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What is Personal Injury Law? What are my rights if I have been wronged or injured?

by Patrick G. King posted Jun 19 2017 7:15 AM

What is Personal Injury Law? What are my rights if I have been wronged or injured? By: Patrick G. King of King Law Firm, LLC (Alton, IL): Personal Injury and Trial Lawyer

What is personal injury?

Personal injury is harm or damages caused to a person, such as a broken bone, concussion, loss of limb, loss of life, or other bodily injury, as a result of negligence, intentional tort, or misconduct. A person - who suffers from a personal injury - may file a claim or lawsuit to seek recovery or compensation for pain and suffering, loss of a normal life, lost wages, medical bills, and emotional distress.

Some examples of personal injury cases are: 1) Tractor-trailer or Trucking Accidents; 2) Automobile Accidents or Car Crash; 3) Products Liability; 4) Dog-Bite; 5) Slip & Fall (Premises Liability); 6) Medical Malpractice; 7) Nursing Home Abuse & Neglect; 8) Wrongful Death; and 9) Defamation (Slander & Libel).

What is Wrongful Death?

In a Wrongful Death case, the claim or case is filed by a decedent’s (deceased person) personal representative (executor or administrator) to recover for injuries or damages suffered by decedent’s spouse or family (next of kin) resulting from the wrongful death of the decedent. In the same case, a survival action may be brought in behalf of the decedent’s estate to recover for personal injuries or damages sustained by the decedent - which had been caused and suffered by the decedent during his or her lifetime before death. Wrongful Death cases arise in matters involving auto/car accidents, semi-truck/tractor trailer accidents, products liability, medical malpractice, mesothelioma or asbestos, nursing home negligence, and other personal injury cases when someone dies from negligence or other misconduct.   

Do I have the right to hire an attorney?

Yes, individuals (YOU) have the constitutional right to consult and/or hire an attorney. In many cases, insurance claims adjuster or representative will offer a minimum yet persuasive settlement offer, which includes payment of medical expenses. However, the insurance adjuster often fails to mention that the law allows for additional compensation, including past and future medical expenses, past and future pain and suffering, past and future loss of enjoyment of life, past and future lost wages, and past and future emotional distress or anguish.   

Do I have the right to trial?

An individual or a group of individuals in some circumstances have the right to redress any harm or injuries in the court system. Both Illinois state courts and federal courts ensure the right to jury trial in most civil personal injury cases. The purpose of filing a lawsuit is to seek fair, just, and reasonable compensation for harm or injuries. Punitive damages - designed to punish or deter - are allowed in limited cases. The form of compensation in personal injury cases is an award of money. A jury is comprised of 6 or 12 members depending on the jurisdiction. Jurors are ordinary citizens selected to hear the facts of a case, determine credibility of witnesses, review evidence, and render a verdict (decision). The right to a jury trial is a vitally important constitutional right recognized in the judicial system of the United States of America.

What are the statutes of limitation?

The general rule, without consideration of some exceptions, is that an individual or group of individuals must file a lawsuit within two (2) years from the date of the cause of action, occurrence, incident, and/or accident. This deadline is known as the Statute of Limitations, which does exist in Illinois. The unfortunate consequence for failing to timely file a lawsuit will result in an absolute bar and prevention of recovery, including money. I should mention there is an applicable one-year Statute of Limitation(s) when filing a lawsuit against local public entities or some other governmental entities.  

How do Attorneys receive compensation?

In most circumstances, personal injury attorneys handle such cases on a contingency fee basis, which means the attorney is not paid for legal services until and unless successful recovery is made or awarded on behalf of the client. In many circumstances, the injured individual simply cannot afford to retain the services of an attorney and the individual does not have necessary monetary means to finance the lawsuit.

In my personal injury cases, I handle such cases on a contingent fee basis, and many times my firm will advance case costs for the client.  

Pre-Lawsuit Investigation

Most personal injury attorneys, but unfortunately not all attorneys, conduct pre-lawsuit investigation(s), which benefit the client and attorney. I have listed below some of my tactics upon being retained by a client in a typical personal injury case:

Visit the site of the accident/incident;

Interview witnesses to obtain oral/written statements;

Photograph the site of the accident;

Photograph visible injuries, such as broken bones or scars;

Request the client to keep and maintain a journal log;  

Order medical records and bills;

Consult with experts in the field at issue;

Research relevant laws - statutes and case law;

Review the Jury Instructions (Laws guiding the jury at trial); and

Order relevant records for review and evidence gathering purposes.

The purpose of a pre-lawsuit investigation is to gather and build favorable evidence, become aware of unfavorable evidence, obtain information that is "fresh" in the minds of witnesses, gain an edge against the insurance companies and its investigators, begin development of the case theory or alternative theories, and evaluate the value of the potential claim. In many circumstances, the ability to obtain information within the first month or two can make the difference as to whether or not the client will receive compensation for the harm suffered.

