Litigation 101: The Basics and Terminology
What constitutes a personal injury case? What does that phrase mean?
“Personal injury” is a phrase that describes the kinds of cases that deal with physical injury to the body. Some examples would include car accidents, defective products (known as “products liability”), heavy truck or 18 wheeler collisions, premises liability (injuries while visiting a business) and medical malpractice.
What do you mean by “damages” in a personal injury case?
The word “damages” refers to a monetary figure assigned to compensate a plaintiff in a personal injury case for his or her losses and injuries. Damages includes property damage, lost wages or loss of earning capacity, pain and suffering – which can be significant, medical expenses (both past and future), and mental or emotional anguish.
I’ve been told that I “assumed the risk” in my accident. What does that mean? Can I still bring a case?
Assumption of the risk is a legal concept that sometimes works to limit or preclude recovery in a personal injury case. If a plaintiff is aware that what he’s doing is an activity that carries inherent risks, and chooses to engage in that activity anyway, despite knowing the risks, in some jurisdictions that plaintiff is deemed to have “assumed the risk” of his activity, and thus may not recover as much in damages. However, in Arkansas, the concept of “comparative fault” is used to allow for the fact finder to allocate the degree of fault, instead of precluding recovery for an injury from “assumption of the risk”.
I’ve been diagnosed with a herniated disc after my accident. What does this mean?
A herniated disc is an injury to the vertebrae of the spine in which the material inside the disk is pushed out through a weakened area of the disk, due to trauma, injury, or congenital issues. Here’s an excellent resource on herniated disks from the U.S. National Library of Medicine.
I suffered personal injuries in a truck accident. Can you represent me?
Yes, our firm has handled several litigation cases that resulted from accidents involving trucks. The trucking industry is subject to a number of additional laws on the federal level, which can complicate an otherwise straightforward set of facts. If your injuries are due to an accident in which a truck was involved, make sure you choose an attorney with specific experience litigating in this context.
I was injured as a result of a doctor’s negligence. Do you handle these kinds of cases?
When a person is injured as a result of the negligence of a doctor or other medical care provider, this is known as medical malpractice. We do handle medical malpractice, and offer a free consultation and case assessment. To get started, call us at 479-494-1800.
Damages and Compensation
Will I be able to collect money to compensate me for my injuries from an accident in Arkansas? Can you figure out how much my case is worth?
Every case is different, and the only way one can tell whether you have a solid case – (a case likely to prevail at trial or in settlement negotiations) is by a consultation, where you and I can discuss the facts of your case. If you’re ready for a consultation, you can use this form to get in touch with me, or you can call my office at 479-494-1800.
(If for any reason, you do not get a prompt response to the internet form, please call us at 479-494-1800. If an attorney is not immediately available, because of depositions or proceedings in another case, one of our assistants can get started on your case right away.)
If I was injured in an accident that was someone else’s fault, how does the court calculate my damages?
Arkansas recognizes the concept of comparative fault. Although most cases will settle prior to trial on the merits, if a case goes to a jury, the jury will determine, or “allocate” the degree of fault among the various persons involved. The percentage of fault of the person claiming damages will reduce the total damage award by such percentage of fault. For example, if a jury decides you are 10 % “at fault” for an accident, and award $100,000.00 in damages, the award would be reduced to $90,000.00.
How long will it take for me to receive financial compensation in my personal injury case?
Once again, every case is different. If your medical treatment has concluded, and there is no dispute as to the reasonable and necessary medical treatment, the resolution can be very soon after the initial demand. If, however, you are still obtaining medical treatment for your injuries, or if the case is disputed; we will advance your cases with diligence, but it is difficult to predict when the case may ultimately reach a judge or jury – or a mutual settlement. In such cases, we simply advance the case towards a trial date as soon as practical under the circumstances.
How much money is my accident case worth if we settle? What about if we go to trial?
As noted above, every case is different, and even a small alteration in the facts of a case can result in a very different outcome. Many factors should be taken into consideration before deciding to accept or reject a settlement offer. Generally speaking, one would evaluate the maximum reasonable “exposure” the other side will face at trial, and that amount is then discounted based on the chance to prevail. Comparisons are made with similar facts to arrive at a fair settlement amount.
Arkansas Insurance Law
What is uninsured/underinsured motorist coverage?
These kinds of insurance coverage were developed to help injured drivers and passengers take care of medical bills and other damages where another party was at fault but where that party’s insurance coverage was lacking, either in part or in full.
Uninsured and underinsured insurance coverage are similar – in that they both are designed to compensate an individual who is injured by another person’s vehicular negligence.
Studies show that roughly 14% of drivers in the U.S. are uninsured. As a result, uninsured coverage is somewhat more common than underinsured coverage.
