Personal Injury FAQ
What is a personal injury?
A personal injury claim usually begins with some wrong or damage being done to you or someone you are acting for, such as a child or a deceased family member. While it includes the invasion of any legally protected interest, we are usually dealing with bodily injury, which includes physical pain, illness or any impairment of your physical condition, as well as any out-of-pocket expenses that arise as a result of the wrong done to you. “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
While personal injury claims may be based upon a purposeful act or acts by the wrongdoer (defendant), they are usually based upon simple negligence. If the defendant was grossly, or willfully and wantonly negligent, a court may allow for punitive damages (that is damages which seek to punish rather than just reimburse for the actual loss) in addition to actual damages.
How are personal injury claims handled?
Most personal injury cases can be resolved by negotiation with the adjuster for the defendant’s insurance company. However, if negotiations fail a Complaint at Law must be filed. These kinds of injuries are almost always pursued in a civil court, usually in the State’s circuit court, in the County in which the incident occurred, though there are a number of exceptions to this rule. In Illinois and Indiana, the State courts are found in the County seat of every County in the State.
What type of awards can be received?
In general, you are entitled to recover for any “actual damages” that were proximately caused by the wrongful conduct of the defendant.
Actual damages refers to the amount of money that it would take to fully compensate the injured party, and place that person in the same position they would have been in had the injury never taken place. In the case of bodily injury, this could include the loss of use of a body part, the value associated with a permanent disfigurement, the value of any increased risk of disability or death, pain and suffering, out-of-pocket costs and expenses that arose as a result of the wrong, and lost wages.
Actual damages may be awarded for negligence which causes death, permanent injury or any hurt or damage to the person, such as a bruise or a broken limb. While the phrase is mostly used in connection with actions of tort for negligence, it is often used in a much wider sense, such as including any injury which is an invasion of personal rights, like libel or slander, and under certain circumstances may include mental suffering.
What is negligence and how is it proven?
To prove negligence, it is necessary to prove each and every element of negligence by a preponderance of the evidence. The elements of a cause of action for negligence are: duty, breach of duty, causation and damages. That is, to prove negligence it is necessary to prove that the defendant owed you a duty of care, that the defendant breached that duty and that the defendant’s breach of duty proximately caused you to suffer damages.
Generally, when we speak of the negligence necessary to make the defendant liable for personal injuries, we are referring to the failure of that person or business, to exercise that degree of care which is appropriate under the particular circumstances. This is often established by a judge or jury comparing the action or lack of appropriate action on the part of the defendant to that of the “hypothetical man” or “reasonable man” using ordinary prudence in the same situation. Pointing out violations of statutes or other written standards may help a jury, but ultimately it is a matter of determination based upon all of the circumstances and facts in each case. These claims need only be proven by a preponderance or the greater weight of the evidence.
When we use the term “proximate cause,” we are referring to any cause which, in natural or probable sequence, caused the injury, ailment or condition or an aggravation of a preexisting injury, ailment or condition. Of course, a defendant’s negligence need not be the only proximate cause of your injury, but may simply be a proximate cause of your injury.
Who is qualified to handle personal injury claims?
Following this narrative, you will see an extensive list of the types of cases that may be included under the heading “Personal Injury”. Clearly, personal injury claims of any serious nature should be pursued by attorneys who are experienced and knowledgeable in the field of litigation. They should be very familiar with the human anatomy and be able to understand medical reports. It is important that an attorneys help you to obtain the proper medical care and treatment, neither encouraging unnecessary tests or treatment, nor ignoring needs you may have for proper treatment to improve your condition and demonstrate the seriousness of your case.
Good personal injury attorneys will know about the doctors and other health care providers, including the abilities of the medical care facilities in the area. They will know enough about the types of injuries that are commonly seen in these cases to discuss knowledgeably with you the various possibilities and make you aware of what to watch for and “notice about yourself”. They will advise you on how to keep track of these matters so that they can be well presented by him to an adjuster, or if litigation is necessary, at your deposition and possibly at trial testimony. They will have an understanding of the kinds of evidence necessary to substantiate your claims and know how to make a jury aware of and appreciate the kind of pain and suffering you are going through.
Educating a jury or an adjuster is particularly difficult in soft tissue injury cases, like whiplash. They are the kinds of cases often denigrated by the typical insurance adjuster and even juries. Soft tissue injuries often involve muscle tear, bulging discs, pinched nerves, stretched ligaments or pulled tendons, amongst other things. People who have not lived with such injuries do not appreciate their seriousness nor how long they may cause a person to be severely limited in their physical activities and pain.
The loss of enjoyment of life should always be considered in order to paint a complete picture of what the client is experiencing. The effect on spouses, children and other family members should never be overlooked. In fact, a husband or wife may have a claim for loss of consortium, which may include the loss of conjugal fellowship between husband and wife, and the right to the company, society, cooperation, affection and aid of each to the other. It also encompasses material services that are common to the marriage contract, such as helping care for the children, work around the house, cooking, etc. Long term or permanent injuries to a spouse are often the source of serious marital problems and a good attorneys will recognize this fact and advise them on how they can deal with that issue also.
