San Jose Personal Injury Lawyer
Personal injury law covers a wide variety of activities involving many different parties. In almost all personal injury cases, the common denominator is that a person was harmed by the negligence of another. The injured victim can recover monetary compensation from the negligent party if a San Jose personal injury lawyer can establish four elements:
- Duty: Although a special relationship between the two parties may create a special duty, most often the duty owed is to act as a reasonable person would do under the circumstances.
- Breach of duty: This is a failure to uphold the duty; for example, the negligent party acted unreasonably.
- Causation: The actions of the negligent party were the actual cause of harm to the victim.
- Damages: The victim suffered a measurable loss.
Types of Damages
Depending on the nature of the incident, there can be many different losses associated with a personal injury case. Among the potential damages recoverable by the victim are:
- Past and future medical bills
- Past and future lost wages and earnings
- Pain and suffering
- Mental anguish
- Loss of consortium/companionship
The most common type of personal injury case results from an auto crash. Thankfully, many are relatively minor and do not result in injury; some, however, result in severe injuries to the driver and passengers. Auto accidents inevitably involve insurance companies who actively seek to quickly and inexpensively settle the claim. It is almost never in the best interest of the accident victim to deal directly with an insurance company. Statistically, accident victims receive significantly higher settlements when represented by a San Jose lawyer, even when legal fees are factored in.
Slip and Falls/Trip and Falls
Two distinct fact patterns are involved in these cases: A slip and fall occurs due to some foreign matter on the walking surface, such as ice on a sidewalk, and a trip and fall occurs because of some issue with the surface itself, such as an uneven sidewalk. In either case, one of the primary issues is determining who is liable. It seems obvious to look to the property owner, but the possessor of the property, a tenant for example, may also be liable.
In many instances, more than one party may be liable. The victim may collect damages from any party at fault, but there are different rules for collecting economic damages versus non-economic damages. Additionally, the victim can also be held partially responsible for their own injuries; however, this is not necessarily a bar to recovery. Do not wait too long because the legal issues can multiply if they are not paid attention to right from the beginning.
Steps After Your Personal Injury
No one begins the day thinking that they will need the services of a San Jose personal injury attorney. However, when something goes terribly wrong and you suffer an injury, that’s exactly the help you need. Selecting a San Jose personal injury lawyer isn’t necessarily the first step in the process. Here’s a look at the things you can do to ensure that you have a stronger personal injury lawsuit.
The scene of an accident is chaotic. Whether it was a car crash, a slip and fall, or something else, chances are good that it attracted an audience. Moreover, emergency response personnel may have been called to the scene. In addition to all of that chaos, you were hurt, which means the accident scene may not be the best place for you to collect evidence. However, if you can begin documenting at the scene, you may be able to present a stronger case for your personal injury lawsuit. Evidence can consist of many things. Photographs of the accident scene can be indispensable. These can include photographs of damage and anything that gives an indication of where you were and what happened. Your San Jose personal injury attorney can use this evidence to help build your case. Your attorney will also be interested in your recollection of the events. Since things happen quickly after an accident it makes sense to keep a written record that includes everything you can remember about the accident and what happened afterward. This could include doctor appointments, missed days at work, and recording all of the ways that your life has been impacted by the accident.
Rely on Official Records
Medical charts and bills along with the official police report can be valuable evidence in a personal injury lawsuit. These documents are a record of the incident and the damage you suffered. You can obtain copies of all of these records simply by asking. Alternatively, if you move forward with hiring a personal injury lawyer, they can help gather this documentation.
Report the Incident
Chances are good that you’ll work closely with your insurance company as you make a personal liability claim. Of course, you can’t begin until you report the accident and how you were affected by it. It’s essential that you report the incident to your insurer as soon as possible, if it’s necessary. This allows them to take immediate action. Since your injuries are likely the result of someone else’s negligence or recklessness you may be working with their insurance company too. Keep records of all interactions you have with any insurance companies. Take detailed notes about who you talked with, when, and what topics were discussed. Make certain to hang on to any documents or correspondence received from an insurance company. Once again, all of this information can become evidence if you file a personal injury lawsuit.
