FAQs - Law Firm Larry R. Demerath Attorneys Omaha, Nebraska

Personal Injury FAQs

Do I have a case?
Do injury claims always go to court?
How long does it take to settle an injury claim?
How much will it cost to hire a Personal Injury Attorney?
Can I be compensated if I am partially at fault?
If I was injured in a DWI accident, do I need an attorney?
What information should I gather at the accident scene?
What will a Personal Injury Attorney do for me?
Similarly, if you know you don't want to go to trial, you shouldn't file a lawsuit.
What documents should I bring with me when I meet with a lawyer?
What can I expect at the first consultation?
How long should I wait before contacting a lawyer?
How is fault proven in an injury causing accident?
What theories of law apply to a personal injury case?
Should I give a recorded statement to an insurance adjuster?
What Amount of Money is “Fair Compensation” For my Personal Injury Claim?
What do I do if the other driver doesn't have insurance in an Automobile case?
What are Uninsured/Underinsured Motorist Benefits?
What is Personal Injury Protection (PIP)?
How do I file an injury claim?
I have a personal injury question that you have not answered.

Do I have a case?

An injured party is referred to as the plaintiff. In our state, the Plaintiff has the burden of proof. This means, you will have to establish the legally required facts in your case, or you will not be entitled to any recovery. Each case can be thought of has having three main areas in order to be successful: liability, causation, and damages. Only a competent personal injury attorney can accurately help you evaluate the likelihood that you have a case and can assist you in reaching a decision as to whether you want to pursue a claim.

In order to have a case, there must be a third party who is liable to you. This depends in on the facts and what type of claim you are bringing. Usually, if there is a liable person in a personal injury case, they will have committed a negligent action which caused your injuries. In order to prevail on a claim of negligence, the facts must clearly demonstrate: (1) negligence or failure to meet the standard of care; and (2) that the negligence caused you harm or injury. However, having confidence that liability can likely be established is only part of the picture.

The other part of the picture is damages. The harm or injuries you have suffered must be significant enough to justify the expenditure of time, energy, and resources that are required to bring a successful claim.

The chances of success of a claim depend on the individual circumstances of your case. A personal injury attorney can advise you of the possibility of success of your particular case.

Do injury claims always go to court?

Fortunately, most claimants are not subjected to the stresses of litigation, and many cases are settled out of court. However, when the defendant's or insurance company's offer of settlement is too low or questions of liability remain, the facts and damages of a case may need to be decided by a jury or a judge. The decision to settle a case or file a lawsuit is one of the key decisions a lawyer can assist you in making.

How long does it take to settle an injury claim?

Time to conclusion depends largely on the circumstances of the injury, the nature of the at fault party, the insurance company, the insurance adjuster and the attorneys involved. There is a wide time range for settlements, and that timeframe changes substantially if a claim escalates to an actual lawsuit. A personal injury attorney will be able to give you more information after a thorough evaluation of your specific circumstances.

How much will it cost to hire a Personal Injury Attorney?

There is no fee for talking to a personal injury attorney about your claim; initial consultations are free. Generally in personal injury cases, once an attorney makes commitment to represent you and/or your family, they only charge an attorneys’ fee when they are successful in obtaining a recovery for you. This fee is calculated as percentage of the recovery. Most times, all expenses necessary for pursuing an injury claim will be advanced by a personal injury attorney. If an attorney is successful in obtaining a recovery for you, case expenses, will be reimbursed from your portion of the client’s recovery. If at the conclusion of the case, nothing is recovered on your behalf, you generally will not owe the attorney for any attorneys' fee or any case expenses.

Can I be compensated if I am partially at fault?

If you are partially at fault, you may still be entitled to receive a percentage of the compensation you would have normally received. The amount depends on the percentage of fault assigned to you. Until that percentage has been established by a judge or jury, you should seek the informed opinion of a personal injury attorney.

If I was injured in a DWI accident, do I need an attorney?

The use of alcohol can be considered an aggravating circumstance in a personal injury claim. If you were injured by a person under the influence of alcohol, a personal injury attorney will be able to advise you as to the actual value of your case and will be able to act on your behalf to insure that you are not taken advantage of with a low offer.

