WHAT FACTORS DETERMINE THE VIABILITY OF A PERSONAL INJURY CLAIM?

There are three things we need to factor in to prove you have a viable personal injury case, negligence, causation, and damages. Negligence means the legal liability of the other side for their conduct. We need to show it was not just an accident, but it was due to something the other party did wrong. Whether that is an adverse driver, a company that manufactured a defective product or a hotel that put down the wrong kind of tile and caused someone to fall. Without that, a case will not move forward. For example, if someone lets their dog off the leash and it bites someone, then that was the dog owner’s fault and that would be a good case. But if you walk up to a dog that is on a leash or in its own yard and you are bitten, then you really cannot blame the dog owner for that.

The second element is causation, which means that we have to show that whatever injury resulted was caused by that negligence of the defendant. A lot of times the plaintiff had other pre-existing injuries or other causes, other accidents that may have caused some of their damages. We need to separate those out and prove what specific injuries or aggravation of injuries was caused by the negligence of the defendant in our case. Finally, damages; it means the specific effects of the accident or wrongful conduct of the defendant which parts of the person’s body were injured.

We need a doctor to testify and prove that there was an injury that they can diagnose and that causes the person pain or any form of a disability. Likewise, if there is an economic injury such as wage losses, we need to show that the doctor had the person remain off work due to the accident. Many times people have near misses. They had a minor injury and they say they could have been killed. The fact of the matter is you only are compensated for what actually happened to you, not what could have happened. So even sometimes, a very severe accident that does not result in a major injury is really not a very good case.

Do Most Personal Injury Cases Settle Prior to Litigation?

Almost all of them do get settled at one stage or another. Over ninety-seven percent of cases in Hawaii are resolved without a trial. The reason is because it can be very expensive for both sides to go to trial. For the defense, and the insurance companies, they have to pay their lawyers by the hour, but the plaintiff, my client, does not have that problem. Eventually we will get reimbursed for all the expenses of going to trial which can take a bite out of the judgment or jury verdict. A lot of people do not want the stress of having to be in court for a week or even more for their trial. We make that as easy and painless as possible and prepare our clients. But still, if you are able to settle for a reasonable sum of money before trial, many people would prefer not to go through that experience.

It is an individual’s choice, and I tell my clients I will advise them on what I think is a fair settlement, but it is their choice whether they want to take that or roll the dice and go to trial. If they decide to go to trial, and they decide the settlement offer is not enough, then I would be one hundred percent in their corner and will fight for the maximum award that we can get. Seventy percent of my cases settle before we even file a lawsuit. I work up a demand packet for the insurance companies and send that to them. It includes a letter that is usually about ten pages in length. It explains in great detail how the accident happened, why we think that the other party is at fault, and the insured party is at fault. It explains the medical aspects of what my client has been through in terms of treatment and injuries suffered.

Finally, I really explore how this has affected their lifestyle, the physical symptoms that they are experiencing and the various things that they might not be able to do anymore or are less pleasant because of pain and suffering. They cannot do things on the same levels, such as sporting activities or even household chores. On top of that we do a detailed analysis of any wage losses that they might have suffered due to being out of work because of the accident. Most of my cases are more or less, at least in my firm, will settle based on the initial demand package and negotiations with the insurance companies. The other few cases or so, we will file suit, but again, many of those will eventually be settled before trial.

There are several other opportunities to settle a case between the filing of a lawsuit and a jury trial. Many times we setup mediation with a retired judge who will listen to both sides. Both sides get to hear each other’s points of view, and the mediator will help us understand the pitfalls of the case and help convince the other side that they should put more money on the table, and try to bring the parties together in a settlement. That can be quite effective. That succeeds about fifty percent of the time. Finally, if the case is not resolved through either direct negotiations or mediation, then a few weeks before trial, the judge who will be hearing the case, will hold a settlement conference, and at that conference he will talk to all parties and go back and forth between one side and the other meeting privately with them, serving the role of a mediator in a last-ditch attempt to get a compromise reached and settle the case without a trial.

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