Seek Legal Advice
Insurance companies don’t always act in good faith when it comes to paying claims. On the other hand, some people don’t have sufficient insurance or the right kind of coverage to adequately compensate the victim for their injuries. In these cases it becomes necessary to hire a San Jose personal injury lawyer. Most attorneys, such as those at the Costanzo Law Firm, offer a free consultation. This means that they will meet with a potential client, usually for about an hour, free of charge. The consultation provides an opportunity for the attorney and potential client to meet and discuss the situation. Potential clients tell the attorney what happened to them, and the attorney may ask questions to get a clearer picture of the details. The attorney may present options for proceeding with the case and discuss general matters related to the prosecution process.
Before Filing a Lawsuit
If the attorney and client agree to work together, it’s likely that the lawyer will begin an investigation to see if the defendant has sufficient assets and insurance to make pursuing the case worthwhile. An investigation that yields promising results may lead the attorney to accept the case. Occasionally, the attorney will refer the client to another practitioner or conclude that no viable case exists. If this occurs, potential clients can get second or even third opinions by meeting with additional attorneys.
Filing the Complaint
The attorney and client sign a representation agreement that governs their relationship. After this, the attorney drafts a complaint. When the complaint is filed, it is served on the defendant and the lawsuit officially begins. The defendant may be required to provide immediate notice of the lawsuit to their insurer.
Known as the discovery phase, this is one of the early steps in the lawsuit during which both sides gather evidence and share it with the other side. This is when the evidence gathered by the victim becomes important. The notes, photographs, and records can be used to prove or bolster the plaintiff’s case. Depositions may be taken, and both sides make attempts to settle the case before it must go to trial.
Arbitration and Settlement Conferences
Going to trial is time-consuming and costly. That’s why the American justice system is designed to help parties settle cases before they reach this point. In fact, most personal injury lawsuits never make it to the trial phase. They settle during arbitration or other negotiation efforts.
Going to Trial
While going to trial is rare it does happen. The trial may take several days, and a judge or jury usually has responsibility for making a decision regarding who was at fault and how much they should pay the injured party.
How Damages Are Established
San Jose personal injury attorney Costanzo Law Firm understands that lawsuits can be very complicated. While some personal injury claims are obvious, others can be difficult in terms of both establishing negligence against the respondent and then determining the actual financial value of the damages the victim incurred. Some damages can be easily quantified in discreet dollar amounts regarding medical bills and property damage, even though insurance coverage providers regularly contest award potential for both components of a case, but other damages can often be very unique to the particular injury claim. Lost wages are also recoverable as damages, and the formula for calculating these award levels can be very argumentative. Insurance adjusters are thoroughly trained to function as professional financial damage negotiators. However, all attorneys at San Jose personal injury lawyer Costanzo Law Firm are also trained in recognizing when an insurance provider is using bad faith tactics or purposely delaying the claim settlement in hopes of getting the injured claimant to accept an unfair low settlement offer. This potential situation is why it is crucial to have a legal negotiations professional representing your case when determining a fair and equitable settlement that makes the injured claimant whole in financial award recovery.
Establishing Negligence and Fault
The first component of establishing damages is for your San Jose personal injury attorney to present a crafted argument to the court that proves the respondent is responsible for the injury. Winning a personal injury lawsuit requires your San Jose personal injury attorney to prove that an accident occurred that resulted in the claimant’s personal injury, and further prove that the accident was due to the respondent’s negligence in exercising a reasonable duty of care regarding the personal safety of the plaintiff. If the negligent respondent has an insurance provider, that insurance company will also be allowed to argue the claim as well, so there is often more than one entity involved in the assessment of validity and financial value of a personal injury claim. This always complicates a case, and when multiple negligent parties are involved, the damage determination can be exacerbated again. Your San Jose personal injury lawyer will always be prepared for this multiple respondent predicament.
