“Do I have a case?” That’s the basic question on every injury victim’s mind when they meet with a personal injury lawyer for the first time. And unfortunately, it doesn’t always have an easy answer.
A lot of things must line up just right to give injury victims a shot at fair compensation for their injuries. It’s not always just about right and wrong. There are other complex factors to consider, including how long it’s been since the injury, what evidence has (and hasn’t) been obtained, and whether an at-fault party has the resources to pay you.
In this blog post, we’ll dive into some of the critical factors our team looks at when evaluating personal injury claims. But if you get just one key takeaway, make sure it’s this: contact an experienced personal injury attorney as soon as possible after you or someone you love has been hurt. Many of these factors are time-sensitive, and simple mistakes made early in the process can wreck your chances of fair monetary compensation. The sooner you get objective legal advice, the better.
Negligence: The Three Basic Requirements
All personal injury cases are centered around the concept of negligence. Consider this the starting point of the case evaluation process.
If you can’t prove that someone else was negligent and responsible for your injury, then you don’t have a case, period. None of the other factors we’ll discuss later in this post will matter.
So what are the three components?
- Someone else owed you a duty of care. For example, drivers are obligated to care for the safety of other drivers by following the laws of the road. Trucking companies must limit the number of hours their drivers are on the road. Companies cannot make or sell dangerous or defective products. You get the idea.
- They violated that duty of care. A drunk driver hitting you after running a stop sign at a high rate of speed would be an obvious and clear example of someone who breached their duty of care to you.
- You got hurt as a result. Simply put, if you don’t get injured, don’t have any medical bills, and can walk away from a crash with no real impact on your daily life, you have nothing to be compensated for.
If you believe you meet all three basic conditions, then you have grounds to file a personal injury claim. However, that doesn’t necessarily mean you have a case that’s worth pursuing. There are other questions that must be answered.
RELATED: Understanding Negligence in Your Personal Injury Claim
Can you prove liability?
Even if you are 100% sure that you weren’t at fault—and someone else was—no insurance company or court is going to take your word for it. You need to be able to prove it with solid evidence.
For a car accident case, critical pieces of evidence an insurance company will look for include:
- Police reports
- Photographs and videos of the crash scene and property damage (which might include footage recorded on dash cams or security cameras)
- Eyewitness statements
- “Black box” data from involved vehicles (which track things like GPS, speed, braking, and steering input)
- Cell phone records
- Vehicle maintenance records
Other types of personal injury cases might require other types of specialized evidence, too.
On top of that, raw evidence is not always self-explanatory. In complicated personal injury lawsuits, you’ll likely need to hire expert witnesses (such as a crash reconstruction expert) to interpret that evidence and piece together what happened. No doubt, the insurance company will have their own “experts” too, promoting an entirely different narrative.
When you talk to one of our attorneys, they will carefully review the evidence that’s available, what evidence still needs to be collected, and what evidence may be unobtainable.
A few words about unclear liability and comparative negligence
In many cases, the evidence doesn’t 100% favor one side or the other. There may be “bad facts” for both the plaintiff and the defendant. There also might be “he said, she said” scenarios where there’s no objective way to determine for sure who is telling the truth.
The good news is that you don’t need to prove “beyond a reasonable doubt” in a personal injury case like you would in a criminal case. You just need to show that your version of events is more likely to be true than the defendant’s.
However, the more “gray area” there is about what really happened, the less likely you are to receive a large settlement offer from the insurance company.
Under Texas law, juries can split the fault for a personal injury between multiple parties. If they put some of the blame on you (more than 0% but no more than 50%) you can still recover some compensation, but it will be reduced by your percentage of fault. Texas juries are also likely to award more compensation in cases where liability is crystal clear.
RELATED: How Does Texas Deal With Contributory Negligence?
Can you prove your damages?
Here’s a quick primer on the basic kinds of damages you can claim after an accident:
- Compensatory economic damages. This includes any financial costs resulting from your injury, including costs that you will be projected to bear in the future. For example: medical bills, future medical expenses, lost wages or reduced wage-earning capacity, physical therapy, home modifications to accommodate disability, assisted living or nursing care, and other expenses.
