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Kevin O'Keefe Jan. 13, 2013

By Kevin O’Keefe, trial lawyer for 15 years, representing ordinary people, with emphasis on personal injury claims.

Being the victim of another’s carelessness is bad enough. The only thing worse is not having a clue about the law and the process of righting the wrong, so to speak.

The law is not complicated. There is the Trinity of all personal injury claims: liability, damages, and a source of collection. You need to make all three work for you or your claim is not going to fly. There is no such thing as the perfect case. There is always one of the three you struggle with more than the other two.

Liability means fault. Who is at fault? Who caused the accident and resulting injury? In the vast majority of cases, it is a question of negligence. If someone acts with less care than a reasonable person would have under the circumstances, that’s negligence. No one has to be an evil person or intend the harm—if they were not as careful as they ought to have been that’s enough.

More than one person may be negligent. In which case the negligence of each person is compared. If the injured person is a percent at fault, their damages may be reduced by this percentage of negligence.

Second is damages. We have a society of law and order. If someone is negligent and they cause injuries to another, the law says they must be accountable. An innocent victim of another’s carelessness is entitled to receive fair and adequate compensation as damages.

What is fair and adequate varies dramatically from case to case. The value of the case is determined by a trial lawyer based on the strength of the team of lay and expert witnesses she assembles. The lawyer determines the value based upon what she expects a reasonable jury to award as fair and adequate compensation.

Damages include, among other things, past and future medical bills, lost wages, loss of future earning capacity, and past and future pain and suffering for the physical and mental anguish experienced.

The source of collection is usually the other person’s insurance company. If the other person does not have insurance or adequate insurance, the source of collection may include the injured person’s own insurance company in the case of a car accident. In some cases, there is no insurance. The person responsible must then have sufficient assets to collect from. I have told folks with a good liability and damages case that their case is not worth pursuing because there was no source of collection.

That’s the law. What is the process? Begin with the end in mind. Put together the necessary lay and expert witnesses and other evidence necessary to prove liability and damages at trial. At each stage a good lawyer asks how it is going to look to a jury.

This does not mean your case is going to trial. Most cases are not put in suit. They are settled after a demand is made by the injured person and some negotiations. Of those that are put in suit, 95% are settled before trial.

However, you always negotiate from a position a strength beginning with your initial demand to the insurance company. Insurance companies do not pay fair and adequate compensation unless they have to. They have to when an experienced trial lawyer and staff have put a team of witnesses together and are ready to proceed to court if the other side will not negotiate fairly.

Finally, it takes time. Draw a time line and put the day of the accident at the beginning. At the end of the line is a trial. This time line may be three years long or more.

In the first ninety days or so, liability is investigated. A private investigator speaks to the witnesses, measurements and photographs are taken, and in some cases expert witnesses, such as accident reconstruction people, are consulted.

Then comes the recovery period. This may be a year or more. No negotiations take place and no demand for compensation is made until the injuries have stabilized. Either a complete recovery has been made or the recovery has plateaued and there are permanent problems. Obviously, the compensation the injured person is entitled to differs dramatically between the two. Any discussion regarding money before the injury stabilizes means that then the injured person is only looking for money and not to be fairly compensated.

At the end of the recovery period, the impact of the loss is considered and evaluated. A settlement package, including a summary of all the evidence and a demand, is presented to other side—usually the insurance adjustor. It may take a month or two for the other side to review the demand and for negotiations to conclude.

If the other side will not pay the injured person fair and adequate compensation, suit is commenced. It varies by state but it may take from one to three years to get a trial date. The claim may be settled any time before trial.

Liability, damages, and a source of collection. Begin with the end in mind, negotiate from a position of strength and be patient—it takes time. Keep these things in mind and perhaps the law and the process will make some sense.