Determining Damages After Establishing Injury Responsibility
Once all parties officially recognize disregard to a reasonable duty of care by the claim respondent, the next step in the process is beginning payment of compensatory damage case components. There are two general types of damages. Those types are compensatory and punitive, termed as exemplary damages in some states, and the amounts of both can be debated when determining the value of long-term coverage for the injured plaintiff. Your San Jose personal injury lawyer realizes that some damages can be easily quantified, such as medical bills and property damage associated with the accident, but other damages such as lost wages recovery can be a real contentious issue when arriving at a fair settlement amount. Insurance adjusters are diligent in pursuing a release from further medical bill coverage for the plaintiff, and your San Jose personal injury attorney from Costanzo Law Firm can use this request from the defendant as leverage for increasing the amount of your claims arising from the injury regarding impact on your quality of life. This is where the severity of the injury and the resulting long-term physical outcome becomes very important when determining actual dollar damages.
Determining Economic Compensatory Damages
Economic compensatory damages are almost always settled first. These are issues such as medical bills, property damage, expenses commuting to medical treatment facilities, and potential replacement vehicle rentals. The value of these damages will be included in the amount of insurance coverage the respondent carries according to the caps on both personal injury and property damage. Where the legal claims get intense in when the parties are negotiating lost wages and long-term prognosis for employment. While some injuries can result in the injured victim being able to work, but not being capable of working in their prior employment position, the next determination issue can involve the level of disability. Insurance companies will attempt to classify an injury as a “partial” disability, but the government only considers total disability. Lost wages are economic compensatory damages, and calculations can include much more than just lost income for the time of inability to work. If the injured victim was employed in a labor-intensive employment field, such as construction, merely covering these lost wages while incapacitated is not sufficient. The potential difference in pay level associated with a sedentary occupation can also be recovered. Your San Jose personal injury lawyer at Costanzo Law Firm will expect this additional claim for damages to be defended vigorously and will use every factor supporting the claim in negotiations, such as the age of the injured plaintiff.
Determining Non-economic Compensatory Damages
Compensatory damages are classified in two categories. The non-economic component of damage determination is usually centered on pain-and-suffering and loss of quality of life, including loss of consortium. Loss of consortium legal standing is usually applied to the family and spouse of the injured victim, but the primary plaintiff can also claim a loss of consortium when serious or paralytic injury results are included in the claim. This determination is also an injury prognosis variable that can be argued strongly by the respondent parties, but the potential for continuing medical coverage for the injuries is often enough settlement amount concern for the negligent party that your Costanzo Law Firm representative can use this to settle the case for the cap with respondent insurance providers.
Determining Punitive Damages
Punitive damages are different from compensatory damages. They are not intended to provide financial award recovery for the plaintiff, even though they will be the recipient of the award in most cases. Courts do not have the power to assign punitive damages unless the injury case has gone to a full jury trial, including both criminal and civil. The outcome of a criminal case can impact the settlement of the civil case when the accident was egregious and the result of gross negligence by the actions of the accused party. Punitive damages are determined by the jury in the trial, and states also have the power to adjust those punitive damages according to state law. Some states will only allow treble damages, which are determined normally by combining all compensatory damages and applying a multiplication factor of three. Having an experienced and effective attorney means that the willingness to take a very serious claim to trial can be used in arriving at a maximum compensatory settlement to avoid a jury assessment. Punitive damages can also be awarded when your legal counsel can prove the responsible insurance company used bad faith tactics during the settlement negotiation, but this is usually a separate legal issue.
Contributory and Comparative Negligence Damage Adjustments
Many times the percentage of fault assigned to a plaintiff in states using these settlement reduction tactics can reduce the value of damages regarding an accident injury. However, claims against defective product manufacturers may not include this defense because manufacturers are held to strict liability standards, which means your attorney need not prove negligence in the claim. These are also separate legal cases, but can enhance the damage determination greatly with cases including multiple respondents, regardless of comparative negligence percentages.
San Jose Personal Injury FAQs
If you’ve been hurt and need help, you need an experienced San Jose personal injury lawyer to help you navigate the maze of insurance companies, medical bills, and attorneys looking to prevent you from getting the settlement you deserve. Personal injuries generally fall under two broad categories; automobile accidents and slips and falls. When these events occur and you’re harmed by the negligence of another person, you may have a personal injury claim. Under personal injury law, you may be entitled to payment of your medical bills, compensation for lost wages, and payments for pain and suffering and mental anguish. When working through a personal injury claim, there are several questions that you need ask your San Jose Personal Injury lawyer and have answered to ensure you’re getting everything you’re entitled to.
