A personal injury case starts with an event. It might be an event in time like a car crash, or a set of facts that cause someone harm like an exposure to chemicals over time. A personal injury case involves a physical injury to a person. Many personal injury cases are based on negligence which is a cause of action based on the rule that one must be reasonably careful at all times. The rule of reasonable care applies at all times.
Rules involving a car crash:
- look where you are going
- if you can’t see for whatever reason, don’t drive forward into what you can’t see
- don’t crash into a stationary object
- don’t hit a pedestrian even if they are in the road
- don’t hit a bicycle driver even if they are in the road
- don’t go so fast that you can’t stop within what you can see
- don’t go through a light that is red
Rules that apply to making products such as cars, toys, tires, drugs, medical devises, or any product.
- When you make a product, test it before you sell it to make sure it is safe
- When you make a drug that has a side effect, tell the user of the drug of the side effect
- When you make a drug that has a known side effect of death or serious disease, don’t conceal that side effect when you market it to the public
- If you can build the product safer for no additional cost, build it safer
Most laws require people to take reasonable steps to avoid harming another person.
After an event occurs that causes someone harm, the next step in a personal injury case is investigation, and documentation. Some cases are simple, and some are complex so the amount of investigation depends on the facts of the particular case. Typically, when lawyers are investigating a case they will investigate the facts of the case, theories of liability, insurance, and damages.
In the early stages of the case the defendant’s insurance company in notified of the case. They will open a claims file, and will assign an adjuster to the case. The adjuster is the employee for the insurance company who “adjusts” the case. This means they try to pay out as little as possible on the claim. Their job is to save their employer—the insurance company, money.
After the case is developed, and the information is provided to the defendant, the defense will evaluate the case. The adjuster will review the materials with the defense attorneys, and if the parties can agree to settle the case, then the case can be settled at that time.
If a case cannot be settled for any reason, a lawsuit is started and the case proceeds through the court system. The plaintiff states his or her claim in a paper called a “complaint.” The defendant states its side of the story in a paper called an “answer.” The parties exchange more information through the process called “discovery.” After the discovery process the case is ready for trial. A trial typically ends the case unless, of course, someone appeals.
At any stage in the case, the case can be settled. Of course, it takes both sides to agree.
One unfortunate part of the process is that the defendant’s insurance company typically has little incentive to settle a case except when a trial is just about to start. Why would they settle, when they can simply keep their money in the bank earning interest? Therefore, many cases go through the entire process, and get resolved around the end of the process. Overall unfortunately the process can take 2, or 3 years, or sometimes more.