Category: Personal Injury

Everyone wants their injury case to resolve quickly and easily. However, sometimes that’s not the case. Every qualified personal injury lawyer is prepared to file a lawsuit and go to trial when they can’t reach an agreement. 

Even though most personal injury cases do resolve by agreement, a case may go to trial for several reasons.

Settlement Vs. Trial

A settlement is an agreement between two parties to end a legal dispute. Usually, a settlement involves one party paying another money, even if it is less money than desired. Settlements can also include other terms like waiving your right to sue or to collect future damages. 

A settlement is a desirable outcome because everyone avoids a stressful trial. Plus, it reduces the risk on both sides. One side may be worried about having to pay more than the settlement offer after losing a trial, and the other may be worried about losing and getting nothing at all.

On the other hand, a trial is a legal proceeding where a judge or jury listens to the evidence and decides on a legal issue. In a personal injury case, they decide if the defendant is at fault for the accident and the total damages. A trial can be long and expensive depending on the number of witnesses and amount of evidence in a case. 

Liability Dispute

One reason why a personal injury case may go to trial is that there is a liability dispute. If the defendant doesn’t agree to take responsibility for the accident, then they may not agree to a settlement. 

Instead, you’ll need to file a personal injury lawsuit and have the court decide who is at fault during a trial. The decision maker may be the judge or a jury, depending on the type of trial that you choose.

Unfair Settlement Offer

It is very common for a defendant or their insurance company to make an unfair settlement offer. Usually, these offers are very low and do not fully compensate you for your injuries. If your lawyer negotiates with the insurance company but they refuse to pay you more, then the attorney may advise you to file a lawsuit and go to trial.

In these cases, your lawyer is fairly confident that you will win your case and get more money than the offer if you have a trial. Ultimately it is your decision whether or not to accept a settlement offer or go to trial since you are the one who must live with the consequences.

Low Insurance Policy Limits

If you were in a car accident or have a product liability claim, the defendant may be relying on their insurance company to pay for your injuries. Most insurance policies have a limit and won’t pay anything beyond it. After all, that’s the agreement that we make when we pay for an insurance policy.

If you have serious injuries and need more money than what is allowed by the policy, you may need to file a lawsuit against the defendant. That means going to trial. If you win your trial, the defendant will be responsible for paying the full amount of damages, regardless of their policy limit. Their insurance company will pay out the policy and the defendant will pay the excess.

How Can Personal Injury Lawyers Help During A Trial?

A personal injury lawyer can help you immensely during a trial. Trials are complicated legal processes. They involve pre-trial preparations like:

• filing motions
• taking depositions
• collecting evidence
• hiring experts

During the trial, you need to:

• examine witnesses
• enter evidence
• make legal arguments 
• make objections
• follow specific court procedures in your region

Lawyers are trained to do each of these tasks. 

When people represent themselves in personal injury cases, the outcome is usually worse. That’s because non-lawyers don’t fully understand the law, the court procedure, or how to effectively make an argument. People who represent themselves can bog down the trial by making errors and mistakes that frustrate the judge and jury. This may result in losing the case and blowing your chance to get paid.

Contact an experienced injury attorney if you need help with your injury claim.

Without knowing the details of your case, it is impossible to determine how much your claim is worth, how long it will take to resolve, and how much you will get from your personal injury settlement. However, it is possible to list the elements of damages you might be eligible to receive, and it’s possible to identify some of the factors that will affect the timing of your case. 

Once you know this much, you can plug in the factors of your particular case and come up with a ballpark estimate. Florida personal injury law recognizes three main categories of damages—economic damages, non-economic damages, and punitive damages. 

Economic Damages

Economic damages are tangible, easy to count, dollars-and-cents damages that include items such as medical expenses and lost earnings.

Medical expenses

You should receive personal injury compensation for virtually all of your medical expenses. Two main limitations are:

• You might not receive compensation for fringe medical treatments such as homeopathy, and 
• If health insurance covers some of your medical expenses, you cannot receive a double recovery based on a personal injury judgment or settlement. 

If your injuries are long-term, you can receive anticipated future medical expenses. You might need an expert witness to prove the amount.

Lost earnings

Lost earnings include amounts you would have earned if you hadn’t missed work due to your injury. 

Diminished earning capacity

Diminished earning capacity includes earnings you expect to lose in the future because a long-term or permanent injury will prevent you from returning to your previous job. You might need expert testimony to prove the amount of your claim.

Miscellaneous economic losses

Your injuries might have forced you to place your children into daycare. You might have had to hire someone to do housework while you were incapacitated. All of this and more can justify compensation.

Non-Economic Damages

Non-economic damages compensate you for intangible losses. They often amount to far more than economic damages.

Pain and suffering

Pain and suffering damages compensate you for the physical pain and distress you suffered because of your injuries.

Mental anguish and emotional distress

Mental anguish and emotional distress damages compensate for shock, fear, disappointment and other purely psychological pain.

Loss of enjoyment of life

Your injuries might have impaired your ability to enjoy activities that once sustained you, such as exercise, playing chess with your friends, etc. 

