Justice is the stated goal of American law. When someone is hurt or injured because of the acts of another, American justice holds that the person who caused the harm must take responsibility for the hurt they have caused.
Personal injury law covers a myriad of situations from attorneys representing injured victims and their families on one side; and on the other, defense attorneys whose fees are usually covered by insurance companies as a part of an insurance policy or contract.
Injuries occur from countless causes: Auto accidents; swimming accidents; train accidents; plane crashes; slip and falls in grocery stores; injuries from dangerous products or dangerous drugs; medical errors; slander; legal malpractice; assault; nursing home abuse; dog bite injuries; false imprisonment; and intentional infliction of emotional distress are all addressed in personal injury law.
Lawyers know injury law as “tort law,” a term with its history in the system’s British ancestry. Torts are civil wrongs recognized in either state or federal law as grounds for a legal claim worthy of judicial (usually monetary) compensation. The civil wrong, or “tort,” can involve harm to someone’s body, their property, or their legal rights. Sometimes, a tort will involve breaching a duty that has been specifically defined and imposed by a state or federal statute.
Torts aren’t crimes, but torts can overlap with crimes. For example, an angry fan starting a bar fight after the Super Bowl may be arrested by the police for the crime of assault and he can also be sued by the guy whose eye he blackened – for the civil wrong, or tort, of assault. “Assaults” are both crimes and torts.
There are four legal elements to negligence: a duty of care to another; a breach of that duty; this breach causing actual harm to another; and actual damages resulting from the breach. Here, there is a viable legal defense in the phrase, “no harm, no foul”. Fall at the grocery store on a wet floor, and you may have a suit for negligence: the store has a duty to keep you safe from harm on its premises. Not hurt? Then you have no damages, and no tort exists.
Intentional torts are acts: someone consciously undertakes an action that he can reasonably foresee will cause harm to someone, and it does: someone gets hurt. Intentional torts include assault and battery, intentional infliction of emotional distress, and fraud.
Since someone has made an active decision to harm another in these instances, the law of intentional torts provides that victims can obtain not only damages to compensate them for their actual harm, but also punitive (or “punishment”) damages.
Strict liability torts are violations of specific statutes, where both the action and its resulting damage assessment have been pre-defined by a legislative body. Strict liability does not assess the amount of care exercised by the defendant in a situation, or his intent: it is based solely on evidence that a particular action occurred. If it happened, and it is proven, then damages are due. One example of strict liability involves any for-profit venture involving something inherently dangerous: the owner of a roller coaster will be held strictly liable for any injury sustained on the ride.
Since the goals of tort law are to compensate victims of the harmful acts of another, and to deter the same type of injuries in the future, tort law recognizes a wide variety of recoverable damages. Lost wages, lost future earning capacity, pain and suffering, medical expenses, and rehabilitation expenses can all be awarded to injury victims. Courts may also enjoin the defendant from certain actions or activities to protect the public in the future, such as shutting down a dangerous roller coaster or legally forbidding future sales of a dangerous product. Not all tort remedies involve awards of money.
All personal injury lawsuits must be filed within a certain time, or the claim will be barred by law. Each state legislature sets its own deadlines: those living in Tennessee have only one year within which to file some injury lawsuits, while those living in North Dakota may have as many as six years in which to file the same type of claim.
Attorneys practicing personal injury law usually specialize in this area, devoting their practices exclusively to helping injured victims and their families. Sometimes, they focus upon a single personal injury area. For instance, some law firms handle exclusively medical malpractice cases; others handle only motor vehicle accident matters.
Contingent fee contracts are arrangements common to personal injury litigation. Here, the client is not required to pay attorneys’ fees until the case is resolved through settlement or trial; the attorney bears a portion of the risk. What risk? The attorney risks that he will not be paid if the claim is unsuccessful, and in recognition of that risk, a percentage of the award is assigned by the client to the attorney as his contingent fee.
The amount of that percentage can vary from a third to as much as a half of the amount recovered, depending upon the complexity of the case. Contingent fees must be reasonable; unconscionable percentage will be held illegal. Clients who feel that the contingent fee is excessive can sue the attorney for overreaching, and they can file a complaint with the state legal ethics commission.