Personal injury law or personal injury litigation is a broad term to describe the body of civil law which allows those who have been injured to seek legal redress against another due to their wrongful actions. The legal goal of personal injury law is to make the injured person “whole”, or in the same financial position that they would have been in if it was not for the wrongful conduct of another. While in certain circumstances there may be some overlap, unlike criminal law, personal injury law only involves the exchange of money. That is, the wrongdoer is not charged with criminal penalties during a personal injury lawsuit, but rather is ordered to pay civil penalties in the form of financial compensation awarded to the injured party after a trial.
There are two bodies of law which govern personal injury law—common law and statutory law. Common law, sometimes referred to as “judge-made” law, is the body of law which is derived from previous court holdings. Statutory law is the body of law which is codified by legislative bodies, both state and federal. Often, prosecuting a personal injury lawsuit requires reliance on both common and statutory law.
After assessing the facts surrounding your injury and relevant body of law, the decision to file your personal injury lawsuit will be made. This decision is one which is not made lightly and will only be made after a thorough investigation and weighing the pros and cons of filing a lawsuit with your personal injury lawyer. If the decision is made to pursue the negligent party responsible for your injuries, a lawsuit will be filed on your behalf.
What is a Personal Injury Lawsuit?
A personal injury lawsuit is a civil court action which seeks to hold another accountable for the injuries they caused. These lawsuits can result from a number of different things, such as car accidents, trucking accidents, medical malpractice, or defective products. In addition to the cause of injuries varying, so too is the theory of liability.
Types of Personal Injury Cases
As previously stated, there are a number of different types of lawsuits which can be considered personal injury lawsuits. Some of the most common types of personal injury lawsuits include:
These examples of personal injury cases are in no means an exhaustive list of the types of personal injury lawsuits which can be filed in Texas. If you have suffered an injury as a result of another’s conduct, you can likely file a personal injury lawsuit.
Theory of Liability and Filing the Lawsuit
When filing a lawsuit, the injured party, known as the Plaintiff, must identify the grounds for holding the wrongdoer, known as the Defendant, liable for their actions. These theories of liability are often based on negligence, intentional conduct, or strict liability. Once the theory of liability has been established based on the type of personal injury lawsuit, your personal injury attorney will draft a petition or complaint, depending on whether the case will be filed in state or federal court, and file it in the appropriate jurisdiction. For example, if your injuries occurred in Houston, your lawsuit will likely be filed in Harris County District Court.
Once the lawsuit has been filed, the parties will engage in written and oral discovery. Written discovery, which includes requests for production, interrogatories, and requests for admission, allow the parties to request and obtain the documents and information necessary to prosecute or defend their case. Similarly, oral discovery, which include depositions, allow the parties to obtain sworn oral testimony prior to the trial. These documents, information, and testimony allow the Plaintiff to prove their case, as well as allow the Defendant to defend against the claims brought.
The scope and duration of discovery is governed in Texas by the Texas Rules of Civil Procedure, as well as any local rules the judge may have. A failure to abide by the discovery rules set forth in the Texas Rules of Civil Procedure or by the Court can result in sanctions levied against you or even the judge dismissing your case.
Settlement and Alternative Dispute Resolution
During the course of a lawsuit, generally after some discovery has been conducted, the parties may engage in either informal or formal settlement discussions. Fortunately for the parties, both Texas law and federal law have rules of evidence which allow the parties to engage in open and honest settlement discussions without the fear of those conversations being used against them during the trial. Codified in Texas as Texas Rule of Evidence 408, this rule states:
(a) Prohibited Uses. Evidence of the following is not admissible either to prove or disprove the validity or amount of a disputed claim:
(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made during compromise negotiations about the claim.
One practical way in which Texas Rule of Evidence 408 is utilized for settlement purposes is during Alternative Dispute Resolution (“ADR”) programs, such as mediation.
