Get the facts from a Personal Injury Lawyer:
An attorney will consider many factors in deciding whether or not to take a case. Essentially, a plaintiff has the burden to prove a few basic elements to possibly prevail on a personal injury case. Legally, this amounts to duty, breach, causation, and damages.
1. Duty & Breach.
Did the alleged defendant owe a duty of care to the injured person? A motorist owes a duty to operate their car so to avoid a collision. However, a motorist can cause a collision without breaching their duty of care. For example, a motorist that crashes because they had a sudden heart attack will not have necessarily breached their duty of care to other motorists, bicyclists, or pedestrians. For a motorist to breach their duty of care, they usually have to have operated their vehicle negligently. They cause a collision by failing to yield when turning, blowing a red light, or driving too fast for conditions or following too closely, etc. Did a homeowner or property owner to be negligent, they generally have to know of but ignore a dangerous condition, such as failing to remedy or warn about the condition.
Did the defendant’s negligence cause the accident or collision at issue? Did the defendant’s negligence cause the plaintiff’s injuries. A plaintiff needs to prove both of these elements. For example, the defendant admits their negligence caused them to rear end the plaintiff but they deny the impact was severe enough to have caused any injuries.
Are the plaintiff’s injuries consistent with the type of accident they claim caused their injuries. In other words, is there a mechanism of injury? for their injuries, given their accident? This may be common knowledge, or it may require the opinion of an expert, be it a medical expert, bio-mechanical engineer, accident re-constructionist, etc.
When evaluating these factors, the personal injury attorney will look at other mitigating factors as well.
- Is there a single defendant or possible multiple defendants.
- If there are witnesses, do they agree as to who is at fault?
- Was the plaintiff comparatively at fault such that they arguably contributed to the accident or their injuries? For example, front seat car passenger hits the windshield because they weren’t wearing a seatbelt, or a motorcyclist fractures his skull because he didn’t wear a helmet.
- Does the client have a prior medical history and/or pre-existing conditions that may complicate causation and/or apportionment of any injuries and treatment to something other than the subject accident?
- Can the attorney tell if there will be sufficient insurance coverage? For example, the client’s injuries are such that their claim is worth six or seven figures but the attorney can tell that the defendant only has a $15,000 insurance policy and the client has no UIM , or has minimal UIM coverage. If the defendant has no insurance, does the plaintiff has sufficient insurance that might still cover the injury claim?
- Will the case be expert intensive? A defective products case (eg: seatbelt, airbag, etc) and/or a medical malpractice claim often requires multiple experts, often from out of state. Costs can run six and seven figures. In such cases, the attorney needs to assess whether or not the client’s potential damages warrant such expenses and risks.
- How credible is the injured party, and the defendant for that matter. Let’s face it, a church going hard working individual will presumptively be more credible than a career criminal.
When weighing all of these factors, sometimes the attorney just follows his/her instinct. I’ve taken many small and/or difficult cases because I believe the plaintiff was a good person, wasn’t equipped to deal with things themselves, and needed a champion.
Even if we decide we can’t help you, we are almost always willing to talk to you about your case. I’ve experienced many instances where someone whose case I didn’t take in the past, calls me again in the future with a case I can help them with, something that would not likely have happened had I not spoken to them about the case I didn’t take.