What is Personal Injury Law? Part II

Continued from: Introduction to Personal Injury

Plaintiff Files a Civil Lawsuit Against the Defendant

If a settlement isn't reached, the plaintiff needs to go to court to collect damages. While in rare cases a personal injury action can be filed in small claims court, usually these cases must be filed in a civil court that has an interest in deciding the case (jurisdiction). The court must have jurisdiction over the people involved and over the subject matter being considered.

A court usually gets jurisdiction over the people involved if the parties live within the state where the court is located. The court can also get jurisdiction if the accident happened within the state borders. Plaintiffs should be aware of these rules to ensure that they file the case in the proper civil court. State civil courts usually handle these types of cases.

When a plaintiff files a case, he also must state a legally actionable wrong. In other words, he has to explain what legal duty was breached or what the legal basis for the claim is. The plaintiff also has to be seeking some remedy the court can actually provide. A plaintiff cannot, for example, file a lawsuit against his neighbor for giving him dirty looks. Giving dirty looks isn't a legally actionable wrong and there's no damages that a court could or would award for it. If his neighbor runs him over, on the other hand, that's a legally actionable wrong.

The plaintiff has to file his or her case according to the rules of civil procedure in the relevant court. These rules are specific. They may even stipulate what font needs to be used on motions to the court. Because of the incredible amount of detailed rules and regulations associated with filing a claim, most plaintiffs need a lawyer to handle this for them. Plaintiffs also need to remember that the claim has to be filed within the statute of limitations or they will be barred forever from filing a claim.

The Defendant is Served with Papers and Given an Opportunity to Answer

Giving the papers to the defendant is referred to as "service of process." Usually someone official (like a sheriff or process server) has to give the papers to the defendant to ensure they actually receive them. The defendant then has to answer within a set period of time and show up in court when required to do so. If a defendant was properly served the papers and doesn't answer or come to court, a default judgment can be entered, which will mean the plaintiff will win automatically.

The Pre-Trial Phase Begins

During this phase, each side builds their case and collects evidence to support their case. This may involve "discovery," where information is exchanged between the plaintiff and defendant. Expert witnesses may be hired as well. Depositions (formal questioning sessions under oath about what is going to be said in the trial) may occur. Settlement talks may also continue during this time, even as the parties prepare their cases.

The Trial Occurs

The plaintiff has the burden of proving the required elements of his or her case. Exactly what this means he or she has to prove is going to differ depending on what the case is based on. For example, in a strict product liability case, a plaintiff doesn't have to prove negligence. On the other hand, a plaintiff does usually have to prove negligence in a car accident case, a slip and fall case, or a medical malpractice case.

Typically, there are four things a plaintiff has to prove:

• That a duty was owed
• That a duty was breached
• That the breach directly led to harm
• That some compensable injury resulted

If the plaintiff can prove these four things by a preponderance of the evidence, then the plaintiff can win his or her case.

A Verdict is Reached

In many cases, it is a jury that reaches the verdict. Sometimes, a case can be heard in front of a judge only. This is called a "bench trial." The role of the judge or jury is to decide first if the plaintiff has proven all the elements necessary for the defendant to be found liable. Once it is determined that the defendant should be found liable, the next step is the determination of what the plaintiff's damage award will be. The jury or judge will also be responsible for making this decision based on factors like the total cost of medical bills the plaintiff has incurred and the severity of the injuries or amount of pain suffered by the victim.

Personal Injury Law vs. Criminal Law

Reading through the discussion above and the details about the trial, it might seem as if this is similar to a criminal trial. In fact, personal injury laws are separate and distinct from criminal laws, although there may be some overlap in the types of behavior that can lead to civil and criminal litigation. For example:

• If a defendant assaulted a victim, a prosecutor might press charges and a criminal trial could occur.
• Based on that same assault, the victim of the assault could file a personal injury action and the defendant would then also have to face a civil trial.

While the same event could lead to two different legal actions, there are several important differences between personal injury law and criminal law to be aware of:

In a criminal trial, the action is brought by the state because the laws of that state were violated. In a civil trial, the action is brought by a private citizen.

When criminal laws are broken, the state has suffered a wrong independent of the one suffered by the victim. This is why prosecutors can sometimes press charges even when victims don't want them to (like in the case of domestic violence).

Personal injury lawsuits don't involve prosecutors and police. Instead, the injured victim in a personal injury case must go to court, file the proper paperwork and get the case started. The injured victim then has the burden of proving his case in order to win the right to collect damages.

In a civil trial, penalties are usually limited to monetary damages.

When someone is charged with a crime, they can be sent to jail and lose their freedom. This is not the case in a personal injury civil lawsuit. The penalties in personal injury civil suits are almost exclusively monetary. In some rare cases, a plaintiff might seek to stop a defendant's action (by getting an injunction) or to compel an action, but this is far more rare than a plaintiff seeking financial compensation. In any case, a defendant cannot go to jail for losing a civil case.

Personal injury civil lawsuits have a lesser standard of proof.

You've likely heard many times that a defendant must be "guilty without a reasonable doubt," in the United States. This is not the case in a civil lawsuit.

Because only money is at stake, rather than a person's freedom, there is a more relaxed standard for personal injury cases. The plaintiff has the burden of proving his case, just like a prosecutor does, but the difference is that he or she only must prove his case by a "preponderance of the evidence."

This means that if the plaintiff can show that more likely than not the defendant breached a duty, the plaintiff can win his case. This explains why OJ Simpson was not found guilty of murdering his wife in a criminal trial, but why he was found liable in a civil trial.

The defendant isn't provided with a lawyer in a personal injury case.

The Miranda Warning that a defendant has a "right to an attorney" is applicable only in criminal trials. In a civil case, if a defendant wants legal representation when a plaintiff brings legal action against him, he is going to have to pay for that lawyer himself. The court will not provide one for him.

How Common Are Personal Injury Cases?

Personal injuries are very common in the United States.

• The National Highway Safety Traffic Administration reports that in 2009, there were 30,797 fatal car crashes.
• Medical malpractice data is generally kept on a state level. In the state of Washington alone, for example, $208.3 million in damages was paid out in 2009 on 857 malpractice claims.
• In 2010, there were 34 fatal dog attacks in the United States and the total amount of losses caused by dog bites according to some estimates is over $1 billion per year.
• The National Safety Council reports that an estimated 9 million injuries occur each year due to slipping/falling.

These statistics indicate just how common personal injuries are and how many people in the US are affected by them each year. As such, it is essential that you know and understand what personal injury law is and how personal injury cases work so you can protect yourself in the event that you become one of these unpleasant statistics.

Next Steps

2. Types of Personal Injury Cases
3. Special Cases of Personal Injury
4. Property Owners and Injury Liability

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