Mediation is a private and confidential process which those involved in a civil lawsuit can use in an attempt to settle their dispute. Using the shield of Texas Rule of Evidence 408, the parties can have a good-faith dialogue regarding the strengths, weaknesses, and value of the case in an effort to resolve the matter prior to trial. Most mediation begin with a general caucus. During this time, all of the parties will be in the same room with the mediator, an impartial third party who will assist the parties in getting the matter settled. After welcoming remarks from the mediator regarding the process, the Plaintiff’s attorney will provide a short presentation of their case and the evidence supporting the same. Thereafter, the Defendant’s attorney will present their defense and supporting evidence. After the opening caucus, the parties will enter separate rooms to have private and confidential conversations with the mediator. The mediator, relying on his training, will then carry offers of settlement back-and-forth, and will help both sides evaluate the merits and demerits of their case. If, after the end of the day, the parties are able to resolve their disputes, they will enter into a mediated settlement agreement, resulting in a dismissal of the lawsuit. If a settlement is not reached, however, the lawsuit will continue in the Court and nobody can discuss or disclose what was discussed at mediation. Additionally, neither the judge nor the jury are made aware of what occurred at mediation.
Trial of a personal injury lawsuit can occur one of two ways: before a judge or before a jury. If the case is tried to a judge, known as a bench trial, the judge acts as both the finder of fact as well as the one to makes the rulings of law. If tried to a jury, the jury will serve as the finder of fact and the judge will make only the rulings of law. In the instance of a jury trial, the jury will hear the testimony and evidence, make a determination of what is factual, and then apply those facts to the law, which a judge will instruct the jury to use to make their ultimate findings in reaching their verdict.
To be successful at trial, most personal injury lawsuits require that the Plaintiff show that the Defendant was negligent. In Texas, this requires that the Plaintiff, who carries the burden of proof, to prove:
If a Plaintiff can prove these elements by a preponderance of the evidence—the evidentiary standard for civil trials in Texas—a Plaintiff can recover for their injuries.
If successful at trial, a personal injury Plaintiff is entitled to compensation for the injuries sustained as a result of the Defendant’s negligence. While the specific types and amount of damages to be awarded by a jury depend on the type of personal injury suit brought, as well as the theory of liability asserted, there are categories of damages which are available to all personal injury Plaintiffs, including out-of-pocket past and future medical expenses and recovery for property damages. The specific amount of the award will be determined by the jury after seeing the admissible evidence and hearing from competent expert and fact witness testimony on these issues.
Do I need to hire a Personal Injury Lawyer?
Must you hire a personal injury lawyer if you have been injured? No. Should you hire a personal injury lawyer if you have been injured? Absolutely, yes.
In most circumstances, Texas law allows an injured person to represent themselves in court, pro se. Doing so, however, is not advisable. When representing yourself in Court, the judge will treat and hold you to the same standard as a lawyer. That is, the judge will make you fully comply with the Texas Rules of Civil Procedure, the Texas Rules of Evidence, and any other statutory or regulatory guideline which all lawyers must follow. What is more, the Defendant in your lawsuit will be represented by an attorney to fully protect their interests. Simply stated, if you represent yourself, you place your case and ability to recover for your injuries in grave danger.
By hiring a personal injury attorney, you are ensuring that a trained and knowledgeable advocate is in your corner. A licensed Texas attorney will not only understand the applicable law, but their access to qualified expert witnesses and relationships within the legal community allow for more effective representation.
How much does a Personal Injury Lawyer Cost?
Most personal injury attorneys do not require clients to pay any up-front attorney’s fees or case expenses, nor do most attorneys require their clients to pay if there is no recovery. This is known as a contingency fee agreement. Under a contingency fee agreement, one does not pay any hourly rate for the time their attorney works on their case. Instead, in the event of a recovery, the attorney receives a portion of the amount recovered on your behalf. If there is no recovery, the client does not owe any compensation to the attorney.
Why Patrick Daniel Law?
Preventable injuries due to another’s wrongful conduct or negligence is Patrick Daniel Law’ sole area of practice. Our attorneys’ knowledge and experience in the area of complex personal injury litigation allow us to provide passionate, detailed-oriented representation to our clients. Whether your injuries are a result of a car accident, trucking accident, medical malpractice, or as a result of a defective product, our team will assist you in seeking the justice you deserve.
Please contact us at 713-999-6666 and let us know how we can help you, or send us your case information for a free evaluation here.