Personal Injury FAQ
Do I have a case?
An injured party is referred to as the plaintiff. In Nebraska, the Plaintiff has the burden of proof. This means you will have to establish the legally required facts in your case, or you will not be entitled to any recovery. The Plaintiff must prove three major elements to prove his or her case: liability, causation, and damages. Only a competent personal injury attorney can accurately help you evaluate the likelihood that you have a case and can assist you in reaching a decision as to whether you want to pursue a claim.
In order to have a case, there must be a liable party. This depends on the facts and what type of claim you are bringing. Usually, if there is a liable person in a personal injury case, they will have committed a negligent action which caused your injuries. In order to prevail on a claim of negligence, the facts must clearly demonstrate: (1) negligence or failure to meet the standard of care; and (2) that the negligence caused you harm or injury. However, establishing liability is only part of the picture.
The other part of the picture is damages. The harm or injuries you have suffered must be significant enough to justify spending the time, energy, and resources that are required to bring a successful claim.
The chances of success of a claim depend on the individual circumstances of your case. Our personal injury attorneys can advise you of the possibility of success of your particular case.
Do injury claims always go to court?
Most personal injury claimants are not subjected to trying their case in court, and many cases are settled out of court. However, when the defendant's or insurance company's offer of settlement is too low or liability is at issue, the facts and damages of a case may need to be decided by a jury or a judge. The decision to settle a case or file a lawsuit is one of the key decisions a lawyer can assist you in making.
How long does it take to settle an injury claim?
Time to conclusion depends largely on the circumstances of the injury, the nature of the case, the insurance company, the insurance adjuster and the attorneys involved. There is a wide time frame for settlements, which changes substantially if a lawsuit is filed. Our Nebraska personal injury attorneys William Steffens and Jeremiah Luebbe will be able to give you more information after a thorough evaluation of your specific circumstances.
How much will it cost to hire a Personal Injury Attorney?
There is no fee for talking to a personal injury attorney about your claim; initial consultations are free. Generally in personal injury cases, once an attorney makes a commitment to represent you and/or your family, they only charge an attorney's fee when they are successful in obtaining a recovery for you. This fee is calculated as a percentage of the recovery. Usually, all expenses necessary for pursuing an injury claim will be advanced by a personal injury attorney. If an attorney is successful in obtaining a recovery for you, the costs will be reimbursed from your portion of the recovery. If nothing is recovered on your behalf, you generally will not owe the attorney for any fees or any case expenses.
Can I be compensated if I am partially at fault?
If you are partially at fault, you may still be entitled to receive a percentage of the compensation you would have normally received. The amount depends on the percentage of fault assigned to you, called your "comparative negligence." Until that has been established by a judge or jury, you should seek the informed opinion of a personal injury attorney.
If I was injured in a DWI accident, do I need an attorney?
The use of alcohol can be considered an aggravating circumstance in a personal injury claim. If you were injured by a person under the influence of alcohol, a personal injury attorney will be able to advise you as to the actual value of your case and will be able to act on your behalf to insure that the insurance company does not take advantage of you with a low offer.
What information should I gather at the accident scene?
First and foremost you must ensure your own safety and that of those with you. Obtain the medical attention necessary to ensure the health and safety of your loved ones.
Do not discuss the facts of the incident or sign any legal documents until you have come to understand your legal rights. Do not admit fault or take responsibility. Do not give a statement to an insurance company until you are comfortable and you have an attorney present.
You should gather as much information and supporting documentation as possible at the scene of an accident and in the days following, if possible. Try to get as many of the following items as possible:
What will a Personal Injury Attorney do for me?
An experienced personal injury attorney will do the following:
Similarly, if you know you don't want to go to trial, you shouldn't file a lawsuit.
