Is Winning a Personal Injury Case Hard?

Law Blog

One of the first concerns people often try to address when initially meeting with a personal injury attorney is how hard will it be for them to win. There's no simple answer to the question, but there are a few things a personal injury attorney looks at when thinking about how hard a case might be.

Whether the Defendant Has Insurance

In many cases, this is one of the first signs that things will either be difficult or easy. A defendant who has insurance will almost certainly rely on the company and its claims adjuster to deal with the situation. That generally signals a straighter and easier path because the insurance adjuster has a duty to pay all valid claims where fraud isn't evident.

Conversely, an uninsured defendant has every right to forgo settling. That creates a situation where you may have to sue. Also, uninsured defendants often lack the money to pay. Consequently, you may have to go back to court to get a lien or garnish wages to collect any compensation you might win at trial.

Medical Issues

This isn't so much a difficult issue as it may be a time-consuming issue. Sorting out complex medical problems can take time, especially if doctors aren't able to give you a clear long-term prognosis right away. A personal injury attorney never wants a client to accept a settlement until they know exactly what happened to them and how well they'll heal in the long run. Figuring all this out can take months or even years. You may need to visit specialists; some cases even require exploratory surgeries.

Comparative Negligence

Another question that can make a case difficult is if the claimant was partially negligent, too. Suppose someone fell down a stairwell because a railing failed. Generally, that's a maintenance issue that falls squarely on the owner of the building. However, it might be complicated if the claimant was horsing around on the rail when it failed.

Typically, a claimant's comparative negligence is subtracted from the overall value of the settlement. For example, someone who was 20% responsible for their injuries in a $50,000 case would only get $40,000. Numerous states won't allow a claimant to pursue a case if they're mostly responsible for what happened, either.

Comparative negligence can become a major bone of contention that leads to protracted negotiations. Your attorney and the insurance company may go back and forth for a while until they reach a settlement.


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