Disfigurement and physical impairment

Imagine you suffered extensive facial scarring. Compensation for your physical pain and suffering wouldn’t cover the social stigma and humiliation you experienced as a result.

Loss of consortium

Your spouse’s injuries may have deprived you of their intimacy, companionship, and sexual relations.  Loss of consortium damages compensate you for these losses. Remember, it is the injury victim’s spouse that files a claim for loss of consortium.

Punitive Damages

The purpose of punitive damages is to punish the defendant, not compensate the victim. As the victim, however, you still receive the money. Only outrageous behavior by the defendant justifies punitive damages, and courts usually refuse to award them.

Factors That Affect the Timing of Your Claim

Most successful personal injury claims settle out of court. Following is a list of factors that might influence how long you have to wait to receive compensation. 

How long it takes you to reach Maximum Medical Improvement (MMI)

MMI is the point where your doctor decides that your condition will not improve any further. It is best to wait until you reach MMI to file your claim so that you will know how much to ask for. The longer it takes you to reach MMI, the more money you can ask for.

The amount of your claim

The more money you ask for, the harder the defendant will fight and the longer your claim will take to resolve.

The complexity of your claim

More complex claims take longer to resolve than simpler ones.

Your negotiating skills

The better your negotiating skills (or your lawyer’s), the quicker you can resolve your claim.

Whether you file a lawsuit

Filing a lawsuit can slow down the resolution of your claim but add to the amount of your damages. Most lawsuits do not proceed to trial.

Whether the defendant will settle

If the defendant stubbornly insists on trial, you will have to wait longer for your money.

Contact an Experienced Personal Injury Attorney for Help With Your Claim

In most cases, it takes a few weeks to a few months to settle a personal injury claim. If the case goes to trial, however, resolution could take a few months to a few years. Very few claims go to trial, and only in unusual cases does resolution take more than a year.
An experienced personal injury lawyer can help you maximize the value of your case and help move it along in an efficient manner. Contact a skilled personal injury attorney today to discuss your case.

When someone else causes another person harm or injury, the at-fault party can be held financially liable for damages. The victim could receive a personal injury settlement that includes reimbursement for their economic damages. The personal injury settlement could also include compensation for non-economic damages.

If a party is single, the settlement amount is that person’s property. However, what happens to a personal injury settlement in California or Nevada during a divorce?

California and Nevada Are Community Property States

Most states divide property in a divorce according to an equitable division between spouses. “Equitable” does not always mean equal. For example, a judge could decide that equitable is a 70/30 split or a 60/40 split.

However, California and Nevada are community property states. In a community property state, the spouses divide all marital assets equally during a divorce. Marital assets typically include all income and property acquired during the marriage.

Separate property refers to assets owned before the marriage. Additionally, inheritance and gifts received during the marriage are considered separate property. The spouse would need to commingle or convert the property to marital assets to be included as community property. 

When a spouse receives a personal injury settlement, it could be considered separate or marital property. It depends on several factors.

California’s Divorce Laws Related to Personal Injury Settlements 

In California, a personal injury settlement is separate property. California Family Code §781 states the settlement is not subject to property division. On the other hand, California Family Code §780 and California Family Code §2603 discuss personal injury settlements as community property. 

The laws seem to contradict each other. However, when you analyze the statutes, you find that personal injury settlements are separate property if:

• The injury occurred after the parents were legally separated or divorced
• A spouse causes injury to the other spouse
• The spouses were not living together when the injury occurred
• The injury occurred before the marriage

A non-injured spouse could claim a portion of the personal injury settlement. They could receive reimbursement for medical bills and other expenses they paid. 

A judge determines how to divide the settlement proceeds when personal injury settlements are community property. The judge considers each spouse’s economic condition and needs when determining how to split the proceeds. However, the maximum amount a non-injured spouse can receive is 50% of the personal injury settlement. 

In some cases, an ex-spouse could receive a portion of an ex’s personal injury settlement. However, the accident or injury would have had to occur before the parties were divorced, and the judge must determine the proceeds are community property.

Nevada’s Divorce Laws Related to Personal Injury Settlements 

Nevada also has laws that address personal injury settlements. Nevada Revised Statute §123.130 states personal injury settlements received before marriage are separate property. The settlement proceeds remain separate property unless converted to community property. 

A personal injury settlement received during the marriage could be community property. If only one spouse receives the settlement during the marriage, it is considered separate property. 

However, Nevada Revised Statute §123.121 refers to situations when the spouses file a joint action. The division of the settlement proceeds depends on how the money is classified in the settlement agreement.

For example, pain and suffering damages are paid to the person who sustained the injuries. Damages for loss of consortium are paid to the non-injured spouse. Settlement proceeds reimbursing the parties for medical bills and expenses are considered community property. 

Nevada law does not explicitly mention lost wages. However, a judge would likely consider a personal injury settlement for lost wages community property because income during a marriage is community property. 

Seek Legal Advice To Protect Your Rights and Best Interests 

The laws governing personal injury settlements during a divorce can be confusing and complicated. In addition, other factors could impact the outcome in your case. 

The best way to protect your right to a personal injury settlement during a divorce is to seek legal advice. Consulting a personal injury lawyer can help you keep a settlement award that should be your money.