After an initial meeting with your attorney, he/she will begin putting your case together by interviewing witnesses and thoroughly investigating and documenting the accident. After this information-gathering phase, the attorney will begin discussions with the other party. In the case of car accidents, this is generally the other driver's insurance company, who is contractually obligated to defend them. Many attorneys organize all the evidence and medical records in a settlement brochure or demand package, which is sent to the insurance representative for consideration of the claim. The attorney might also include in the brochure a demand for a specific amount of compensation. After some back-and-forth with the insurance company, many cases settle. Some do not and a lawsuit must be filed.
What documents should I bring with me when I meet with a lawyer?
The short answer is the more information the lawyer has, the better his advice to you will be. You should supply any documents that might have a bearing on your case. Accident reports, for example, contain eyewitness accounts and details about auto accidents. Copies of medical reports from doctors and hospitals which you have obtained will describe your injuries. Information about the other driver's or negligent party's insurer is extremely helpful, as are any photographs you have of the accident or of your injury. If you do not have these documents in your possession, do not worry. Your lawyer will be able to obtain all necessary paperwork necessary to present your case.
What can I expect at the first consultation?
Most importantly, you should expect to obtain a sense of confidence in the law firm you are meeting with. Your lawyer should be able to tell you if you have a case with merit. If your case is one the law firm is willing to accept, you will likely be provided with a retainer agreement. All aspects of the retainer agreement should be explained to you. A lawyer cannot represent you without a written retainer agreement. Once that agreement is in effect, your counsel should start gathering the documents and information he or she will need to try your case. No competent lawyer should tell you what your case is worth at the first visit. In order to arrive at a figure for damages, your lawyer will need to determine the extent of your injuries, including pain and suffering, disability and disfigurement, the cost of medical treatment, and lost wages. Many times these elements of damages cannot be determined without extensive research and consultation with expert witnesses. Your lawyer, once retained, should be able to provide you with a proposed rough timeline for the various phases of your particular case.
How long should I wait before contacting a lawyer?
It is very important that you contact a lawyer as soon after an incident as you are able to do so. In almost all cases, evidence begins to be lost, spoiled, or altered almost immediately following an incident, and it is imperative to preserve that evidence. The sooner your lawyer can get started working for you the better. Remember the insurance adjuster for your claim is also highly trained in negotiations, and (s)he has the job of negotiating as low of a settlement as possible for your claim and several hundred other claims each year. It is important not to give any information to the insurance adjuster without first consulting a personal injury attorney. Also, letting your claim sit could affect its value as witnesses and memories of the accident fade away, or are lost entirely. It is important to contact a lawyer as soon as possible about any potential claim because you should get legal advice on your time limits for filing a lawsuit or claim, called the statute of limitations. The investigation of claims can take time. Remember that you should not accept legal advice about your claim from anyone other than a qualified lawyer.
How is fault proven in an injury causing accident?
Ultimately, it is the responsibility of a judge or jury to assess the fault and responsibility in an accident. A personal injury attorney can work with you in conducting a thorough investigation, and gather the evidence to get to the bottom of who was at fault in an injury-causing incident. For this reason, it is important that you gather as much information as possible, and preserve as much physical evidence as possible.
What types of personal injury cases are there?
Generally there are three established theories of personal injury or tort liability: negligence, strict liability and intentional misconduct.
Negligence occurs when a person's conduct falls below a legally recognized standard of care under the circumstances to protect others from harm. Persons who act negligently do not intend to cause an accident that injures another person. Instead, their liability develops from careless or thoughtless actions. Negligence is the basis for liability in the majority of personal injury lawsuits, including automobile accidents and slip and fall cases.
Proving that someone else was negligent comes down to the following question: Was the party who allegedly caused the injury acting as carefully as a reasonable person would have acted under similar circumstances? If not, then that party was negligent. Examples of negligence include a reckless driver causing an automobile accident, or a store owner failing to repair a defective door, thereby causing a customer to fall and be hurt. If a reasonable person would have driven more prudently, or if a reasonable store owner would have repaired the defective door, then the negligent party should be found liable by a judge or jury.
