Before I or any accident attorney can advise you as to the strength or weakness of your case I generally need to do some investigation. That investigation may be conducted before suit is filed or in some instances it may necessitate the filing of suit in order to obtain information through the formal discovery process allowed by the Courts (such as subpoenas, depositions, etc.)
As a general rule it is in your best interest that the investigation be conducted quickly. Insurance companies, for the most part, move very quickly to gather evidence once a person or company that they insure is involved in an incident that may result in a claim. Many insurance companies discourage injured people from hiring attorneys in the hope that they can negotiate directly with the injured person and “buy” the claim cheaply. If you have a minor injury that has involved minimal medical treatment and no continuing symptomatology, then it may be in your interest to deal directly with the insurance company. If, however, you have suffered injury that involves ongoing treatment and/or inability to return to your pre-accident status, then you may be better served by having an experienced civil litigator handling the case for you.
In any tort litigation, the party bringing the suit (plaintiff) must prove that there has been some breach of duty by the party that is being sued (defendant). That breach of duty may be referred to as negligence or malpractice. In addition to simply proving the breach of duty, the plaintiff must prove that the breach of duty was in fact a cause of his or her injury. For instance, if two parties run a red light at approximately the same time but only the first vehicle strikes the pedestrian that is crossing the street then, even though the operator of that second vehicle may have been negligent , that negligence did not cause the injury to the pedestrian and as such the pedestrian has a claim against the operator of the first vehicle and not against the operator of the second vehicle. In any tort litigation, the plaintiff in general must prove a breach of duty, that the breach of duty was a cause of injury and finally must prove what his/her actual injuries or damages are.
If those basic elements can be established and proven by the greater weight of the evidence then the party bringing the claim can prevail. To prove something by the greater weight of the evidence simply means that we must be able to convince a jury that it is more likely than not likely that the other party is responsible for the injuries that you claim. In addition to that, however, you must consider that the law in the tri-state area that we deal with (Virginia, D.C. and Maryland) recognizes a concept known as contributory negligence. Contributory negligence is negligence on the part of the party bringing the claim. The law in these jurisdictions is that if there is any negligence on the part of the person bringing the claim which contributed to their injury then their claim is barred. Some states recognize a concept known as comparative negligence which means that where both the party bringing the claim and the party being sued are guilty of negligence then that negligence will be compared and the plaintiff then will be allowed to recover the amount of damages that is not due to his or her own negligence.
That is the basic analysis that I engage in terms of deciding whether a case is meritorious. Many of these concepts are explained in much greater detail in book that I have written titled “Law 101“.
Legal answers provided by Brien Roche, a personal injury attorney with over 35 years of trial experience. Contact Us today to discuss your personal injury matter.