Sometimes referred to as “UIM” coverage, Arkansas allows for the recovery of a 12% penalty plus attorney fees in the event an insurance company wrongfully refuses to pay the appropriate UIM coverage to a policy owner.
I received an offer from the insurance company that seems too low to me. How did the insurance company come up with this figure?
This is a question we seek to have answered in UIM litigation. There must be some rational justification for the settlement amount, which must be fair and appropriate to the situation.
My medical bills were paid by my insurance. Do I still have a case against the person responsible?
Yes. Even though you may have insurance coverage which initially pays for the medical expense, you are entitled to recovery from the negligent party. When your own insurance coverage pays, it is generally known as a “collateral source” of payment, and the negligent party does not get “credit” for payments made by a “collateral source”. In fact, in most situations, the “collateral source” may attempt to assert a claim for reimbursement or “subrogation” to the recovery against the negligent party, but Arkansas law recognizes that the right of subrogation generally does not arise unless and until the injured party is “made whole”.
Litigation and Courts
Will I have to go to court and testify?
It is possible, yes. But if that happens, you will have plenty of notice from our office and the court as to when that will occur. Additionally, we will help you prepare for your day in court extensively, and we are available to answer your questions. You should be aware that cases often settle right up until the very last moment before the trial starts. Just because a trial has been scheduled, that doesn’t mean that you will definitely have to take the stand. You should never assume that you will not have to testify.
If I decide to sue the person or persons responsible for my injuries, what can I expect? Will it take up much of my time?
Litigation can take a substantial amount of time from the filing of the complaint through the jury verdict. Every case is different and it depends upon many different facts and circumstances we will be glad to discuss in person.
I’m not sure if I want to bring a case in court. Do I have to make up my mind in a certain amount of time?
Yes. A special kind of law called a statute of limitations prescribes a certain amount of time in which lawsuits regarding specific issues must be brought, or else they are forever more time-barred. In Arkansas, the statute of limitations for personal injury cases is three years from the date of injury (in some limited cases, it may run from the date the plaintiff discovers or should have discovered her injury). Medical malpractice cases have a two (2) year statute of limitations.
Should I accept a settlement or go to trial?
Deciding whether to accept a settlement or press on with litigating a case is a complex and highly personal decision. It is always up to you, as the client, to accept or reject a settlement offer. We will discuss the matter with you and make a recommendation based on the facts particular to your case.
Hiring and Working with an Attorney
Do I need a lawyer to pursue a personal injury claim in Arkansas?
Not every case requires an attorney to be involved, but when you or a loved one suffers a serious injury, we highly recommend you hire counsel. There are many issues you will need to deal with even in a relatively “simple” case. For example, what is the true value of the case? How does one negotiate the claims made by an insurance company for reimbursement out of the recovery?
Very often the insurance companies want to quickly settle your claim for the minimum amount they think the injury is worth, not taking your particular circumstances into account nor any future medical care you might need.
When seriously injured in any type of accident, it is always best to retain your own personal injury attorney. You need someone who has your interests in mind and will ensure you are compensated for every aspect of your claim, including property damage, medical costs, rental vehicle expenses, lost wages or loss of earning capacity and for the pain and suffering the injury has caused.
How do I go about choosing a competent personal injury attorney in Arkansas? What questions should I ask?
You should definitely inquire about the attorney’s experience – not merely as an Arkansas attorney (i.e., “What year were you admitted to the bar in this state?”) but also as a personal injury trial lawyer. Other questions you might want to think about posing:
- How often do you take personal injury cases like mine to trial?
- What kinds of documents will I need to provide you?
- Have you handled cases with similar fact patterns to mine before? What were the results, generally speaking? What is your success rate with similar cases?
- What are my financial obligations if we don’t win my case?
- What do you think of my case, generally? Do I have a good case? What is your plan for going forward, if I choose you to represent me?
How much will an attorney cost? How can I pay my lawyer if I’m out of work, due to my injuries?
We represent personal injury plaintiffs on what’s called a contingency fee. That means you don’t pay us any fees unless we win damages for you.
What does a “contingency fee” mean?
A “contingency fee” (sometimes called a “contingent fee”) is a particular kind of agreement between an attorney and a client whereby the attorney agrees to be compensated for his services only in the event that the client recovers money in the client’s case. The attorney’s payment is contingent upon his success in pursuing the client’s matter.
Typically, contingent fee agreements are used in personal injury litigation. If the client does not settle the case, and does not prevail at trial, then the client owes the lawyer nothing. If the attorney is able to secure compensation for the client, either through settlement or at trial, then the attorney typically takes a percentage of the client’s compensation as his fee.