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 in which the personal injury victim may prevail. That a serious injury occurred, is not enough by itself to support a case.
Briefly, 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. As a general rule, if you are looking 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 investigate the claim.
THE 51% LIABILITY RULE IN TEXAS
In evaluating the conduct of the defendant, 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, which is if the jury finds that the cause of the accident was 51% or more the fault of the plaintiff, 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 be picky about the matters that 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 such things as lost earning capacity, disfigurement, disability and pain and suffering, mental anguish, medical expenses, and other potential damages depending on the case.
The damages are considered in a case evaluation because litigation is a costly proposition. Some types of 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 to 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.
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 of them, 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, to stay in business a contingent fee lawyer must be picky on the cases they accept.
ABILITY TO PAY/ INSURANCE
Finally, the personal-injury evaluation needs to include the ability to pay damages. There are many severe cases where an accident was the fault of the defendant, and the personal injury victim’s costs are high. Yet, there is inadequate or no insurance coverage 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 with can damages be paid. Ending up with a worthless piece of paper that says you one, the lawsuit is no justice.
In short, in Texas, collecting damages means what liability insurance coverage is collectible if the case is won?
Other factors that matter!
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 defies what justice in America should look like; But 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 one that is difficult for the attorney to work with, chances are the lawyer will decline the case.
But the three primary factors, liability, damages, and ability to collect, are used every day by attorneys in deciding if a case will be one, they will accept.