A personal injury claim arises when you suffer an injury that someone else is legally responsible for. Personal injury is one of the law’s most extensive areas of practice, generating thousands of cases and billions of dollars every year. Interestingly, most personal injury lawyers take an entrepreneurial approach to their practice in that they won’t charge you legal fees unless they win or settle your claim.
What Is the Burden of Proof in a Personal Injury Claim?
The burden of proof tells you who is responsible for proving a claim or assertion and how much evidence they need to provide. If you assert a personal injury claim, you are responsible for proving it. If the defendant asserts an affirmative defense such as expiration of the statute of limitations or assumption of risk, the defendant must prove their defense.
Most personal injury claims require you to prove your claim by a “preponderance of the evidence.” This just means that your evidence must be convincing enough to justify at least a 51% certainty that the defendant is liable. The defendant must meet the same burden of proof to prevail in an affirmative defense. If you assert punitive damages, however, you must prove them by “clear and convincing evidence”–- a more difficult standard to meet.
The famous “beyond a reasonable doubt” standard applies only to criminal charges.
What Are Damages?
“Damages” means monetary compensation. Texas recognizes three forms of damages:
- Economic damages: Tangible, easy-to-count damages such as medical bills and lost wages.
- Non-economic damages: Intangible, difficult-to-count damages such as mental anguish and pain and suffering.
- Punitive damages: An extra amount that a court might award you just to punish the defendant for particularly outrageous behavior.
Courts commonly award economic damages and non-economic damages, but they only rarely award punitive damages.
What Is Comparative Negligence?
Comparative negligence is a legal principle that distributes damages when the parties share fault for an accident. Under this system, a court will reduce the damages available to a party that shares fault, in exact proportion to their percentage of fault. There is one catch: In Texas (and many other states), anyone whose percentage of fault exceeds 50% receives nothing.
How Does Causation Work?
Causation is an essential element of any personal injury claim. To bear liability for a claim, the defendant’s actions must have caused the accident or injury that generated the injury in the first place. The defendant must prove two kinds of causation, which are cause in fact and proximate cause.
- Cause in fact: The accident or incident would not have happened but for the defendant’s act or failure to act.
- Proximate cause: The damages were a foreseeable consequence of the defendant’s act or failure to act.
Under many circumstances, it is appropriate to assume causation.
How Do Personal Injury Lawyers Charge Their Fees?
Almost all personal injury lawyers charge on a contingency basis. That means their legal fees equal a pre-agreed percentage of whatever amount they manage to win for you. This percentage typically ranges from 33% to 40%. Most personal injury lawyers will also pay your case expenses up front. This means court fees, expert witness fees, and more could be deducted from your final settlement or judgment – depending on the terms of your agreement with the lawyer.
This fee structure gives the attorney zero incentive to take your case unless they believe in it. If the attorney agrees to represent you on a contingency fee basis, you can be sure they believe they can win.
Should I Sue or Settle?
Over 90% of personal injury claims end with a settlement agreement, not a court judgment. Typically, both sides prefer settlement because it is easier and cheaper than litigation.
Nevertheless, the best way to settle your claim is to prepare to win at trial with admissible evidence. Once the opposing party realizes you can probably win at trial, they will be more than willing to settle.
In some cases, however, the defendant will be stubborn. One way to revive stalled settlement negotiations, ironically, is to file a lawsuit. Since filing a lawsuit doesn’t prevent you from settling any time before trial, you can use this as leverage to encourage negotiations.
What Is the Statute of Limitations?
The statute of limitations sets a deadline for you to either file a formal lawsuit or forever hold your peace. In Texas, you have two years from the date of your injury to file a personal injury lawsuit. If you are filing a wrongful death lawsuit on behalf of a deceased relative, you have two years from your relative’s date of death.
If you miss the statute of limitations deadline, a court will dismiss any lawsuit you try to file, and the opposing party will refuse to negotiate.
What Is a Settlement Agreement?
A settlement agreement is a formal contract where you agree to drop your claim for damages permanently, and the opposing party agrees to pay the amount of damages you both agreed to. A lawyer should draft this agreement; a single misplaced word could result in outsized consequences.
How Do I Enforce a Settlement Agreement?
You can file a contract lawsuit based on the terms of the settlement agreement. Assuming you have the facts on your side, you can obtain a judgment for the amount of your settlement. If the defendant refuses to pay, you will have to file another action asking the court to seize the funds that the opposing party owes you.
How Can a Dallas Personal Injury Lawyer Help Me?
An experienced Dallas personal injury lawyer can help you in the following ways, among others:
- Listen to your story, answer your questions, and evaluate the validity of your claim.
- Perform a preliminary investigation of your claim.
- Gather admissible evidence.
- Estimate the value of your claim.
- Advise you of your rights.
- Advise you against common mistakes that could ruin your claim.
- Negotiate your claim with the opposing party.
- Help you draft legal documents. Most lawsuits never make it to trial, but you still might need to file a lawsuit to win advantage in settlement negotiations.
- Help you with the pretrial discovery evidence collection process, if you choose to file a lawsuit.
- Draft the settlement agreement for you.
A seasoned personal injury lawyer can help you in many other ways as well.
Do You Need To Hire a Dallas Personal Injury Attorney?
That all depends on the nature of your case. In most cases, the answer is yes. You might be able to handle a small claim on your own. Nevertheless, since the value of your claim might be hidden, you might need to contact an experienced Dallas personal injury lawyer for a free consultation just to determine its true value. Since initial consultations carry no cost or obligation, you have little to lose by scheduling one.