two. If one is totally non-existent, then the whole case fails. I'll explain these with respect automobile accidents, since those are probably the most common forms of Personal Injury cases.
Liability
Liability boils down to whether the other person is responsible for your injuries. When we ask this question we are simultaneously asking if liability can be proven. Whether or not there are any proof issues with liability can have a direct affect on the value of the case. Ultimately what we do when we seek to settle a Personal Injury case, is we are comparing the amount the we can settle for to what we reasonably predict that we can get if we go to trial. That is an extremely important evaluation for this reason. If for example it is 100% clear that the other driver ran the red light, then for liability purposes, the case has full settlement value. However, say there is a witness that says he had the red light and there is another witness who says he had the green light. Now you have a liability issue and it now becomes the lawyer's job to overcome it.
To overcome any such issue, we need to fully investigate the accident and collect the necessary evidence to show first the insurance company that the other driver is liable, and two if it become necessary to take the case to trial, then to show the jury that he/she is liable. We have in the past retained a Traffic Reconstructionist Expert to testify on the case that our client was not at fault and the other party was. Recently this was successfully done on a Wrongful Death case that I went to trial on in Conway, South Carolina. Other times we retain a private investigator to track down witnesses. We also use subpoenas and depositions to formally gather evidence from witnesses and third parties. All of these techniques and others is how we convince the insurance company to settle. And if they don't, then these are some of the tools we use to win the case in court. There is an old rule of thumb that if you want to settle a case then you prepare for trial.
Damages
The next one is damages. This is a legal term that covers a wide variety of things such as medical bills, lost wages, all kinds of out-of-pocket expenses, future lost earnings, scarring & disfigurement, loss of consortium, disability & impairment ratings, loss of earning potential, punitive damages, pain & suffering, plastic surgery, medical payment, future medial treatment, and the list goes on an on. Many of these are called Compensatory Damages. From a legal standpoint, the plaintiff's lawyer is allowed to seek a wide array of things that the individual has lost, or will lose. And then there is those damages that are not based on what the plaintiff has or will lose, such as punitive damages, which are designed to punish the at-fault driver for having committed for example what is legally phrased as "gross negligence."
The ability to recover monetary damages
The last aspect of the three is Recoverability. That is a term that is frequently uses, even though it does not pass spell check. So forgive me if there are any English majors reading this. That amounts to where the money is. The first source is the driver's insurance policy. If necessary we look to the other driver's personal assets. Usually however, there is insurance. State law requires that all vehicles on the road be insured. Then the law allows us to file claims on policies that are not related to the accident. This process is called "stacking." That is where for example we file a claim against the at-fault driver's policy and we exhaust it. However, that particular policy was not sufficient to cover the damages in the case so we are then allowed to purse an Under-insured Claim. There is also what is called, "Uninsured Claims as well. These are commonly referring to as UIM and UM claims. Believe it or not, that can involve policies of vehicles that have to relationship to the other driver or even to the accident. That becomes complicated and can involve a number of policies for a given accident. The law recognizes that not all policies will be enough on all cases and therefore allows lawyer to "stack" policies.
Our firm is located here in Myrtle Beach, SC, which is in Horry County. Myrtle Beach has a high number of auto accidents and Personal Injury due to the tremendous amount of traffic in this area. And sadly enough, that includes Wrongful Death, which is the term for when someone dies from another persons' negligence.
This is just a very basic overview. As this blog continues I will be elaborating on all of these in more detail.
Not all car accidents are the same. Especially when it comes to these three components as explained. Any liability issue can be explained by the attorney and we can show you how to overcome any issues. Sometimes the police make a mistake and they decide that the wrong person was at fault. They may have given you a ticket when in fact it was the other driver that should have been ticketed. When that happens we will sometimes fight the ticket, which opens new doors with the insurance company.
The damages can greatly vary as well. Insurance companies can be very difficult to deal with on this component and often obtaining the right medical documentation from the doctors can make a big difference. If necessary, we will use depositions to overcome this. There are other ways and we need to see what your particular damages are in order to advise you.
As far as a recovery, we can isolate the applicable insurance policies and we know how to put in the claims that will compensate you fairly. Only we can do this, not the insurance companies. It is a guarantee that the insurance company is not your friend when you try to get money from them. They may act like they are, but when it comes to signing that check, they are not.
