2008 October Archive

Requirement #4: Be able to obtain the money owed from the responsible party/parties

By Personal Injury Lawyer on October 29, 2008

Mark Breyer, Arizona personal injury attorney, continues his discussion of requirements that are incumbent upon any personal injury plaintiff to prove to win their case.

This “fourth part” of a personal injury case is not written anywhere in the law. It is not in any textbooks we read in law school, and it is rarely covered in any of personal injury conferences. It is not usually covered in the conferences where we have spoken to other lawyers, nor in the conference we have attended. However, this requirement is often as important to the injured person as the first three elements. Someone can prove they were badly injured due to the negligent actions of another, prove they were seriously hurt, and prove the extent of those injuries. They can receive a fair and just verdict awarding reasonable damages to compensate them for the effect the personal injury had on their life. The judge can sign the final paperwork, which is called a judgment, and make the verdict official.

The injury victim now has a signed judgment awarding them money against the at-fault defendant. It is now a matter of law that the defendant must pay every penny of this judgment. Now, what? Well, if that defendant has no money and no assets, that judgment is not worth the paper it is printed on. The phrase “you can’t get blood from a turnip” often comes to mind. Basically, the fourth element that we discuss with our potential clients is the need to be able to ensure that a judgment against the at-fault defendant will result in actual benefit to a victim. Otherwise, the entire claim and litigation process – the time, effort, and energy invested by the client and his lawyers is a waste.

Requirement #3: Prove the extent and duration of the injury and any damages that arose as a result

By Personal Injury Lawyer on October 27, 2008

Mark Breyer, Arizona personal injury attorney, continues his discussion of requirements that are incumbent upon any personal injury plaintiff to prove to win their case.

Proving the extent and duration of an injury can be the most complex part of a personal injury claim. Often times, the biggest effect an injury has on a person is the physical limitation caused by the pain they experience.

As Phoenix personal injury lawyers, we have grown to hate the words “pain and suffering” because this phrase has come to have a negative connotation to describe a person who has filed an injury claim as a money-hungry, lawsuit happy plaintiff. Yet pain is often very real and can be devastating to the injured person.

What is difficult in proving an injury claim is that pain cannot be seen, cannot be heard, and cannot be measured. Two people can have identical injuries, but one person is able to still work and live their life, while the other person remains bedridden. Whether this differing result from the same injury is due to pain tolerance, luck, determination, or exaggeration varies tremendously. Yet, somehow, an Arizona personal injury plaintiff must prove that his/her loss of enjoyment of life is the result of the injury, not a lack of determination to get better or, far worse, a desire to use a lawsuit to get money that is undeserved.

In addition to proving the extent of the injury, the duration of the injury must be proven. In other words, it is our job to prove how long an injury will last and what affect it will have on our client’s life. This is more difficult when you consider the trial of every client’s case is a one-time event. There is no mechanism in our system of justice to return in the future and see how the victim is handling the injury years later. Thus, we must prove something that cannot be known with certainty: the future. We “prove” the future outcomes for our clients by comparing them to others who have previously suffered similar injuries and examining medical documentation. If you think this can often be difficult, and sounds like an inexact science, you are correct.

Requirement #2: Prove that the negligence/incident caused an injury

By Personal Injury Lawyer on October 25, 2008

Mark Breyer, Arizona personal injury attorney, continues his discussion of requirements that are incumbent upon any personal injury plaintiff to prove to win their case.

Fortunately, most negligent acts do not result in an injury. It is also fortunate that even where an injury occurs to an innocent person, and even where that injury was caused by someone else’s neglect, the injury is often minimal. Most injuries that are inconsequential are not worthy of bringing an Arizona personal injury claim.

To have a valid personal injury claim, it is not enough that a negligent act caused an injury. Instead, the victim must be able to prove that he/she suffered an injury as a result of another’s negligence. While the allegation of a new injury (or aggravation of prior injury) must be true, it must also be able to be proven with evidence.

We frequently get calls from people that were involved in an Arizona auto accident caused by the negligence of someone else. Though these individuals were not injured, they are understandably angry that their lives were impacted by another’s carelessness or, sometimes, outright recklessness. We are asked by these people whether they can bring a personal injury claim. The answer is no.

Of course, to whatever degree their lives were impacted by the event, they have a theoretical right to make a claim. The defendant or insurance company for the defendant may be willing to offer a small settlement in order to close the claim to and eliminate financial exposure for a belated injury claim. However, to have a personal injury case one must be able to prove an injury resulting from the initial incident. If someone cannot prove they suffered an injury, they have not met this necessary element of a personal injury claim.

This type of question from someone who was not injured in an incident most often takes the form of someone who was involved in a Phoenix car accident. The people who raise this question are usually relieved that they were among the lucky ones who were not hurt. However, they may need their car repaired, or need a rental car, or have a need to get the car declared a total loss so they can purchase a new car. Of course, the law does provide protection to someone with car damage or any type of property damage, due to another person’s negligence; however, this is not really a “personal injury” action, but a “property damage” claim.