Filing the Lawsuit

In claims when settlement cannot be reached, the filing of a lawsuit becomes necessary. The starting point begins with the Complaint, which must be filed in the state of jurisdiction and county of venue. The Clerk of the Court requires a filing fee and jury fee. The Clerk will issue a Summons that must be personally served along with the Complaint on the Defendant. The Sheriff's Office or private process server can complete such service of process. Then, the Defendant should have 30 days to appear in court and/or file an Answer or response to the Complaint.

The Complaint should outline facts that support the claim, including the nature and extent of injuries and amount of money being claimed in the lawsuit. In Illinois, sufficient facts must be pled to support a cause of action. The Complaint is not intended to prove your case, but should outline theories of recovery with factual support. In the event of default judgment meaning that the Defendant failed to appear even with proper service, then judgment can be entered based upon the allegations of the Complaint. The Court will schedule a Hearing to determine the amount of damages.

The filing of the lawsuit takes careful preparation and research to ensure that proper theories of recovery are alleged in the Complaint.    

Discovery

Once the lawsuit has been filed and initial motions have been heard and ruled on by the Court, the parties begin the exchange of information. In Illinois, full disclosure is required of all litigants pertaining to matters which are relevant and discoverable under the Supreme Court Rules and Code of Civil Procedure. Written questions are asked in the form of Interrogatories and documents, items, and materials are exchanged through Requests for Production.

Following written discovery, parties then engage in discovery depositions. Testimony is recorded and transcribed by a court reporter and matters which are relevant and discoverable may be asked and answered. Only matters that are privileged (statutorily or common law) are protected from disclosure to the opponent. Discovery depositions in many circumstances is where the case can be won or lost especially when representing the Plaintiff - who must testify accurately and truthfully to be credible. After all, the Plaintiff is the party who carries the burden of proof meaning that the Plaintiff must have credible evidence.

Depositions

Depositions are the method to take testimony under oath from a witness/party with the use of a court reporter. Every word is transcribed and recorded in a transcript, which can be used to refresh or impeach testimony at trial. In Illinois, there are two (2) types of Depositions - 1) Discovery and 2) Evidence.

Discovery Depositions are used to gather facts, build evidence, introduce a theme, analyze documents from a witness’s perspective, learn new information, and examine the appearance, credibility, knowledge, truthfulness, and toughness of a witness or party.

Evidence Depositions are used to obtain admissible testimony for trial in lieu or instead of calling a "live" witness to the stand at trial. Often, trial attorneys take an Evidence Deposition (video depositions sometimes) of a treating physician instead of calling the physician live at trial. This method can be cost effective, time efficient, and also provides a safety mechanism before trial to prevent a witness from suddenly and without notice failing to appear at trial especially with a jury or judge waiting to hear testimony.  

Many cases are won or lost during Depositions.

Requests to Admit - Discovery and Trial Tool

Illinois Supreme Court Rule 216 permits for any party to serve written requests for the admission of the truth and/or genuineness of any document. The responding party has twenty-eight (28) days to object or deny the request to admit; otherwise, the request to admit will be determined true and/or genuine.

If served with these types of requests, it becomes extremely important to carefully read and respond. If not, then many issues at trial will be pre-determined by the response or lack of response to the requests to admit.

This is a discovery tool to effectively limit the issues at trial, or it may encourage the parties to enter into some type of stipulations to narrow the issues.

Settlement Demand and Settlement Agreement

Most personal injury cases are resolved by compromise and settlement between and among parties. A settlement demand is usually a written letter to the opposite party or parties outlining the expected terms and conditions of settlement. Often times, the demand is the initial opportunity to begin settlement negotiations.  

A settlement agreement is a resolution, compromise, and contract between and among the parties to resolve the legal dispute before or after trial. All participating parties must be willing to negotiate in good faith. If a settlement agreement is achieved, then in most cases, the Plaintiff will be expected to sign and execute a Release - which fully relieves the other party or parties from any and all future liability and damages known or unknown. Then, a Stipulation for Dismissal with prejudice is filed with the Court, if the litigation is still pending. In many cases, one Defendant is willing to settle and be released from the case. If other Defendants are remaining in the case, then the Plaintiff will continue to prosecute the cause(s) of action to maximize full and fair recovery.

As a trial attorney, I believe that it is essential to investigate, research, and prepare each case for trial. In the event that a settlement agreement is achievable, I will discuss such matter in great detail with my client. The decision to resolve and settle a case is the sole decision of my client. My advice and recommendation is based upon the best interests of my client.

Proceeding to Trial

If the lawsuit cannot be resolved by settlement negotiations or mediation, then it will be adjudicated by trial - bench or jury. Every case should be one-hundred percent fully prepared for trial regardless of settlement opportunities or strength of the case.

