Personal Injury Basics

New York & New Jersey Personal Injury Lawyer & Attorney

What You Need to Know About Personal Injury Matters in New York & New Jersey?

Personal Injury Law: The Basics

At any moment in America, millions of people are driving, walking, shopping, traveling, and working, so it is no wonder that accidents and injuries have become an inevitable part of life. But the fact that mishaps are fairly commonplace does not detract from the pain and confusion that can result when an accident or injury happens to you or a loved one. This is especially true when any harm could have been avoided if others had not acted carelessly. If you decide to take steps toward protecting your legal rights after an accident or injury, you may have a number of general questions about "personal injury" cases.

What is a "Personal Injury" Case?

"Personal injury" cases are legal disputes that arise when one person suffers harm from an accident or injury, and someone else might be legally responsible for that harm. A personal injury case can become formalized through civil court proceedings that seek to find others legally at fault through a court judgment or, as is much more common, such disputes may be resolved through informal settlement before any lawsuit is filed:

  • Formal "Lawsuit" Unlike criminal cases, which are initiated by the government, a formal personal injury case typically starts when a private individual (the "plaintiff") files a civil "complaint" against another person, business, corporation, or government agency (the "defendant"), alleging that they acted carelessly or irresponsibly in connection with an accident or injury that caused harm. This action is known as "filing a lawsuit". See below for more information on what a person filing a lawsuit usually must prove.
  • Informal Settlement In reality, most disputes over fault for an accident or injury are resolved through informal early settlement, usually among those personally involved in the dispute, their insurers, and attorneys representing both sides. A settlement commonly takes the form of negotiation, followed by a written agreement in which both sides forgo any further action (such as a lawsuit), choosing instead to resolve the matter through payment of an agreeable amount of money.

Proving Fault: What is Negligence?

In most claims that arise from accidents or injuries -- from car accidents to "slip and fall" cases -- the basis for holding a person or company legally responsible for any resulting harm comes from a theory called "negligence."

Generally speaking, when someone acts in a careless way and causes an injury to another person, under the legal principle of "negligence" the careless person will be legally liable for any resulting harm. This basis for assessing and determining fault is utilized in most disputes involving an accident or injury, during informal settlement talks and up through a trial in a personal injury lawsuit.

Specifically, in negligence claims the plaintiff (the person injured) tries to show that the defendant (the person supposedly at fault):

  • Owed a legal duty of care to the plaintiff under the circumstances; and
  • Failed to fulfill ("breached") that legal duty through conduct or action (this can include a failure to act); and
  • Caused an accident or injury involving the plaintiff; and
  • Harmed or injured the plaintiff as a result.

To illustrate how these four elements work, take a hypothetical personal injury case: Don speeds through an intersection against a red light and hits a vehicle driven by Pat, who had the green light and the right of way. In a personal injury dispute based on negligence, Plaintiff Pat will need to show that:

  • As the operator of a car on public streets, Defendant Don owed all other drivers (including Plaintiff Pat) a legal duty to drive with reasonable caution under the circumstances; and
  • By speeding through the intersection and running the red light, Defendant Don failed to fulfill ("breached") that legal duty; and
  • In failing to fulfill his legal duty to drive with reasonable care under the circumstances, Defendant Don caused his vehicle to collide with Pat's car; and
  • Due to his collision with Don's car, Pat suffered injury (property damage and physical injury)

Resolution Before Trial: Settlement

The majority of legal claims arising from accidents or injuries do not reach a civil court trial -- most are resolved earlier through a negotiated settlement among the parties. An informal settlement can even take place before any lawsuit is filed. Through settlement, the plaintiff in a personal injury case agrees to give up the right to pursue any further legal action in connection with the accident or injury, in exchange for the payment of an agreed-upon sum of money from the defendant or an insurance company. In rare cases, instead of paying money the defendant will agree to perform (or cease performing) a certain action.

If you are considering settling a legal claim after an accident or injury, or if you have received a settlement offer, you should talk to your attorney and receive his or her thorough assessment of the case and the prospects for settlement. Consider the following points:

  • Amount he or she thinks the case is worth in a range of dollar amounts.
  • Verdicts and settlements in similar cases.
  • Chances of winning at trial.
  • Unfavorable publicity for either side (civil court trials are open to the public and media scrutiny).
  • Amount of personal information that could be revealed at trial or through further discovery.
  • Possible disclosure of business information or trade secrets.
  • When the case is likely to be called for trial.
  • Practical difficulties in trying the case.
  • Weaknesses in your evidence.
  • Weaknesses in your opponent's evidence.
  • The amount of the defendant's insurance coverage.
  • The defendant's own monetary resources.
  • The defendant's lawyer's negotiation tactics (your lawyer may have negotiated with the lawyer before, or has talked to other lawyers to get an idea of what to expect).
  • The extent to which your opponent is likely to play "hardball."
  • If you are the plaintiff, ask how much of the settlement proceeds will be applied to your lawyer's fee and your expenses.
  • If you are the plaintiff, ask how the settlement payments will affect your federal and state income taxes.
  • Talk about what you're willing to concede in order to get the case settled.
  • Discuss the minimum amount you will accept.
  • Consider the possibility of a partial settlement, that is, settling the easy issues first while you continue to negotiate the more contentious issues.
  • If you are the plaintiff, consider accepting a remedy other than money.

Where Are Personal Injury Lawsuits Filed?

Personal injury lawsuits usually fall under the authority (or "jurisdiction") of state courts in the county where the injury occurred, or where those involved (the "parties") in the incident are located.

An exception to the rule of state court jurisdiction arises when parties in a personal injury case live in different states. Such a personal injury case may be filed under federal jurisdiction in the federal trial courts (called U.S. District Courts), or the case may be moved there if it was originally filed in a state court. Issues of jurisdiction can be tricky for those unfamiliar with the legal process, but an experienced attorney can sort through any problems that may arise in deciding where to file a lawsuit.

Where Are the Laws that Govern Personal Injury Cases?

Unlike other areas of the law that find their rules in statutes (such as penal codes in criminal cases), the development of personal injury law has taken place mostly through court decisions, and in treatises written by legal scholars. Many states have taken steps to summarize the development of personal injury law in written statutes, but for practical purposes court decisions remain the main source of the law in any legal case arising from an accident or injury. (Note: in some types of injury cases, most notably those arising from car accidents in which a state vehicle code section was violated, statutes can be used to help establish fault for an accident or injury.)

To understand how pre-existing case law (or "legal precedent") might be used to strengthen an injury case, suppose that you are involved in an accident or are injured, and decide to hire an attorney to protect your legal rights. During settlement negotiations with insurers or opposing counsel, and especially in any legal filings with the court, your attorney will make reference to (or "cite") prior cases in which the courts in your state decided on issues like fault or damages, in ways that are favorable to your position. For example, suppose you have been injured in a "slip and fall" on an uneven sidewalk outside your apartment building. In seeking to prove that the owner of your building is at fault, your attorney might cite a case in which your state's supreme court held that owners of residential buildings have a legal duty to ensure that the premises surrounding the building are properly maintained.