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April 25, 2020 by Greg Baumgartner
While every personal injury case is unique, each person and fact situation has to stand on its merit.
The best personal injury lawyers have learned through experience how to evaluate a personal injury case. Three factors are routinely used to assess every personal injury case.
These are the factors injury attorneys also use to decide on whether the case is one they will take. Because personal injury attorneys take cases on a contingent fee basis, they must be choosy to succeed in business.
The first factor that must be analyzed is the liability for the case. The liability factor must be one where the personal injury victim may prevail. That a serious injury occurred is not enough by itself to support a case.
The question is, “What did the potential defendant do wrong?”
Violations of rules or laws can be compelling evidence in a case. With most personal injury claims in Texas, the defendant must have been negligent in some way that caused the injury. This could be a truck driver violating safety rules that lead to a big rig crash.
Balanced against what the defendant did wrong is how the plaintiff or personal injury victim acted. Generally, if you want to retain a personal injury attorney, be prepared to say what the other party did wrong.
If the damages are significant enough, like in a wrongful death case, an attorney may choose to accept the case and then investigate the claim.
In evaluating the defendant’s conduct, the prudent attorney will assess the behavior of the potential plaintiff. What did the injury victim do that was legally wrong?
In Texas, we have a 51% rule: if the jury finds that the cause of the accident was 51% or more the plaintiff’s fault, then the plaintiff does not collect money from the personal injury lawsuit.
While the defense attorneys get paid by the hour, win, lose, or settle, the plaintiff’s counsel only gets paid if money is collected. For this reason, a personal injury attorney must also be a businessperson and picky about the matters they choose to work on.
If careful consideration of the accident concludes that the plaintiff did nothing wrong (or was less at fault than the defendant), the lawyer’s evaluation proceeds to damages.
Legal damages in Texas can include lost earning capacity, disfigurement, disability pain and suffering, mental anguish, medical expenses, and other potential damages, depending on the case. Also, in cases when a defendant’s conduct was reckless, punitive damages might be an option.
The damages are considered in a case evaluation because litigation is costly. Some cases are more expensive for Texas personal injury attorneys to pursue. Cases such as product liability or medical malpractice involve huge out-of-pocket expenses for the attorney.
Every case will have expenses for the lawyer, and even an auto accident case can have substantial out-of-pocket expenses to pursue, given doctors’ depositions and the fees they charge.
Finally, the personal injury evaluation needs to include the ability to pay damages. In many severe cases, an accident was the defendant’s fault, and the personal injury victim’s costs are high. Yet, inadequate or no insurance coverage is available to the injury victim.
A saying comes to mind–
“You can’t get blood from a turnip.”
That applies to Texas personal injury cases. Careful evaluation will conclude that damages can be paid. If one ends up with a worthless piece of paper that says you are owed money but can’t collect it, the lawsuit has no justice.
In short, in Texas, collecting damages means what liability insurance coverage is collectible if the case is won?
Law school professors often tell a class that a lawsuit can be a “personality contest.” In other words, the more likable the parties are more apt to prevail. This defines what justice in America should look like, But it is a harsh reality when 12 strangers decide on a case.
Still, it is a consideration for any reasonable personal injury attorney. If the attorney feels the client may be difficult for the attorney to work with, chances are the lawyer will decline the case.
Also, where there are multiple parties to a case, that can impact the division of fault.
A careful evaluation will balance a reasonable cost to pursue the claim for the personal injury victim against a range of expected damages. The lawyer will look at the predicted range of damages, the costs and time required, and insurance coverage.
If the claim does not look like one in which the attorney feels like they would be able to recover enough to pay for the work on the case, the attorney will likely not take the case. Some get upset when a lawyer declines a case.
However, a contingent fee lawyer must be picky about the cases they accept to stay in business.
However, the three primary factors, liability, damages, and ability to collect, are used daily by Harris County injury attorneys to decide if a case will be accepted.
Contact Baumgartner Law Firm for a free case evaluation for any accident in Houston, Conroe, or The Woodlands. Call our top-rated personal injury lawyers at (281) 587-1111 for a FREE Case Evaluation.
Baumgartner Law Firm
6711 Cypress Creek Pkwy, Houston, TX, 77069
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Since founding the Baumgartner Law Firm in 1985, Greg Baumgartner has established himself as a leading personal injury attorney in Houston, Texas, with a focus on representing severely injured accident victims and families who have suffered the loss of a loved one. His commitment to excellence in legal advocacy has earned him recognition from prestigious organizations, including Super Lawyers and the Top 100 Trial Lawyers and others. With decades of experience, Greg is consistently peer-reviewed and holds a preeminent rating, reflecting his dedication to achieving justice for his clients.
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