Personal Injury Litigation Part II

Continued from: Personal Injury Litigation: Part 1

The Lawsuit at Trial

After the discovery process, the case actually moves into the trial stage. During this time, the plaintiff has the burden of proving all of the elements of his or her case.

In most civil suits, the plaintiff has the burden of proving the required elements by a preponderance of the evidence. This means he must prove that more likely than notall of the things he is saying are true and that everything happened the way he is asserting. This is a lesser standard than the criminal standard of beyond a reasonable doubt.

The defendant does not have the burden of proving that he shouldn't be held liable. He simply has to show that the plaintiff did not meet the burden of proving one of the required elements of the case.

For example, the plaintiff always has to prove that the defendant's actions were the cause of his or her injury. The defendant can thus argue that the plaintiff did not successfully prove causation. If the jury believes that the defendant is right and that the plaintiff did not prove causation, then the plaintiff will not win his or her case.

The Outcome

In most civil trials, a jury decides the outcome. Sometimes, however, a bench trial may be used if desired by the involved parties, and a judge will then make the decision on liability and damages. A jury or judge will weigh the evidence presented and use their discretion to decide who to believe when it comes to the facts in dispute. They will then determine if the plaintiff proved that the defendant should be held responsible for the injuries that occurred and, if so, what damages are appropriate to the plaintiff. If the plaintiff doesn't prove his or her case, then the jury will find that the defendant is not liable.

Regardless of who is deciding, the judge and/or jury must decide the case in accordance with the laws. For example, a jury might be sympathetic to a plaintiff who has been injured, but unless the plaintiff proved all of the elements of the tort that are required by the law to win the case, the jury cannot find for the plaintiff or award the plaintiff damages. Otherwise, the jury's decision may be turned over on appeal or the judge may issue something called a "judgment notwithstanding the verdict" to reverse what they have done.

Damages

If a jury decides that a defendant is liable, there are also laws in place that provide guidance in determining what damages are appropriate. Typically, such damage awards include coverage for:

• Medical bills
• Lost wages
• Pain and suffering
• Emotional distress

Punitive damages are allowed in almost all states, but usually only apply in cases where the defendant was especially reprehensible (such as intentional tort cases or cases where a defendant was grossly negligent). Wrongful death damages, including compensation for loss of companionship of the deceased victim, may also be appropriate in the event that the defendant's actions have led to death.

Juries may also be constrained in some cases by limitations on both non-economic and punitive damages. Sometimes, for example, even pain and suffering damages are limited to a set amount. These limitations often come in the form of tort reform efforts. When a jury awards damages that are too great to be reasonable, the damage award may be overturned on an appeal or by a judge.

Risks of Going to Trial

In addition to understanding the process of a trial, it is also important that both sides understand the risks. For the defendant, the major risk is that he or she has no control over what the jury will determine is an appropriate damage award. If the defendant settles, he has a greater chance to control the costs that will result. For the plaintiff, the major risk is that he or she will end up walking away with nothing. If he turns down a settlement offer because he believes he can get more in trial and then loses, he cannot go back and accept the settlement. A plaintiff should make sure he considers just how strong his case is before turning down any settlement award.

Trials can also be time consuming and expensive,particularly for a defendant, because a plaintiff's legal fees are normally paid on a contingency fee basis as a percentage of any damages the plaintiff is awarded.

The process of a personal injury trial is long and complex. If you are injured, it is always in your best interests to get a lawyer's help throughout this process. Your attorney can guide you through every step of the case, making sure your rights are fully protected and that you get the compensation you deserve.

Next Steps

17. Insurance Companies and Injury Claims
18. Get a Lawyer or Handle Your Own Case?
19. Personal Injury Laws by State

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