Imagine a stool with four legs. Each leg must be strong enough to support a lot of weight. If one leg is weak, the whole stool will break. Even if it does not break, the other legs must be stronger to make-up for the weak leg. Personal injury case are very heavy. Much time, effort, emotion, and expense goes into each case, especially when it comes time to file a lawsuit and prepare for trial.
When I started practicing law, a wise mentor told me that every personal injury case needs to be have three major components: liability, collectability, and damages. Since then, I have come to learn that there is a fourth major component, the credibility of the injured party. Now, I tell clients and attorneys that do not handle accident cases that these four legs are essential to building a stool upon which an injury case will rest.
You may ask what do I mean when I use these terms? Here is a simple explanation. The first leg, liability, is simply who is at fault. Or, put another way, is there somebody or something that clearly is responsible for your injuries? If a personal injury case cannot be settled, a jury or judge will make a decision. If you cannot show fault pretty clearly and, instead, have to dance through hoops to show an injured party is not to blame for his or her own harm, the value of the case is diminished. Most of my automobile accident cases involve rear-end collisions. Many also involve left turn failure to yield cases. Some involve running red lights and stop signs.
The second leg of the stool is collectability. This term refers to available insurance that covers the wrongdoer(s) and the injured person. It also refers to assets of the defendant to "go after" if there is inadequate or non-existent insurance coverage. All avenues of insurance must be pursued, including the defendant's bodily injury liability coverage, the injured party's uninsured motorist coverage, medical payments coverage, excess lines coverage, umbrella coverage, homeowners' coverage (in certain cases), and uninsured motorist insurance of the injured party's resident relatives.
Damages is the third leg of the stool. This includes medical bills, lost wages, permanency of the injury, pain & suffering, and diminished earning capacity. In catastrophic injury cases, these damages can include home modifications, life care planning, attendant care, etc. Perhaps the most important component of damages is causation. This means simply is the injured person's medical condition related to the incident in question or something else. Are there pre-existing medical issues? Was the car accident really serious enough to cause severe and permanent injuries? Was the person honest when revealing their prior medical history to their doctors. Another important question is how should an injured party be compensated beyond medical bills and lost wages. I have employed certain methods which I will discuss in the future.
The fourth leg of the stool is the credibility of the injured party. This is especially important as we live in an era where insurance companies have done a good job as convincing the public there are too many frivolous lawsuits, especially in the area of personal injury. When an injured victim walks into court in the present climate, he or she must overcome this stigma before even a word is said about the case. The jury is sizing-up plaintiffs with notions of lawsuit abuse in their minds more now than ever. In my opinion, my client must be presentable, believable, and likable in order to maximize their chances of prevailing.
A good book written on the subject of why juries decide is written by David Ball of North Carolina. I keep a copy on my bookshelf and, in fact, it is one my top 10 books. The book, called David Ball on Damages, can be found here.