What information should I gather at the accident scene?

First and foremost you must ensure your own safety and that of those with you. Obtain the medical attention necessary to ensure the health and safety of your loved ones.

Do not discuss the facts of the incident or sign any legal documents until you have come to understand your legal rights. Do not give a statement to an insurance company until you are comfortable it is in your best interests.

You should gather as much information and supporting documentation as possible at the scene of an accident and in the days following, if possible. Try to get as many of the following items as possible:

Name and insurance company of the at fault party
Identity and contact information of all possible witnesses
If a vehicle was involved, the make, model, year, color and license plate number of other vehicle.
Photos of damage to your person and property, and other property which was damaged as a result of the at fault party.
Police report, if applicable.

What will a Personal Injury Attorney do for me?

The attorney you choose should show interest in gathering evidence with an eye toward trying the case in court. If you have an attorney who appears to be waiting around for the case to settle, your alarm bells should be ringing; a good attorney does not assume a case will settle. Being prepared for trial may ultimately be what prompts the other side to offer a fair settlement. Be wary of hiring an attorney who rarely, if ever, goes to trial.

Similarly, if you know you don't want to go to trial, you shouldn't file a lawsuit.

After an initial meeting with your attorney, he/she will begin putting your case together by interviewing witnesses and thoroughly investigating and documenting the accident. After this information-gathering phase, the attorney will begin discussions with the other party. In the case of car accidents, this is generally the other driver's insurance company, who is contractually obligated to defend them. Many attorneys organize all the evidence and medical records in a settlement brochure, which is sent to the insurance representative for consideration of the claim. The attorney might also include in the brochure a demand for a specific amount of compensation. After some back-and-forth with the insurance company, many cases settle. Many others do not and a lawsuit must be filed.

What documents should I bring with me when I meet with a lawyer?

The short answer is the more information the lawyer has, the better his advice to you will be. You should supply any documents that might have a bearing on your case. Accident reports, for example, contain eyewitness accounts and details about auto accidents. Copies of medical reports from doctors and hospitals which you have obtained will describe your injuries. Information about the other driver's or negligent party’s insurer is extremely helpful, as are any photographs you have of the accident or of your injury. If you do not have these documents in your possession, do not worry. Your lawyer will be able to obtain all necessary paperwork necessary to bring your case.

What can I expect at the first consultation?

Most importantly, you should expect to obtain a sense of confidence in the law firm you are meeting with. Your lawyer should be able to tell you if you have a case with merit. If your case is one the law firm is willing to accept, you will likely be provided with a retainer agreement. All aspects and fine print of the retainer agreement should be explained to you. Be aware, a lawyer cannot represent you without a written retainer agreement. Once that agreement is in effect, your counsel should start gathering the documents and information he or she will need to try your case. No competent lawyer should tell you what your case is worth at the first visit. In order to arrive at a figure for damages, your lawyer will need to determine the extent of your injuries, including pain and suffering, disability and disfigurement, the cost of medical treatment, and lost wages. Many times these elements of damages cannot be determined without extensive research and consultation with expert witnesses. Your lawyer, once retained, should be able to provide you with a proposed rough timeline for the pre-litigation, litigation and potential appeal phases of your particular case.

How long should I wait before contacting a lawyer?

It is imperative that you contact a lawyer as soon after an incident as you are able to do so. In almost all cases, evidence begins to be spoiled or be altered almost immediately following an incident, and it is imperative to preserve evidence to maintain your claim. Consequently, the sooner your lawyer can get started working for you the better. Remember the insurance adjuster you may be dealing with settled hundreds of cases in the past year alone. He or she is also highly trained at negotiations. It is important not to give any information to the insurance adjuster without first consulting a personal injury attorney. Also, letting your claim languish could affect its value as often witnesses and memories of the accident fade away. It is important to contact a lawyer as soon as possible about any potential claim because you should get legal advice on your time limits for filing a lawsuit or claim. The investigation of claims can be lengthy. Remember that you should not accept legal advice about your claim from anyone other than a qualified lawyer.

How is fault proven in an injury causing accident?