The outcome of a lawsuit in which negligence is alleged can be difficult to predict because determining how much care a reasonable person would have exercised in the same situation is difficult. The reasonable person standard is vague, imprecise and apt to be interpreted differently by different people. Often, a practice that seemed reasonable in the past may appear unreasonable with the benefit of hindsight. Finding an attorney who has experience with how juries typically interpret the reasonable person standard is, therefore, one of the most important steps in successfully presenting a personal injury lawsuit in which the plaintiff alleges that the person acted negligently.
Dog bite cases are typically strict liability cases, when the dog has bitten a victim previously.
Intentional tort personal injury claimants must prove more than just careless actions by another person. The Plaintiff must prove that the offending person intended to engage in the offending conduct that he or she engaged in. In contrast to the negligence theory of liability for personal injury, the Plaintiff alleging an intentional tort does not need to show actual damages to recover, but your case has more value when actual damages can be proven. Please note that intentional tort claims are different from criminal cases brought by the state and are not subject to the criminal standard of guilty beyond a reasonable doubt.
Should I give a recorded statement to an insurance adjuster?
You should not give a recorded statement without the presence of a personal injury attorney to represent you, as it may later be used against you by the insurance company. Consult an attorney prior to giving a recorded statement so that your rights regarding your claim are not prejudiced.
What Amount of Money is "Fair Compensation" For my Personal Injury Claim?
Most people simply want fair compensation for their injuries from an auto accident. They are not trying to get rich or get something for nothing. However, what is "fair compensation?"
There is no exact formula for determining the amount of compensation you recover. A variety of factors are considered by your lawyer, the Defendant and the insurance companies in negotiations or by a jury in court to determine fair and just compensation. These factors include severity of the accident, severity of injuries, impact of the injuries on the victim's employment and day-to-day life, and extent of medical care, to name a few. Aggravating factors such as drunk driving can both hasten settlement and affect the settlement amount.
Fair compensation certainly includes more than just reimbursement for your medical expenses. A personal injury victim may recover compensation for:
In some cases, the injured person's family members may be entitled to compensation, depending on the severity of the injuries and their dependence on the injured person.
You are entitled to compensation for medical expenses even if those expenses already have been paid by a health insurance plan. But, a personal injury claimant usually must pay the health insurance company back out of the monies received from the Defendant's liability insurance company, through subrogation.
Determining the "fair value" of your case is one of the critical issues in your case which only an experienced injury lawyer can properly answer.
What do I do if the other driver doesn't have insurance in an automobile case?
If the liable party doesn't have insurance to cover their damage, you can make a claim against your own automobile insurance policy's "uninsured motorist insurance." In some cases you can file a claim against the liable individual, but chances are that their assets won't cover the damage.
What are Uninsured/Underinsured Motorist Benefits?
If you were in an auto accident due to the negligence of another driver, you typically will seek compensation from the negligent driver's insurer based on his insurance policy.
However, if the driver was uninsured, and if you have "uninsured/underinsured motorist coverage" ("UM/UIM coverage") through your own insurance policy or the policy covering the vehicle in which you were riding, you can make such a claim.
What is Personal Injury Protection (PIP) and Medical Payment Insurance (Med Pay)?
Many auto policies include a form of medical and wage coverage called personal injury protection coverage, or PIP. This coverage is available to the insured driver and any passengers in the insured's vehicle for injuries sustained, regardless of who is at fault for the accident. PIP coverage pays 100% of the medical expenses, up to the amount of the PIP coverage limits. These policies cover damages up to the amounts of $2,500, $5,000, or $10,000. PIP benefits do not have to be repaid if the adverse driver's insurance pays damages. Med Pay benefits pay for medical expenses, and are subject to "subrogation" (see above).
How do I file an injury claim?
The proper procedure for bringing an injury claim completely depends on the circumstances of each case. Variables such as the type of injury, nature of the at-fault party, and the nature of insurance coverage can drastically effect the method by which a victim brings a claim. Also, different types of claims are subject to distinct time limits, called statute of limitations. You should take prompt action when you've been injured. A personal injury attorney can advise you as to the proper method and timing to properly file a claim in your particular case.
I have a personal injury question that you have not answered.