Serious bodily injury may require the attorneys to assist them in obtaining vocational rehabilitation, education or retraining to do a type of work they can handle despite any disability. If the person’s condition is too severe for any kind of work, the attorneys should assist in getting benefits such as Social Security Disability, etc. See our discussion under Social Security.
Our firm has over 45 years total experience in the practice of law throughout Illinois. The vast majority of it has been devoted to seeking fair and full recoveries for individuals killed or seriously injured as a result of someone else’s negligence. Doyle Law Team consists of a team qualified to handle cases ranging from soft tissue injury to wrongful death. Please see the examples of recoveries we have made on behalf of individuals for personal injury, wrongful death or medical negligence listed under the heading Our Results.
What are the fees and costs?
At Doyle Law Team, p.c. we do not normally require any payment into the trust account for costs on personal injury claims of any kind. We will advance those costs by paying them out on your behalf as necessary. Costs are matters that require a check to be sent out of our office. They may be for medical reports, technical experts such as crash reconstruction specialists, filing fees, subpoena costs, etc. Costs are usually recovered at the time of a settlement or award being paid out in your case.
Fees, which is the amount that an attorneys is entitled to earn from the total settlement of the case, are charged on a contingency basis. Contingent Fees are defined as an arrangements between attorneys and clients whereby the attorneys agrees to represent the client with compensation to be a percentage of the amount recovered. 1/3 or 33 1/3% is the common contingent fee for most personal injury cases. Simply put, it means the attorneys earns no money and do not get paid anything, until there is a recovery actually paid out and received in the case.
In our office, we present you with a written agreement that fully sets forth and limits our contingent fees, and we promise to take the case on a strictly contingent fee basis if we accept the case after speaking with you. All other matters are fully reviewed orally, and you may take as much time as you may wish in order to review the contract. There is never any pressure, just because you came in to speak with us about your case to make an immediate decision about representation. Once you give us the facts, we are happy to discuss your claim and try to answer your questions. There is never any charge for that initial consultation. You need only call the office, give a brief description of the facts and circumstances to the attorneys or other legal professional over the phone and an appointment will then be made to see you. These appointments can usually be set within a few days of your call.
Is there a time limit on my claim?
Yes, in all types of cases, there is either a statute of limitations or statute of repose, or both. A statute of limitations imposes a time limit within which one must file suit or forever lose their claim. A statute of repose sets an outside limit upon which one can file suit, regardless of the issues of discovery of wrong doing, etc. For instance, a product liability case may involve the recent discovery of the faulty design of a product, but the manufacturer cannot be sued if the product was manufactured 12 years ago as the statute of repose (11 years) has elapsed.
The most common statute of limitations in personal injury cases is 2 years, but there are many exceptions so one should contact a personal injury attorneys promptly. For instance, a dram shop action (one brought against a tavern for serving liquor to the defendant until he or she became intoxicated or continuing to serve him or her after they were intoxicated) has a statute of limitations of only 1 year in Illinois. There are a variety of matters which may effect statutes of limitations so it cannot be adequately discussed in this limited space and should be determined by the attorneys after he has all of the facts in front of him.
What if the adjuster has already made me a good offer?
First, it should be noted that most people don’t really know what a “good offer” constitutes. Therefore, even if they believe that the offer seems fair, they should consult with a responsible attorneys. A responsible attorneys would be willing to handle their case, should he feel this offer is not acceptable or sufficient, on a contingency for a percentage of any recovery he is able to gain above and beyond the written offer you already have. Be sure and get the adjuster to reduce any alleged offers to writing. If the adjuster will not do so, there are probably “hooks” which may be involved. Is the settlement offer for your personal injury in addition to any property damage? Does the settlement include or exclude medical pay which may have been made by your insurance company, who has a lien against the defendant’s insurance company for that amount? What about unpaid medical and prescription bills still outstanding? There are many details to consider.
A meeting with the attorneys should cover some of these points and, if the offer is truly close to the actual value of your case, a good personal injury attorneys will tell you that so that he doesn’t waste his time or yours and you can take the money with a little more assurance that it is an appropriate amount. However, keep in mind that these offers are often made at a very early stage and there are many times we see individuals who have residual, long term medical problems they weren’t aware of at the time they signed a release. Once a release is signed, it is almost impossible to re-open the case as you have agreed that this is all the compensation you will ever receive for this injury. Again, such consultations to advise you whether to take an offer on the table or obtain representation are free of charge at Doyle Law Team.
If you have time, please read Our Philosophy and, if you have questions about your potential personal injury claim, please do not hesitate to call and make an appointment. If you can, Illinois Traffic Crash Report in and all other papers and names that you have at your disposal so that we can give you the best possible answers, all of which is without obligation or cost of any kind.