Ultimately, it is the responsibility of a Judge or jury to assess the fault and responsibility in an Accident. A personal injury attorney can work with you in conducting a through investigation, and gather the evidence to get to the bottom of who was at fault in an injury causing incident. For this reason, it is important that you gather as much information as possible, and preserve as much physical evidence as possible.

What theories of law apply to a personal injury case?

Generally there are three established theories of personal injury or tort liability: negligence, strict liability and intentional misconduct.

Negligence occurs when a person’s conduct falls below a legally recognized standard of taking reasonable care under the circumstances to protect others from harm. Persons who act negligently do not intend to cause an accident that injures another person. Instead, their liability develops from careless or thoughtless conduct or a failure to act when a reasonable person under the circumstances would have acted. Negligence is the basis for liability in the majority of personal injury lawsuits, including automobile accidents and medical malpractice.

Proving that someone else was negligent hinges on the following question: Was the party who allegedly caused the injury behaving as carefully as a reasonable person would have behaved under the same circumstances? If not, then that party was negligent and has committed the tort of negligence. Examples of negligence include a reckless driver causing an automobile accident, or a store owner failing to repair a defective door, thereby causing a customer to fall and be hurt. If a reasonable person would have driven more prudently, or if a reasonable store owner would have repaired the defective door, then the negligent party could be found liable by a judge or jury.

The outcome of a lawsuit in which negligence is alleged can be difficult to predict because determining how much care a reasonable person would have exercised in the same situation is difficult. The reasonable person standard is vague, imprecise and apt to be interpreted differently by different people. Often, a practice that seemed reasonable in the past may appear unreasonable with the benefit of hindsight. Finding an attorney who has experience with how juries typically interpret the reasonable person standard is, therefore, one of the most important steps in successfully defending a personal injury lawsuit in which the plaintiff alleges that the person acted unreasonably.
In the area of Strict Liability, designers and manufacturers are held strictly liable for injuries caused by their defective products. In strict liability cases, the injured person does not have to establish negligence by the manufacturer or designer. Instead, what the injured person needs to show is that the defective product was designed or manufactured in a manner that made it unreasonably dangerous or unsafe when used as intended. Strict liability is an important and growing area of tort law.

Strict liability, applies to very dangerous activities. If someone does something extremely dangerous, such as demolish a building, and someone gets hurt as a result, the injured person can sue for damages without having to prove the defendant acted negligently or with intent to cause harm. The principle behind strict liability lawsuits is that some activities are so dangerous that, in exchange for permission to engage in the activity, the individual must assume total responsibility for any resulting damage.
Intentional Misconduct claims of personal injury or tort liability must allege and prove more than just careless actions by another person. It must be alleged and proved that the offending person intended to engage in the offending conduct that he or she engaged in. From this conduct, the law infers and concludes that the offending person intended the consequences of his or her action. Further, in contrast to the negligence theory of liability for personal injury, the plaintiff (alleged victim) alleging an intentional tort does not need to show actual damages to recover. It is important to note that while perpetrators of some intentional torts--such as assault and battery, for example--can be held criminally liable for their actions, a tort or personal injury case is a civil proceeding in court brought by an individual or entity and remains totally separate from any criminal charges brought by the government.

Intentional misconduct is a deliberate action resulting in an injury to another person or damages another person's property. For example, if a manufacturer deliberately sells products it knows to be defective, it is causing harm on purpose. A plaintiff alleging intentional misconduct need not compare the defendant's actions to those of a reasonable person; he or she only must show that the defendant intended his or her actions. In a civil lawsuit in which the plaintiff alleges intentional misconduct, the plaintiff can recover punitive damages in addition to awards for injuries, pain and suffering. Punitive damages, designed to punish people or organizations for unlawful acts, are often very large sums of money. Until recently, there were few limits on the amount of money a jury could award as punitive damages. However, Congress and many state legislatures recently have passed laws putting caps on punitive damage awards in certain types of cases. Even without statutory limits, judges have long had the authority to reduce many types of punitive damage awards. Businesses wanting to avoid paying punitive damages should institute specific safety procedures for their employees to follow to reduce the risk of injury.