- Compensatory non-economic damages. These damages compensate you for pain and suffering that go beyond the scope of financial losses. While these damages are more subjective in nature, they are still important. If your accident keeps you from enjoying your favorite activities, alters your relationships with loved ones, causes emotional distress, or other emotional harm, you may be able to claim significant non-economic damages to your quality of life.
- Punitive damages. These are not meant to compensate you for your suffering. Rather, they are to punish an at-fault party for grossly negligent behavior and act as warning and deterrent for potential future offenders. They are not always awarded and, even when they are, there are caps restricting how large they can be.
The hard part, especially if you don’t have solid legal representation, is proving that the above damages are (1) real and (2) specifically linked to the crash, fall, or other injury-causing incident in question.
Insurance companies love to use whatever information they can to undervalue your damages. If you have a pre-existing condition, they’ll say they don’t owe you for that injury (even if the crash made it worse). If you stop seeing a doctor about a symptom, they’ll say you got better (even though you didn’t). They’ll hire “medical experts” who will say there’s no way it could have possibly taken you more than two months to recover (even if your own medical team strongly disagrees).
Once again, you must back up your damage claim with solid evidence—medical records, doctor statements, testimony from family and friends, and expert witness testimony.
What can you realistically collect?
This is perhaps the most frustrating part of the process, and the one that leads to a lot of real heartbreak for innocent people.
In almost every personal injury case, there’s going to be an insurance company (or multiple insurance companies) paying your settlement or trial verdict. Each insurance policy has a coverage limit, which is the maximum amount of money the insurance company is required to pay out.
You can see the problem. If there are few applicable insurance policies available, and the coverage limits are low, it doesn’t matter how badly you’ve been hurt. The insurance company is not going to pay more than the coverage limit. And if the at-fault party has no other personal assets to compensate you, that’s all you’re likely to get.
This happens a lot more than you might think. Studies suggest that potentially as many as one in five Texas drivers are not carrying any liability insurance. Plus, since the minimum liability insurance policy coverage in the state is only $30,000 per person and $60,000 per accident for injuries (plus $25,000 for property damage), it’s quite easy to significantly exceed the at-fault driver’s coverage limits for even moderate injuries, or in cases where multiple people suffer injuries from the same incident.
This is one reason why we always strongly encourage drivers to never opt out of uninsured and underinsured motorist (UM/UIM) and personal injury protection (PIP) coverage from their own insurer. Both forms of supplemental insurance can help pay for your damages after an accident.
How much time is left to file a lawsuit?
Under most circumstances, Texas has a strict 2-year deadline to file a personal injury lawsuit. This is known as the statute of limitations. If you miss this deadline, your case is dead. The insurance company will ask the judge to dismiss your claim, and that will be that.
And remember, two years is your deadline to file a lawsuit with the court. There is a lot of work that must get done before your case reaches that point. You need to see your doctor and go through treatment. You need to gather evidence (most of which will start to disappear long before the two-year period is up). You want as much time as possible to try to negotiate a settlement with the insurance company before being forced to sue.
The earlier you contact a personal injury attorney, the greater the chance that they can help you. The longer you wait, the greater the risk that there won’t be enough time or evidence to build a winning case.
What’s the next step? A free case review
If you’ve suffered a personal injury, believe someone else was to blame, and want to know if you have a legitimate case, contact Crosley Law as soon as possible.
You’ll start with a 10-15 minute chat with one of our legal professionals. Typically, that’s enough time to determine if your case has potential. If we think we might be able to help, we’ll schedule a free consultation with one of our attorneys. We’ll also provide you a checklist of things to prepare and take with you to your appointment.
Then, during that initial consultation, we’ll discuss the merits of your case in more depth, go over your legal options, and help you make decisions about where the case should go from there.
RELATED: What Should I Bring to a Meeting With an Injury Lawyer?
Injured? Call Crosley
When you hire a great personal injury law firm like Crosley Law, you gain the peace of mind that a team of dedicated, experienced, and thorough legal professionals is on your side. To schedule a consultation with our team, give us a call today at (210) 529-3000, or complete our online consultation request form.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.
