Challenges in Building Personal Injury Cases

The following is an excerpt from an interview with a Virginia injury attorney at Price Benowitz, LLP.

What are some challenges for an attorney in a personal injury case?

In our jurisdictions, contributory negligence is a big challenge, but there are others. Causation can be very difficult to prove if someone has a history of multiple accidents or if someone has been receiving treatments for something and they get into another accident that then exacerbates the previous injury. If there is a big insurance company involved with nothing to lose, their job is to defend the case.  Slip and fall cases often result in very serious injuries, especially traumatic brain injury and concussions, but those cases unfortunately are not really looked upon as serious cases by jurors in many circumstances. It is difficult to convince a jury that a slip and fall case could result in serious permanent injuries. Juries often are afraid to award verdicts to injured plaintiffs because they fear that a plaintiff’s verdict will cause their own insurance premiums to increase. It is important for the attorney to show the jury why they should care about the injured person’s injuries and the negligent acts that caused them. Community safety is of paramount importance. If negligence goes without consequence, there is no incentive to engage in safe behaviors. Holding a company, employer, or individual responsible for their negligence can make a community safer and protect all members of the community, not just the injured person.

What must an attorney demonstrate in order to prove that a party was negligent?

For a negligence claim, an injured person needs to prove liability, causation, and damages. Liability is typically based upon a duty and the breach of that duty. Most of the time the duty is to use reasonable or ordinary care. In a premises liability case at a retail store, for example, there is a duty owed to the customers and members of the public whom the property owner is inviting onto their property to shop, eat, get their hair done, etc. They have a general duty to keep their premises in a safe condition. Likewise, if you are driving a motor vehicle, you owe a duty to drive with reasonable care. The duty and the breach of that duty form the basis of the negligence action. The attorney needs to prove that the defendant owed duty, that the defendant breached that duty, that someone was harmed because of the breach of the duty, and that the breach of the duty is what actually caused the damages claimed.

If someone breaches their duty, that does not ultimately mean there will be a successful action. There also have to be damages or harm caused by the breach of duty. The first step of that process is to put the other party on notice. In many cases, the case will settle without having to go into litigation, but there is typically no way to know whether a case will settle until the injured party has placed the at-fault party on notice and have engaged in communications back and forth pertaining to the facts of the incident, the damages claimed, and the basis for those damages. An experienced attorney will be preparing for trial right from day one and will shape every case as if it is going to trial, even though the majority of cases ultimately do not.