Should I give a recorded statement to an insurance adjuster?

You are absolutely not at any time obligated to give a recorded statement without the presence of a personal injury attorney to represent you, and if you do, it my later be used against you. It is the best practice to consult and attorney prior to giving a recorded statement so that your rights regarding your claim are not prejudiced.

What Amount of Money is “Fair Compensation” For my Personal Injury Claim?

Most people simply want fair compensation for their injuries from an auto accident. They are not trying to get rich or get something for nothing. However, what is “fair compensation?”

There is no exact formula for determining the amount of compensation you recover. A variety of factors are considered, whether by your lawyer, the Defendant and insurance companies in negotiations or by a jury in court, in determining fair and just compensation. These factors include severity of the accident, severity of injuries, impact of the injuries on the victim’s employment and day-to-day life, and extent of medical care, just to name a few. Aggravating factors such as drunk driving can both hasten settlement and affect the settlement amount.

Fair compensation certainly includes more than just reimbursement for your medical expenses. A personal injury victim may recover compensation for—

Medical expenses already incurred,
Medical expenses to be incurred in the future,
Lost wages,
Loss of earning capacity,
Physical pain,
Mental or emotional suffering,
Physical impairment,
Property damage, and
Other losses.

In some cases, the injured person’s family members may be entitled to compensation, depending on the severity of the injuries and their dependence on the injured person.

You are entitled to compensation for medical expenses even if those expenses already have been paid by a health insurance plan. The same is true for lost wages, regardless of whether you take sick days or receive worker’s compensation benefits.

This, however, is not a windfall or double recovery. First, under a principle known as “subrogation” your health insurance plan (based on the plan documents) and your company’s workers’ compensation carrier may be entitled to reimbursement from your recovery for what they pay out. Therefore, in order to be adequately compensated you need maximum recovery from insurance in the event your health insurer or workers’ comp carrier makes a subrogation claim against your recovery.

Second, if the Defendant’s insurance company reduces your injury compensation simply because you have paid for health insurance, or paid extra auto insurance premiums for “PIP” coverage (see below), or have accumulated sick days or paid vacation, the adverse insurer is taking unfair advantage of the fact that you are a responsible person and diligent worker. If you use up your sick days because of injuries from the auto accident, those days will not be available for other types of health problems. If you sacrifice to obtain extra insurance, the at-fault driver’s insurer should not get the advantage of your sacrifice.

What do I do if the other driver doesn't have insurance in an Automobile case?

If the liable party doesn't have insurance to cover their damage, but you carry uninsured motorist coverage, you will need to make a claim against your own policy. In some cases you can file a claim against the liable individual, but chances are that their assets won't cover the damage.

What are Uninsured/Underinsured Motorist Benefits?

If you were in an auto accident due to the negligence of another driver, you typically will seek compensation from the negligent driver’s insurer based on his insurance policy.

However, if the driver was uninsured, and if you have “uninsured/underinsured motorist coverage” (“UM coverage”) through your own insurance policy or the policy covering the vehicle in which you were riding, then an uninsured motorist claim will be made to your insurer.

What is Personal Injury Protection (PIP)?

Many auto policies include a form of medical and wage coverage called personal injury protection coverage, or PIP. This coverage is available to the insured driver and any passengers in the insured’s vehicle for injuries sustained, regardless of who is at fault for the accident. PIP coverage pays 100% of the medical expenses, plus 80% of lost earnings, up to the amount of the PIP coverage limits. These limits are usually in amounts of $2,500, $5,000, or $10,000. PIP benefits do not have to be repaid if the adverse driver’s insurance pays damages.

How do I file an injury claim?

The proper procedure for bringing an injury claim completely depends on the circumstances of each case. Variables such as the type of injury, nature of the at fault party, and the nature of insurance coverage can drastically effect the method by which a victim must bring a claim. Also, different types of claims are subject to distinct time limits. So it is important that you take action without delay. A personal injury attorney can advise you as to the proper method and timing to properly file a claim in your particular case.

I have a personal injury question that you have not answered.

Feel free to telephone Demerath Law at (877) 494-9949 or send an email .

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