Does a Bodily Injury Claim Include Medical Bills?
Damages due to bodily injury include medical bills. Medical bills encompass bills for immediate treatment, plus any anticipated future medical bills due to the injury. For example, if you are hurt by tripping over something in the aisle of a store and break your leg, your bills for the ER and immediate orthopedic care are covered. Future physical therapy as well as expenses for any future medical bills as a result of the fall can be covered.
Will My Insurance Company Be Reimbursed from My Personal Injury Settlement?
If you are injured in an auto accident, your personal health insurance will pay your immediate medical costs. The majority of health insurance policies have provisions for repayment in the event of a settlement from a personal injury claim.
Am I Permitted to Receive a Copy of My Settlement Check?
Every ethical San Jose personal injury lawyer will provide you with a copy of your settlement check. It’s your right to review the settlement breakdown sheet before the check is deposited on your behalf as well as to receive a copy of the check. Typically, the insurance company paying the settlement will make the check payable to both yourself and your attorney, so you will need to sign the check so it can be deposited by your attorney into the firm’s trust account. Your lawyer should provide you with a copy of the settlement check and any other checks issued by the attorney from the settlement. If they don’t offer copies, ask.
I Have an Annuity from My Auto Accident Settlement. Can I Get Out of It?
The short answer is probably not. Insurance companies like to pay out settlements in the form of an annuity since this lets them fund the settlement over time, rather than all at once. Since the annuity was agreed to by the court as part of the settlement, you will need to petition the court to set aside the annuity. This is rare, however. Another solution is to seek out a company that purchases annuities that are part of a structured settlement and have them buy your annuity. These companies generally pay 20 to 50 cents on the dollar when they purchase your future payments. If you have an annuity that is due to pay out an additional $100,000, you may only receive $20,000. While you will get money up front, you lose over 75 percent of the remaining value.
My Child Received a Settlement. Can I Access Their Money?
Parents usually can’t access their child’s funds. This is done to protect children from parents who may not have their best interests at heart. The court generally puts the money into an account that can’t be accessed until the child turns 18, with the exception being made for withdrawals for the child’s care and well-being. For example, a child is injured in an automobile accident and sustains a significant head injury. Withdrawals can be made for the care of the child if they require an additional stay at a rehabilitation hospital.
Will My Lawyer Settle My Case without My Consent?
This depends on the agreement you signed when you retained your lawyer. You can sign an agreement that allows your attorney to settle the case and receive funds on your behalf. However, if your agreement requires your permission to settle and your attorney didn’t consult with you, stop the proceedings if you don’t like what’s being presented. If a check was issued, it can be returned.
Do Lawyers Receive Their Fees Before or After Medical Expenses Are Paid?
This depends on the retainer agreement you signed. It should explain how fees are paid. Some fees are calculated on the gross settlement before any expenses are paid, and some are calculated on the proceeds after expenses, which is a “net” settlement. Your San Jose personal injury lawyer should explain how the fees are calculated before you sign the retainer.
Is There a Minimum Settlement?
There are no minimums or maximums. Your settlement will depend on the nature and severity of your injury, the economic impact of the injury in terms of lost wages and medical bills, and how long your recovery is expected to take.
What Is an Average Contingency Fee?
The contingency, or attorney’s, fee is always negotiated based on how complex the case is. In California, a typical fee is 40 percent of the settlement. While this may seem high, take into account the experience of your attorney. Is it worth it to pay 40 percent to an experienced San Jose personal injury lawyer or less to someone fresh out of law school?
Contact a San Jose Personal Injury Lawyer for Legal Advice
Anyone in California who has suffered a personal injury should contact the legal professionals at Costanzo Law Firm at 408-993-8493 and let them evaluate the facts of your case for free and provide an in-depth assessment for the damage recovery potential of your claim. Having a knowledgeable San Jose personal injury lawyer can help you get the best settlement to meet your needs.