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All personal injury lawyers may not do all of the above kinds
of injuries. Many lawyers limit the kinds of cases they do to
certain fields or eliminate certain types of cases. The above
is not intended to be an exhaustive or complete list of all possible
personal injury claims.
If you are injured and believe that the injury was not your
fault, you should call a lawyer and discuss it with him or her
to make sure that you are not missing something.
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Determining
Liability and “Fault”
“Fault” is negligence that causes an injury or damages.
Negligence is the failure to act as a reasonably careful person
would act under the circumstances. In Arizona we have what is
called “Comparative Fault”. Basically that means that
there may be any number of people or entities at fault, including
the Plaintiff, and the relative degrees of fault are entered
as a percentage of the total fault for the injury. One person’s
fault may be greater than that of another but the relative degrees
of fault must add up to 100%. The total damages are therefore
divided between the parties at fault. This means that the percentage
of damages attributable to the plaintiff, to persons who could
not be sued or collected from, or persons that, for any reason,
are excluded from paying their percentage of the verdict would
reduce the amount of damages that the plaintiff receives. Medical
negligence, product liability, bad faith, premises liability,
employment law, and many other areas of fault have their own
rules.
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Third
party liability, Construction accidents
and other on-the-job injuries
“Third party liability” is often missed. A lawyer
should be consulted right away if one is uncertain in any respect.
Third party liability can be any of the injuries listed above
and many that have not been listed. A good example of third party
liability would be where you were working at the time of your
injury, but someone other than your employer or a fellow employee
caused the injury. You cannot sue your employer or a fellow employee,
but you can sue the third party that caused the injury. These
cases are difficult. You will need the expertise of a lawyer
that understands both personal injury and workers’ compensation,
or two lawyers–one that understands personal injury and
one that understands workers’ compensation. Early detection
is essential so that immediate and aggressive investigation can
be accomplished. Evidence absolutely essential to your case is
often lost, destroyed or changed shortly after the accident.
Witnesses may disappear or lose part of their recollection of
the details of the accident.
To elaborate for the purposes of clarification, if a scaffold
erected by a company other than your employer caused you to fall
when you were working on it for your employer, the scaffold company
would be liable if they were negligent. Or if a medical doctor
treating you for your industrial injury was negligent in his
treatment of your work related injury, he would be a third party
and therefore liable.
It would be unwise to do these third party cases on your own
(without a lawyer) even if the case was simple — such as
being rear-ended by a third party. There are many problems. For
example, you cannot settle with the third party without the employer’s
insurance company’s consent. Any settlement should be worked
out so that both the workers’ compensation insurance company
and the third party’s insurance company are involved in
the negotiations so that the best results can be obtained for
the injured worker.
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What
to do after an accident
1. Talk to a lawyer right away. If you do not need a lawyer,
she or he should say so. Don’t wait until the medical treatment
is finished. Obviously you should take care of your immediate
medical needs before anything else. Your health comes first.
But once you are well enough to talk to a lawyer, you should
call one. Or, on your behalf, someone else could contact a lawyer
right away. This does not mean you must hire the lawyer immediately.
The initial consultation is free and therefore, without obligation.
You should find out what the lawyer thinks and see what he or
she recommends.
2. Should you talk to the responsible party’s insurance
company without a lawyer present? Doing so can create problems
later on. This topic should be one of the things to ask the lawyer
about during the first interview, whether it takes place on the
phone or in the lawyer’s office.
3. If possible get photographs or other evidence immediately.
Don’t change anything until you know for certain that it
is not important to your case.
4. Do not delay getting medical treatment if you need it.
On the other hand, do not seek treatment if it is not indicated
just because someone else may be liable for the injury. Treat
a possible negligence situation in the same way as you would
any other accident.
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Do
I Need a Lawyer?
Most lawyers provide free services at least for initial consultations.
The extent of these free services will differ among lawyers.
At my office consultations, booklets, advice and the answers
to your questions are free within reason. If I know the answer
to your question I will tell you. However, I will not research
or otherwise look up the answer. That would be too time consuming.
Most questions in workers’ compensation, personal injury
and social security disability that you would ask I can answer,
as long as they are general questions that apply to similar cases.
As to your particular case, many of those questions require knowledge
of the facts and information concerning your case. Most of these
questions no lawyer can answer until he or she has been retained
and is well acquainted with the case.
Do I need a lawyer or can I represent
myself? How can I afford a lawyer? If I hire a lawyer will I
end up with less money? These
are often a person’s initial questions.
You do not need a lawyer. You can represent yourself during
all phases of your case. Please keep in mind however, that insurance
companies have well trained adjusters who deal with these cases
all day, every day. Even though adjusters may have said or implied
that you will be treated fairly, their job is to the contrary.
They work for the insurance company. The company works for its
stockholders. They are very nice people but their job, duty,
and obligation is to pay you as little as they possibly can.
This will always be less than the case is worth. The insurance
companies also have lawyers who are highly qualified and know
this area of the law from the initial investigation to the final
appeal to the Supreme Court if necessary.
Lawyers who do personal injury work are paid on a contingency
basis. This means that they receive a percentage of the final
amount of money received when settled or tried. If they are not
successful they do not receive a fee. The costs are different
and they must be discussed with the attorney. The fee agreement
should also be in writing and discussed with the attorney so
that you fully understand it.
At least the first consultation is usually free. You should
talk over all aspects of the case during this initial consultation.
If a case is lost at arbitration or trial you will get nothing,
so you do not always get more money if you have a lawyer. Whether
a case should be settled or tried is the client’s decision.
However, one should usually follow his lawyer’s advice.
Other than the situation where the case is arbitrated or tried
the lawyer should always get you more money after his fee than
you could get by yourself. Of course there is an exception to
every rule.
Another aspect of the initial free consultation is that you
should get to know the lawyer that is actually going to be handling
your case. You need to be comfortable with your chosen lawyer,
his background and his ability to properly assess your case and
its value. It is important for you to realize, however, that
except in the small easy case, no lawyer can tell you what your
case is worth. Any formula that you may hear is nonsense. The
value of your case is based on jury verdicts or other decisions
in cases that are most comparable to yours. This cannot be known
until all the facts are established and known.
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Damages
The value of your case is based on other comparable cases.
What are compared are the negligence, you and the defendant,
and all the other aspects of liability or the perception of liability
and the damages of other comparable cases. Damages in a negligence
case include almost all that is suffered because of the negligence.
In rare cases it could include punitive damages. The following
is a partial list of possible damages that can be considered:
1. The nature, extent and duration of the injury.
2. The pain, discomfort, suffering, disability, disfigurement,
and anxiety already experienced, and reasonably probable to be
experienced in the future as a result of the injury.
3. Reasonable expenses of necessary medical care, treatment,
and services rendered, and reasonably probable to be incurred
in the future.
4. Lost earnings to date, and any decrease in earning power or
capacity in the future.
5. Loss of love, care, affection, companionship, and other pleasures
of the marital or family relationship.
6. The difference in the value of the damaged property immediately
before and immediately after the damage.
Obviously, which damages should be included and asked for should
be left to a lawyer. This list does not include wrongful death,
punitive damages, DUI, and many of the more complex areas of
damages. Our effort here is to give the general public an idea
of what we mean when we say “damages”.
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