“Personal injury” isn’t really a field of law. It’s a term used by lawyers looking for every type of case under the sun, everything from limited tort car accidents to dog bites. We have plenty of respect for lawyers that take limited tort car accidents, but, just like how the firms that really do well at those case tend to focus their work on that particular type of case, we focus our work on catastrophic injuries.
Most brain injury and spinal cord injury lawsuits involve a claim for negligence. (The exception is for cases involving a defective product, which are claims for negligence and strict liability.) To win a negligence lawsuit, a plaintiff has to prove four elements:
- A legal duty, which means there’s some requirement under law that the defendant be reasonable in their conduct to avoid hurting other people.
- Breach of the duty, which means the defendant didn’t use “reasonable care” or “the care of a reasonable person” when acting the way it did.
- Causation, which means the defendant’s unreasonable actions hurt the plaintiff.
- Damages, which means how much the plaintiff was hurt.
In some cases, the first issue is easy: the driver of an automobile has a legal duty to be reasonable when driving, for the safety of the others on the road. But in many cases the “duty” is disputed. Does a general contractor have a legal duty that runs to anyone who later enters a building they helped build? What about a subcontractor? Hotels have duties to their checked-in guests, but what about other people those guests brought to the hotel? The list goes on and on — and insurance companies never miss an opportunity to claim the defendant has “no duty” to keep others from getting hurt.
The second issue is always a battleground. I’ve seen cases in which drunk drivers have claimed that they were operating vehicles in a reasonable manner. The more complicated the defendants’ occupation, the more complicated the proof will be, and the more of a need for expert testimony — particularly if the defendant is a corporation, and not just a human being.
The third issue sounds simple — it’s usually obvious that the plaintiff was hurt by the accident — but it is always challenged by defense lawyers anyway. They’ll root out pre-existing conditions and claim that the plaintiff’s injuries are really the result of it getting worse. Sometimes they’ll hire doctors for “independent medical examinations” that aren’t at all “independent” and which end with the insurance-paid doctor saying the plaintiff somehow had a serious medical condition long before the accident. “Causation” is one of the key issues that requires a careful evaluation of the medical record.
The fourth issue is also typically clear from a common sense perspective: obviously the plaintiff was hurt. The challenge, however, is showing the full extent of those injuries to a jury of peers who have never known the plaintiff and have sworn to be fair and impartial. The old saying about “walking a mile in someone’s shoes” doesn’t apply in court, because there’s no way for a jury to get any real sense of what it’s like to walk a mile in the plaintiff’s shoes, much less to compare the plaintiff’s life now to their life before. Thus, it falls to the plaintiff’s lawyers to convey the severity and permanence of that change to the jury, and to do it within the confines imposed by the Rules of Evidence and the patience of the court and jury. More evidence of damages is not always better evidence.