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Filing a Lawsuit for a Personal Injury—Part One

Initiating the Legal Process in Court | Gathering Evidence

Filing a Lawsuit for a Personal Injury—Part OneWhen you’ve been hurt because of the carelessness or negligence of another person, you hope that you can get the compensation you need to cover your losses without the need to file legal action. Unfortunately, that doesn’t happen very often. In most instances, you’ll need to hire an experienced personal injury lawyer and methodically move through the legal process. In this series, we provide an overview of what you can expect when you file a civil lawsuit for damages suffered in an accident.

Step One—Filing Your Claim

To initiate a lawsuit, you must file a document known as a “complaint.” The complaint must be filed in the appropriate jurisdiction—both geographically and in terms of the types of matters heard by the court. As a general rule, most personal injury claims are filed in state court, but there are circumstances where a federal court will have jurisdiction. Typically, the injured party initially establishes jurisdiction by filing with a specific court, though the defendant may seek a change of venue, or to have the lawsuit dismissed for lack of jurisdiction.

In addition to filing in the appropriate court, you must also file in a timely manner. The statute of limitations sets forth the maximum amount of time you have to file, typically two years from the date of injury or discovery of injury. Once your complaint is filed, the defendant must file an answer within a specified period, usually 28 days. If the defendant fails to do so, you can ask the court for a default judgment.

Step Two—The Discovery Process

If there’s a timely response to your complaint, the judge will customarily set up an initial conference. That meeting usually has three functions:

  • It allows the judge to learn about the case
  • It gives the judge the opportunity to determine whether settlement is likely (and to encourage that process)
  • It allows the judge to set a discovery schedule

Discovery is a legal term that refers to the gathering of evidence. The judge will set a calendar for the completion of discovery and set any necessary limits on discovery. As a general rule, discovery is obtained through

  • Depositions
  • Requests for production of documents or other physical evidence
  • Interrogatories (written questions submitted to the other party)

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

What Is Negligence?—Part Three

Demonstrating Actual Loss

As we discussed in the first and second parts of this series, the initial requirements in a lawsuit alleging negligence are:

  • Evidence that would lead the jury to conclude that the defendant did not act reasonably under the circumstances (the conduct breached the duty of care)
  • The failure to act reasonably caused an accident

However, you can demonstrate conclusively that the at-fault party behaved unreasonably and that his or her actions caused an accident, but still be precluded from recovering any compensation in a personal injury lawsuit—you must also show that you suffered some actual loss.

Actual Loss in a Personal Injury Lawsuit

As a general rule, most damages paid in a personal injury suit are “compensatory,” i.e., intended to compensate the injured party for losses suffered. If, however, you haven’t suffered any loss, there’s nothing for which you need to be compensated. For example, assume that you were a motor vehicle accident and suffered bodily injury, incurring significant medical expenses. If those expenses are covered by your health or auto insurance policy, you won’t be able to recover any damages for medical expenses, as you haven’t had any out-of-pocket expense for medical care.

That’s not to say that the defendant won’t be responsible to someone for his or her negligence. In most instances, when an insurance company covers losses that you’ve suffered because of someone else’s carelessness, they have a right to seek reimbursement from the defendant for any amounts they’ve paid on your behalf.

It’s also important to understand that there’s another category of damages that are available in a personal injury action. These so-called “non-compensatory” or “non-economic” damages include payment for pain and suffering, loss of consortium or companionship and loss of enjoyment of life. Accordingly, you may not be able to recover damages for injuries covered by insurance, but you can still seek compensation for those non-economic losses.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

What Is Negligence—Part Two

Establishing Who Caused the Accident

As we explained in part one of this series, when you’ve been injured in any type of accident and have filed a lawsuit alleging negligence, the first element you’ll have to prove is that the wrongdoer (known as the “defendant”) failed to meet the recognized standard of care—that he or she acted unreasonably under the circumstances. But it’s not enough to show that the defendant breached the duty of care—you must then show a causal link between the breach of the duty of care and an accident.

The Different Types of Cause in a Personal Injury Claim

In any lawsuit alleging negligence, you must prove two different types of cause: actual cause and proximate cause.

Actual cause, also known as “but for” cause, is typically pretty straightforward. It simply asks whether the accident would have happened “but for” or in the absence of the wrongful conduct. Actual cause can become an issue when there are two or more parties who acted wrongfully. For example, if you are rear-ended at a stop sign and it pushes you out into an intersection, where you are t-boned by another driver who has just run a stop sign, there are two ways to look at actual cause:

  • Would you have been t-boned if you hadn’t been rear-ended first?
  • Would you have been t-boned if the second driver hadn’t run the stop sign?

It’s not enough, though, to demonstrate actual cause—you must also show proximate cause. Proximate cause asks whether the accident and its consequences were reasonably foreseeable, based on the careless act. For example, if you run a red light, it may be reasonably foreseeable that you will collide with another driver. However, if that driver loses control of his vehicle, careens into a gas station, hits a pump and causes a fire that burns an entire city block, you may not be liable for damages caused by the fire, as a jury may not consider that to be reasonably foreseeable.

Contact Attorney David J. Karbasian

Contact our office online or call us at 856-667-4666 to schedule an appointment. Your first consultation is without cost or obligation. The sooner you call, the sooner you can move forward with your claim. We can accommodate evening or weekend meeting requests and will come to your home, if necessary.

What Is Negligence?—Part One

Protecting Your Rights after You’ve Been Hurt

When you’ve suffered any kind of loss because of the wrongful act of another person—the loss of income when you can’t work or the loss of companionship or consortium; the costs of un-reimbursed medical care or the loss of enjoyment of life caused by your pain and suffering—you have a right to seek compensation in a personal injury lawsuit. While those types of legal action can be based on intentional acts of the wrongdoer, as a practical matter, they are almost always based on a legal theory of negligence.

What Is Negligence?

As the laws governing personal injury have evolved over many centuries, three requirements have been set forth to prove a claim based on negligence:

  • The injured party must show that the wrongdoer (the defendant) failed to meet (breached) the standard of care required under the circumstances
  • The injured party must show causal links (both actual and proximate cause) between the breach of duty and the accident
  • The injured party must show some actual loss as a result of the accident

In this blog, we will look more closely at the standard of care.

What Is the Standard of Care in a Personal Injury Lawsuit?

Under the principle of negligence, all persons in society have a duty to act as a reasonable person would, in whatever endeavor they are engaged in. Accordingly, when driving a car, manufacturing a product or maintaining property, a “reasonable” amount of care must be exercised.

Unfortunately, there is no concrete standard for what will be construed as “reasonable.” Instead, the appropriate standard of care is determined by a jury on a case-by-case basis. Juries are not, however, without guidance. Under the principle of stare decisis, juries must give weight to the prior decisions of courts in similar situations. But the standard is still a vague one and can vary to some degree from jurisdiction to jurisdiction.

Contact the Law Offices of David J. Karbasian, PC

Send us an e-mail today or call us at 856-667-4666 to schedule an appointment.

Evening and weekend meetings can be arranged upon request. We’ll come to your home or the hospital to meet with you, if necessary.

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