Thoughts on the Processing of a Personal Injury Case

Over the past several years the point of these blogs has been to try to educate the consuming public, to those who might have a personal injury case or those wondering about the lawsuit/litigation process. As in any profession, there can be misconceptions about what happens. In the past I’ve discussed how long a case takes. Certainly there are no hard and fast rules on that. Another notion is that since we’re dealing typically with the law of negligence we ask several questions: What is the duty of care? Does the defendant owe a duty to the plaintiff? Was the plaintiff injured? Was the injury a proximate or legal cause of that negligence? Those questions of course need some elaboration and the facts have to fit into those legal constructs.

A client recently asked me if we have proven negligence yet? That case is still within its first year and there is no official time when you can say that you’ve proven negligence. You have a sense of it when it happens. Your lawyer will know it when he/she has gotten good admissions in a deposition or has seen some good paperwork that helps him/her to be confident that negligence can be established. But there is no red light/green light that will tell you that you have established negligence so now you can go on to damages.

Negligence and cases aren’t that susceptible to a rigid determination in that way, both liability and damages are ongoing and evolving. Certainly we know a serious injury is ongoing and evolving. Yet we still start the lawsuit process during that time because at the conclusion of the process we hope to have a reasonable projection of the client’s medical condition. This means knowing what the future will hold for the client in terms of the medical situation. This speaks to the damages aspect of the case.

In terms of negligence and the liability portion of a case, there is always more you can do to learn about the facts of the case. The ultimate goal is to be in a good position to present the liability portion. We know for example in a premises liability case that the law in Massachusetts is that a landowner owes a duty of care to all those lawfully on the premises. Consequently, in a premises liability case, we try to fit our facts and ultimately our damages into some sort of system that will allow for compensation.

In still other cases, the other side might try to present a new theory late in the “game.” An insurance company may think that if they simply get a statement that incriminates your client in some way that they may gain an upper hand. No! I say that is absolutely not true. If you have a client who appears to be honest, who perceived the event and can narrate it in a clear and believable way, then you indeed can refute that. After all, just because it’s said by the other side doesn’t it make it true and your client may be the best source of rebuttal. In the appropriate facts and with the appropriate client, the mere fact that one or two people disagree with your client may mean nothing. It’s a credibility contest and, as the law says, experts don’t decide cases, juries do. In the same way, lay witnesses don’t decide cases, juries do. If your client is credible, feel comfortable relying on your best source, your client.