An injured party is referred to as the plaintiff. In Nebraska, the plaintiff has the burden of proof. This means the “burden” is on you to establish the legally required elements in your case or you will not be entitled to any recovery. The plaintiff must prove three major elements in order to “have a case”: liability, causation and damages. While you will need help to fully evaluate whether or not you have a case, the following will get you started:
Element #1 – Liability
In order to “have a case,” the other party must be “liable” for your injuries. Typically, this means the other party has committed a negligent action that caused your injuries. In order to prevail on a claim of negligence, the facts must clearly show the other driver’s negligence or failure to meet the standard of care. The most direct evidence is a violation of the rules of the road. For example, “failure to yield” or running a stop light.
Element #2 – Causation
You must be able to show that your injuries were caused by this accident. For example, in order to be compensated for a ruptured disc in your low back, you will need strong evidence that this injury resulted from your collision and not from an accident at home or at work. A doctor’s medical opinion may be required to resolve this issue.
Element #3 – Damages
This can be defined as how the accident impacted you physically, emotionally and financially. More specifically, your (a) pain and suffering; (b) lost wages; (c) lost or diminished quality of life; (d) present and future medical expenses, and (e) out-of-pocket expenses.
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.
Most personal injury claimants do not try their cases in court. Most cases are settled out of court. However, if the defendant's insurance company refuses to pay fair compensation for your damages, the case may need to be decided by a judge or a jury. The decision about whether to settle a case or file a lawsuit is one of key importance. The right decision requires research, competent counsel and careful consideration. The final decision belongs only to the injury victim.
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. The key in an injury case is not to settle until you have reached maximum medical improvement. Once a settlement is accepted, the victim can never again go back and ask for more money – so don’t get in too big a hurry. Some injuries, like head injuries, demand a long waiting period. My personal rule of thumb is never even to consider settling a head injury case for at least a year after the initial injury.
Generally, there is no fee for talking to a personal injury attorney about your claim; initial consultations are typically free. Usually, in personal injury cases, once an attorney makes a commitment to represent you and/or your family, you are only charged a fee if the attorney successfully obtains a recovery for you. This fee is calculated as a percentage of the recovery. In Nebraska, this percentage is typically one-third, or 40% if the case must be placed on file with a court. Expenses necessary for pursuing an injury claim may be advanced by the attorney. If an attorney is successful in obtaining a recovery for you, these costs are then reimbursed to the attorney from your portion of the distribution. If nothing is recovered on your behalf, you will generally not owe the attorney any fees or any case expenses, depending on your circumstances. However, this may vary from one attorney/client contract to another. By the way, Nebraska law requires a written contract between an attorney and their client in a contingent fee personal injury case.
If you are partially at fault, you may still be entitled to receive a percentage of the compensation you would have received if you were not at fault at all. The amount depends on the percentage of fault assigned to you. This is 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 you are found to be 50% or more negligent, you are not entitled to recover anything.
While you should always contact law enforcement to investigate your accident, you too should gather information and supporting documentation. Try to get as many of the following items as possible:
An experienced personal injury attorney will do the following:
The more information the lawyer has about your case, the better. You should supply any documents that might be relevant. Accident reports, for example, contain eyewitness accounts and details about the auto accident. Copies of medical reports from doctors and hospitals will describe your injuries. Information about the other driver’s insurer is extremely helpful, as are any photographs you have of the accident or of your injuries. If you do not have these documents in your possession, don’t worry. Your lawyer will be able to obtain all paperwork necessary to present your case.
Most importantly, you should expect to obtain a sense of confidence in the lawyer you are meeting with. They 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 written contract. All aspects of the agreement should be explained to you. A lawyer cannot represent you without a written agreement. Once that agreement is in effect, your counsel should start gathering the documents and information they will need to try your case. No competent lawyer would tell you exactly 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 damage 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.
If seriously injured, it is important that you contact a lawyer as soon as possible after your accident. In almost all cases, evidence begins to be lost, spoiled or altered immediately following the accident. Some of the evidence may be imperative. For example, the memory of a crucial witness will, over time, become cloudy or completely fade away. The sooner your lawyer can get started working for you, the better. Remember, the insurance adjuster for your claim is also highly trained in negotiation and they have the job of convincing you to settle for as little as possible. This typically includes their “friendly” advice not to get a lawyer because “you won’t get as much money.” That’s a laugh.
It is also important to find out your time limits for filing a lawsuit or claim, called the “statute of limitations.” Remember that the claim investigation can take time. So don’t sit on your legal rights too long or you will lose them – even if you don’t want to go to court. Once the statute of limitations runs out, the insurance company will close the file and stop returning your phone calls.
Most people simply want fair compensation for the injuries they suffered in an auto accident. They are not trying to “get rich” or “get something for nothing.” However, what really is “fair compensation”?
There is no exact formula for determining the amount of compensation you should recover. A variety of factors are considered by your lawyer, the defendant and the insurance companies or, if your case goes to court, the jury. These factors include severity of the accident, your injuries, the impact of the injuries on your employment and day-to-day life, and the extent of your medical care, to name a few.
Fair compensation certainly includes more than just reimbursement for your medical expenses. Depending on the circumstances, 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 reliance on the injured person.
Determining the “fair value” of your claim is one of the critical issues in every case. If your injuries are substantial, you will need to consult with an experienced personal injury attorney.
If the liable party doesn't have insurance to cover your damages, you can make a claim against your own automobile insurance policy’s “uninsured motorist coverage.” In some cases you can file a personal claim against the liable individual, but oftentimes, their assets won't cover the damage. In addition, even if you manage to win a large judgment in court against suchan individual, they can just file bankruptcy and erase it.
If you arein an auto accident due to the negligence of another driver, you typically will seek compensation from the negligent driver’s insurer based on their insurance policy. However, don’t expect the other insurance companyto pay anything until your case has been settled.
If the driver was uninsured or underinsured, and if you have coverage through your own insurance policy or the policy covering the vehicle in which you were riding, you can make a claim for these benefits. This is often referred to as “UM” or “UIM” insurance coverage. Seeking these benefits should not affect your future cost of insurance if you were not the negligent party.
Many auto policies often 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 limits of the PIP coverage. Typically, these coverages vary from $2,500 up to $10,000. PIP benefits do not have to be repaid if the adverse driver’s insurance pays damages. MedPay benefits pay for medical expenses and are subject to “subrogation” unless liability and UIM coverage are both exhausted.
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