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Message #701 Personal injury law

mp3 #701 Personal Injury Law (mp3 file)


Personal injury law protects your interests if someone wrongfully hurts or kills you, or wrongfully damages your property. Lawyers call this area of law "tort law".

When is injury considered wrongful? Personal injury law protects you when the person who injures you or your property acts "intentionally" or "negligently". These terms have specific legal definitions. The most common type of personal injury lawsuit that people think of involves auto accidents. However, a personal injury lawsuit may be brought when a defective product injures you, or a dog bites you, or you fall on someone's property, or your reputation is lowered due to a published false statement, or if a store detective stops you for suspected shoplifting. Even if someone hits you as a practical joke, you may be able to sue for battery. However, it is important to note that not everyone who suffers an accident and is injured can sue: they must show that the person they are suing is responsible for their injury.

When is Someone Legally Responsible for your Accident? Legal responsibility (referred to as "liability") is based on a few common sense rules. Most accidents happen because someone was unreasonably careless (or negligent) in harming you. In most cases, the law requires the person who was negligent to compensate the injured person for his or her injuries.

Here are a few examples of possible liability:

For instance, if an employee causes an accident while working, the employer may also be legally responsible for the accident.

Or, if an accident happens because property is poorly built or maintained (such as a poorly lit parking lot or a broken elevator); the owner of the property is probably liable, even if the owner did not create the dangerous condition.

Or, if an accident is caused by a defective product, the manufacturer and the seller of the product are liable even if the injured person cannot show how the defect happened or who was careless. The law presumes liability in these cases, and refers to this concept as "strict" liability.

The injured person can be compensated even if he or she was also negligent, but the injured person can only collect the percentage of her costs caused by the other person.

For example, if you are in a car accident in which you were speeding and another car made an illegal turn and hit you, a court might decide that you were 30 percent at fault and deduct this amount from the other driver's liability. (This concept is referred to as "comparative negligence. ")

However, the person who causes an accident may not be liable if the injured person was someplace he or she was not supposed to be (such as breaking into a home), or should have expected the kind of activity that caused the accident (such as getting hit by a baseball at a baseball game).

What Happens When an Accident Involves More than Two People? Many accidents involve the carelessness of more than one person. You may bring an action against every person who caused your injury. For example, an automobile accident may involve several drivers not paying attention. All of those who are negligent are responsible for compensating the injured person. If you sue only one person, that person must pay the full amount. If he or she wishes, the person who was sued can sue the other negligent people and make them pay their share. However, the law does not allow you to collect more than once.

What are the Time Limits for Filing a Personal Injury Lawsuits? There are certain time limits that govern the period during which you can bring a personal injury lawsuit. The law refers to these time limits as "statutes of limitation". For example, for some types of personal injury cases, you only have one year from date of the injury to file a lawsuit, or one year from the date the injury was discovered (if it wasn't immediately discovered) to file a lawsuit. Since different statutes of limitation apply to different types of personal injury lawsuits, it is important to talk with a lawyer, who will be familiar with the statutes, as soon as you receive or discover the injury.

Are There Other Circumstances When You Should Consult with a Lawyer? In most cases, an injured person does not have to sue to be compensated for his or her injuries. If someone who caused the accident has insurance, the injured person can usually make a claim against that insurance policy. Although this is difficult at times, it can usually be done without the assistance of a lawyer.

However, if you have been injured, the following list are some of the types of cases that attorneys may be interested in pursuing: accidents that cause long-term, severe, or disabling injuries, or large financial loss; medical, dental, and legal malpractice cases; cases involving toxic exposure; cases involving defamation of character that caused financial detriment; Sexual Assault Cases; and Insurance Bad Faith Cases.

If you are not sure whether you have a claim, you may wish to consult with a lawyer. Tell the attorney everything you can about your accident or injury. Supply all available documents to your lawyer. Police reports are available when there has been an auto accident, fire, or assault. These reports may contain eyewitness accounts and details about the conditions surrounding the incident. Copies of medical reports from doctors and hospitals will describe your injuries. The more facts you give your lawyer, the easier it will be for your lawsuit.

After considering all the facts you provide, the lawyer will be able to assess whether you have a case. Even if you do have a legitimate legal claim for damages, the attorney may determine that the monetary worth of your case is outweighed by the costs to pursue the claim. Not all attorneys have the same opinions, practices, or fees, so it may be advantageous to seek the opinion of more than one attorney.

What Kind of Legal Fees Should You Expect In a Personal Injury Lawsuit? Personal Injury lawyers generally charge clients on a "contingent-fee" basis. That means you have to pay attorneys' fees only if you win your case. However, if you lose the case, you still may have to pay your lawyer's expenses incurred in the investigation and litigation of your case. If you win, your lawyer would then take an agreed-upon percentage -- usually one-third -- of the total amount recovered. Make sure that you sign a written retainer agreement with your lawyer. Writing the details down should clarify the agreement and lessen the potential for problems down the road. For more information on fee agreements with lawyers, view SmartLaw Message #120.

How Will Your Personal Injury Case Be Resolved? Your lawyer and the lawyer from the opposing side often settle personal injury cases out of court, with your consent. It is important that you receive advance notice of any settlement in writing. It is up to you to decide whether you agree to the settlement. Some personal injury cases go to trial. A jury decides nearly all such cases that proceed to trial.

What Will You Get if You Win Your Case? If you win, the court or the jury will award you money, referred to as "damages", as compensation for your injuries. That amount will include such expenses as your medical bills and any wages you may have lost when you were out of work because of your injury. The damages also might include your future wage loss and physical pain and suffering. In addition, you may receive damages for any physical disfigurement or disability that resulted from the injury.

What If You Lose Your Personal Injury Case? The type of fee arrangement that you made with your attorney will determine what fees you owe the attorney. Sometimes, you will only have to pay for the costs incurred in pursuing your claim. These costs might include court filing fees; payments to investigators, court reporters, and expert witnesses; copying expenses ... and so forth. Sometimes, a fee agreement may ask for the client to pay for some of the attorney's time spent in working on the case. Attorneys determine fees on a case-by-case basis, so it is imperative that your reach a clear understanding when you first hire the attorney about such fees and who will be responsible for them. Again, this should be spelled out in a written agreement made at the beginning of the case.

For information about auto accidents, review SmartLaw Message #702. For information on Medical and Legal Malpractice, review Smartlaw Message #703. For information about Libel and Slander, review SmartLaw Message #723. To hear a listing of all our Legal Information messages dealing with personal injury claims, review SmartLaw Message #700.

The text for this message is based on information from the American Bar Association's self-help book called, "You and the Law", and from Nolo Press's "Pocket Guide to California Law".

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