Recovering Damages for a Personal Injury or Wrongful Death

11/29/2017 11:38 am ET Updated Dec 02, 2017

Accidents happen every day. Sometimes we’re not paying enough attention, and sometimes we’re careless, but sometimes accidents are due to the negligence of others. Perhaps you’re in a car accident caused by another driver, or perhaps you fall on an unmaintained surface or get hit by something that was secured improperly. Now, through no fault of your own, you’re injured, in a lot of pain, and anticipating the medical bills that will soon be hitting your mailbox, not to mention the time you’ll have to stay home from work.

Who’s responsible for your pain and suffering? If it’s clearly another party, then you may want to seek damages, or compensation for your injuries.

Claim or a Lawsuit?

If you believe your injuries are the result of someone else’s carelessness, then the first thing you’ll want to do is file a claim with the insurance provider. For a car accident, it’s often the other driver’s auto insurance first and any applicable policy you own second; for an accident on someone else’s property, it’s usually the property owner’s insurance. The provider will get back to you with a settlement: a specific amount they’ll pay you to cover your expenses and your pain or they may reject our counter your cliam. If you accept the check and cash it, then the claim is closed, and you are no longer able to file a lawsuit.

If, however, you don’t believe that the settlement offered to you by the insurance provider is sufficient or one is not provided, then you will want to look into filing a personal injury lawsuit to recover from your damages.

Starting a Lawsuit

If you do plan to file a lawsuit, the first thing you’ll want to do is make sure you’re acting quickly enough to preserve any potential statute of limitations, which will likely prohibit recovery if a specified period of time passes.

If you’re not getting what you want from settlement offers, though, you’ll need to find a lawyer who has a proven track record of winning cases like yours. This lawyer should review your situation for free to see if you have a case, and he or she should work on contingency; in other words, they don’t get paid unless you get paid. The good old metaphorical “put your money where your mouth is” scenario.

If the lawyer determines that the other party’s negligence caused your injury, that your medical treatment or loss of a loved one will cost you a substantial amount, that you will be missing work or other things you normally do in your everyday life, and you have ongoing pain and suffering, then you’ll likely have a case. Your lawyer will file it in the appropriate court.

Collecting the Evidence

The next thing you’ll need to do is gather evidence. This involves writing down a complete and detailed account of what happened as soon as you can, while the incident is still fresh in your mind. You’ll also need physical evidence, which means taking photos of your injuries and providing any additional information, documents, materials, or more that may be relevant to your case.

"It’s wise to do this right after you’re injured, at its worst point, and then at every stage of your healing process," says Kalfayan Merjanian Law Firm.

"Write down the time, date, and length of your ER visit if you had one, track your doctor appointments and time spent on the phone with health professionals, and log any lost pay and anything else you were unable to do as a result of your injury."

Photos of the scene of the injury are also helpful; for example, if you fell on a broken step and injured yourself, take a picture of that broken step. Finally, make sure that you have a time and date stamp on all photos. If you’re shooting with a smartphone or digital camera, that information will be in the photo’s metadata, though if you can turn on the time and date stamp so that it appears on the photo itself, do so.

Witnesses are also a crucial part of any personal injury case. If you haven’t already, get the contact information of witnesses who can corroborate your story.

Next Steps

Once a suit is filed, written discovery and a deposition are likely next. This is an out-of-court sit-down meeting with your lawyer, the defendant's lawyer, and all involved parties to go over what happened and answer relevant questions. You’ll have to talk about the incident, and you’ll probably have to offer details about your personal and your medical history or the loss of a loved one.

Often during a deposition, you’ll be offered another settlement, or you may be asked to take your case to arbitration or mediation. Look over offers like these carefully with your lawyer: the settlement amount will probably be lower than what you might get in court, but offers a greater level of certainty on the outcome of your case. Also, accepting the settlement will save you the hassle and emotional strain of going to court while still giving you something for your pain and suffering, and arbitration will speed the process along and cost you a lot less. For this reason, many plaintiffs in personal injury cases accept a settlement or agree to move to arbitration. If, however, arbitration or a settlement does not work out, then your case will move to court.

No matter the type of personal injury, auto accident, or wrongful death case you may be dealing with, take care to take the necessary steps and get the legal representation you deserve to maximize your chances of recovering.

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