Hard To Prove Personal Injury Cases
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All the attention paid by the media to multimillion-dollar settlements and verdicts can make it seem as though people are cashing in left and right on personal injury lawsuits that anyone could have filed.
For every one of these high-profile cases, there are countless cases where victims recover small settlements, or no settlements at all. That’s because most personal injury claims are hard to prove, either because there is questionable liability or questionable damages.
READ (From Alan’s Blog): SETTLE YOUR INJURY CASE OR FILE A LAWSUIT: WHAT’S BEST FOR YOU?
So, while the 24-hour news cycle might make it seem like the vast majority of plaintiffs are getting enormous damage awards, large settlements and verdicts are actually very rare.
What Factors Make a Claim a Hard to Prove Personal Injury Case?
According to personal injury lawyer Alan Sackrin, two factors make cases hard to prove and settle and are the main reasons why lawyers give back cases or reject cases outright: questionable liability and/or questionable damages.
“Slip and falls in Florida are the best example of questionable liability, because you have to show that the defendant knew or should have known of a dangerous condition and did nothing about it,” Alan says. “A lot of times, that’s very difficult to prove.”
Difficult, he says, because defendants are often less than forthcoming with information—such as incident reports or names of witnesses—that could hurt their defense.
One example of questionable liability, Alan cites, is a case he tried where there was a slippery surface near the entrance of a national store.
“It seemed wet,” he says. “What made the case difficult was that the slippery area wasn’t near any refrigerated equipment and they didn’t have any surveillance cameras in that area. It was quite difficult to prove that they knew or should have known about it.”
The plaintiff in the case didn’t know how long the wet surface had been there or why it was there, which made proving liability difficult. In these kinds of cases, Alan says it’s important to file the lawsuit as soon as possible.
“You want to file quickly, because you can learn things through discovery,” he said. “If there is surveillance or security cameras, you can ask for the footage from a half-hour or an hour before the incident. They’ll also have to tell you the names of store employees who were on that day and who came to the scene of the incident. Maybe you get lucky with an incident report.”
In this case, the plaintiff had fractured her wrist, and while an incident report was created, the store objected to providing it. Fortunately, the trial judge allowed Alan and his client to receive the report.
“The incident report showed that there had been a spill of suntan oil that they knew about and had mopped up, but it wasn’t cleaned up properly and left a residue all over the floor,” he said. “Before I had even gotten the report, I had taken the deposition of the store manager, who totally lied about it. I confronted her with the report later and asked her if we should believe what she wrote right after the incident or what she had said in her prior deposition.”
The jury found the store 100% liable for the injury and awarded Alan’s client damages, which in today’s dollars would have surpassed 6 figures.
“It was the right award, and in that case, it worked out,” Alan said.
In the same way a judge or jury can find for the defendant if the liability isn’t clear, they can do the same when damages are difficult to prove.
“If you are going to have questionable damages, you’re going to want to make sure your liability is really strong,” Alan says.
A good example of questionable damages is when a person has a pre-existing condition and is involved in an accident of some kind where there is clear liability.
“The defense doctor will always say either surgery wasn’t needed, or it wasn’t related to the incident, or both,” Alan says. “But if it’s a major surgery, you have to prove causation, where the accident was a legal cause of the damages.”
That’s not always easy to do. Alan recalls an example of a man with a pre-existing back condition who was involved in a minor car accident and opted not to go to the emergency room. There was no question of liability in the case; Alan’s client had been rear-ended by another vehicle.
“His back started bothering him later that night, and he went to a doctor a few days later, complaining of radiating pain,” Alan says. “He had an MRI years earlier, where it was discovered he had a herniated disc. He had another MRI after the accident, and it showed he needed surgery.”
While the herniated disc wasn’t caused by the accident, the accident clearly aggravated the injury, Alan says.
“The question for the defense becomes whether the operation or the herniated disc was caused by the accident, and whether the surgery was necessary, reasonable, and related,” Alan says. “I’ve had many of those. That’s probably the most common example of questionable damages.”
If the injury is significant enough, regardless of the questionable nature of the damages, Alan says you litigate it and hopefully, you can reach a settlement and obtain compensation.
“That’s why we take those cases,” he says. “Now, if someone has a fractured rib or a bruised rib and six weeks later the person’s fine, you’re not going to file a lawsuit in that case.”
Typically, a settlement with an insurance company is the desired outcome. Going to court with a personal injury case that entails questionable liability or questionable damages is a big gamble. The judge or jury could find in your favor or they could find in favor of the defendant.
Or they could find both parties had some degree of negligence. That’s called “comparative negligence.”
This means even if you were found to be 90% negligent for the incident, you would still be entitled to recover 10% of your damages from the other party. The greater your negligence, the lower the award.
What Should You Do?
In Florida, a large percentage of personal injury cases fall under the category of being hard to prove. The bad news is, more often than not, these cases end with victims not recovering any compensation. For this reason, it is important to find a lawyer who knows how to properly evaluate a case and has experience with litigating these cases against the insurance company lawyers.
The truth is, most personal injury lawyers either turn down these cases, return them to the client (or drop the client) or refer the victim to a personal injury trial lawyer like Alan. That’s because most personal injury law firms are not designed to handle these cases.
If you have a hard to prove personal injury case, then a good piece of advice is talk with an experienced personal injury trial lawyer. Most personal injury lawyers, like Alan, will gladly offer a free initial consultation to answer your questions and tell you if you have a case worth pursuing.
Get a Free Consultation – Call Alan Today at (954) 458-8655
Contact an expert Personal Injury Trial lawyer to find out how he can help you and answer your questions. You can contact Alan by phone at 954-458-8655 or by filling out the “Talk With Us” form at the top of this page. You can also email us through this website. He offers a free initial consultation.