Before trial, all discovery depositions should be reviewed and summarized, amend pleadings if necessary, fact and expert witnesses must be fully disclosed as set forth in Supreme Court Rule 213(f)(1)(2)(3), amend and/or supplement discovery answers and responses (full disclosure required in Interrogatories and Requests to Produce), seek stipulations with the opposing party or parties concerning evidentiary matters, resolve any pending motions, including Summary Judgment, draft motions in limine (pre-trial motions), subpoena trial witnesses, take any remaining medical evidence depositions, prepare trial questions and testimony, review all evidence and related issues, prepare the client for the rigors of trial, begin drafting jury instructions, and prepare for opening statements and closing arguments.   

This time period is critical to review all evidence and prepare all witnesses to present before a judge or jury. Many cases are resolved before trial; however, a good trial attorney will be fully prepared to take the case to final verdict.

At a jury trial, ordinary citizens serve as the "trier of fact" meaning that the jurors assess and judge the facts, credibility of witnesses, review evidence and testimony, and then make the final decision in the form of a verdict. The Seventh Amendment to the United States Constitution guarantees the right of a trial by jury in civil cases. 

Specifically in personal injury cases, a jury trial allows for an injured victim to present his or her side of the story, request that the Defendant, such as a Trucking Company, be held responsible for negligent, intentional, or other wrongful conduct. A jury trial gives the injured victim the opportunity to speak with a voice. The right to a trial by jury must be protected and is of vital importance to preserving justice for injured victims in personal injury cases.

Pre-Existing Injuries Compensable?

In personal injury cases, are pre-existing injuries compensable (paid)? Plaintiffs injured in accidents deserve just and fair compensation under the law. Defendants and their insurance companies should be held responsible for related damages - medical bills, lost wages, loss of a normal life, and pain and suffering - that occurred as results of negligent, intentional, and reckless conduct. Defendants and insurers should be not responsible for plaintiffs’ pre-existing conditions, but should be held responsible and liable for making pre-existing conditions or previous injuries worse or more severe.

The difference between the quality of a plaintiff’s life before and after an accident or occurrence is the heart of any personal injury case. Even a minor injury, which affects the pre-existing injury, can have a major impact on someone’s life meaning that compensation is just and right in this situation.  

What to expect at Jury Trial?

At jury trial, the client can expect an emotional roller coaster with high points and low points, slow times and fast times, boredom and excitement, and most of all the client will have his/her "day in court." The jury will comprise of twelve (12) ordinary citizens, who will sit and listen in judgment to facts, testimony, evidence, and credibility of all persons. Most importantly, the jury will render a verdict either awarding money or not awarding money. Trials can last one day or one-year depending on the complexities and seriousness of the case.  

What is Compensation?

In personal injury cases, compensation is in the form of money. An injured victim has no other recourse but to seek just and fair compensation for economic and non-economic damages. An injured victim has the ability to seek damages, including but not limited to medical bills, pain and suffering, loss of a normal life, emotional distress, lost wages, and loss of future earning capacity. In limited circumstances, an injured victim or Plaintiff may seek punitive damages in matters involving willful and wanton conduct or intentional misconduct.

Why pursue my claim for damages in persoanl injury?

In the United States, you have the constitutional right to seek redress and compensation for damages in court, including the right to exercise a Trial by Jury. In a practical sense, many injured victims face large unpaid medical bills, lost wages or earnings, and the need for further medical treatment, which will equal more medical expenses. In addition, many injured victims are confronted with the reality that he or she will experience constant pain and suffering, will never work again, will never walk again, and will never enjoy the pleasurable aspects of life, such as golfing, biking, hiking, or other hobbies.

If you believe that you have been injured or wronged in a personal injury case, then contact Patrick G. King of King Law Firm, LLC (Personal Injury and Trial Lawyer) at (618) 462-8405 today to schedule a free initial consultation.

By reading this article or blog alone, it does not establish or create an attorney-client relationship.

About the Author:

Patrick G. King, a trial lawyer, practices in the areas of Personal Injury (Automobile/Car Accidents, Bike/Motorcycle Accidents, Construction Site Accidents, Dog Bites, Dram Shop, Injuries to Children, Motorcycle Accidents, Negligence, Premises Liability, Products Liability, Trucking Accidents/Semi-Tractor Trailer Accidents, Torts, and Wrongful Death), Criminal Defense (Felony, Misdemeanor, DUI, and Traffic), and Driver's License Reinstatement cases before Illinois Secretary of State at Formal Administrative Hearings. Patrick is licensed to practice law in Illinois and Missouri and actively represents clients in the following counties, Madison County, IL, Jersey County, IL, St. Clair County, IL, Macoupin County, IL, Montgomery County, IL, Greene County, IL, Calhoun County, IL, Bond County, IL, and Monroe County, IL. Patrick also represents clients throughout the St. Louis Metropolitan Area and Missouri.