The insurance industry – both in the insurance policies they write and in the way they process the claims – usually treat property damage separate from an injury claim. Anything related to a rental car, items damaged in a car at the time of an incident, loss of value to a vehicle, and so forth often are handled as distinct claims from an injury claim.

From a practical standpoint, it is usually lawyers that handle personal injury claims that also take care of these property damage claims for their clients. The legal issues are similar, the factual issues are similar, and it simply makes the most sense for one law firm to handle these issues for their clients.

However, it is important to understand this distinction between a personal injury claim and the related property damage claim: if no injury can be proven, no “personal injury” action exists.

Requirement #1: Prove a person/party was negligent and responsible for the incident

By Personal Injury Lawyer on October 23, 2008

Mark Breyer, Arizona personal injury attorney, continues his discussion of requirements that are incumbent upon any personal injury plaintiff to prove to win their case.

A personal injury claim only exists when someone other than the injured person recklessly or negligently causes an injury to the victim. For instance, over the years we have talked to people who wanted to know if they could make a claim where they were injured in an Arizona auto accident that they, themselves, caused. By way of example, one mother called us after her daughter negligently drove into the rear end of another vehicle. The mother wanted to know if her daughter could make a claim through her insurance policy as a result of the medical bills incurred by her daughter.

We explained that it is possible that the daughter may be able to receive reimbursement of her medical bills from their own insurance company, depending on which insurance coverage had been purchased prior to the incident. However, the first step in a personal injury claim begins with being able to prove that another person was negligent. Well, in this example there was someone that was negligent: the mother’s own daughter. An injury victim that was the cause of her own injuries has no personal injury claim. Since no one else caused the injury, the potential “case” would not make it past this first requirement in the analysis.

Personal Injury Claims: Failing to Recognize When They Exist

By Personal Injury Lawyer on October 21, 2008

There are many types of injuries that are suffered as a result of someone else’s negligence. However, not every injury is meant to be compensated under the law. In fact, although we have no statistics on the subject, it is probable that most injuries are not compensable under the law.

Regardless of the type of case, most Arizona personal injury cases have specific requirements that must be met under the law in order to have the opportunity to obtain compensation for the injury victim. What evidence is required under the law to meet these criteria can vary widely depending on the type of personal injury case, but these different considerations must always be taken into account. These requirements that are incumbent upon any personal injury plaintiff to prove include:

1. prove a person/party was negligent and responsible for the incident;
2. prove that the negligence/incident caused an injury;
3. prove the extent and duration of the injury and any damages that arose as a result; and
4. be able to obtain the money owed from the responsible party/parties

As each of these elements are vital to the ability to pursue a personal injury claim. Although these criteria are each distinct and necessary elements of an injury claim, remember that this is not a situation where “most” is good enough. Either all four requirements must be met or no recovery is likely to occur.

Personal Injury Victims: The Honest, Law Abiding Citizen

By Personal Injury Lawyer on October 18, 2008

More often than not, it is the most honorable, sincere, compassionate, law-abiding citizens that find themselves being denied justice by our current legal system in Arizona personal injury cases. Why? It is because usually it is the honest, trusting citizens that wait the longest to consult with an attorney. These are the people who do everything that the insurance adjuster working on behalf of the at-fault defendant asks of them, not realizing that their trust is misplaced. They often start with no intention of even considering hiring a lawyer or filing a lawsuit, and they often suffer greatly as a result of this otherwise admirable mindset.

If victims knew how our legal system worked and understood the process of pursuing an injury claim, these well-intentioned victims could increase their likelihood of a fair settlement or favorable jury verdict. If people were simply provided valuable information and warned of the potential pitfalls, they are more likely to increase the chances of a just result for their injury claim.

We know, from our many jury trials and successful settlements for our Arizona personal injury clients that a fair jury verdict in favor of the injury victim can provide needed medical bills, reimbursement of money from a job that can never be performed again, and an overall return to something approaching the quality of life experienced before the injury. A jury verdict for the plaintiff, in particular, is something that announces that the injury victim – our client – has overcome all of the hurdles and built-in impediments to recovery, survived all of the challenges, and come out with a fair result.

Personal Injury Cases & Our Legal System

By Personal Injury Lawyer on October 15, 2008

There are times when, due to our frustration with the hurdles that are placed in front of deserving people, we voice disgust at rulings, laws, and verdicts that favor defendants in Arizona personal injury cases. However, we strongly believe that an innocent defendant should prevail. A false claim of injury or exaggerated claim by an alleged injury victim should be rejected. We are in favor of justice in the legal system. In our view, however, justice is often denied to the person who was injured and to whom fair compensation should be awarded under the law.

A defense verdict for a seriously injured Plaintiff, who is an innocent victim of the recklessness of another, is neither justifiable nor fair. Unfortunately, our current legal system often rewards the negligent party and punishes the injured victim. We hope to help injured parties avoid making crucial mistakes in pursuing their injury claim so that if their case goes to trial, they hear:

“We the jury duly empaneled and sworn, upon our oath do find in favor of the Plaintiff.”