If you have even a superficial understanding of litigation, you probably know the general procedure of the legal process. A person files a lawsuit, and after necessary fact-finding and depositions – known as “discovery” – the jury typically makes a decision as to the defendant’s liability. Pretty simple right? Not quite.
In fact, there are many intermediate steps that complicate this process. Before you can even begin to wrestle with these issues, a basic, but fundamental question must be confronted: Do I even have a case?
Fortunately, the elements to this question here are pretty simple. Broadly speaking, there are two necessary conditions: (1) Did you actually suffer an injury; and (2) Is the defendant’s negligence the cause of your injuries?
The first condition is usually the easiest to determine. Typically, you won’t be seeking legal representation if you were not physically injured in some way. These cases constitute the majority of personal injury litigation. As far as psychological injuries, things begin to get murky. A court will usually dismiss a personal injury claim if the injuries suffered are purely mental, intangible injuries. R.J. v. Humana of Florida, Inc., 652 So. 2d 360, 364 (Fla. 1995). However, if physical injuries result from psychological trauma imposed by the Defendant, courts are more inclined to regard these as sufficient. Zell v. Meek, 665 So. 2d 1048, 1054 (Fla. 1995).
Negligence and Causation
The second condition concerns the Defendant’s negligence. There are four elements to a negligence claim: duty, breach, causation, and damages. Duty refers to the defendant’s responsibility toward the plaintiff. Was the defendant expected to act reasonably to prevent harm to the plaintiff? If so, the defendant likely had a duty. Breach refers to a defendant’s failure to adhere to their duty, resulting in the plaintiff’s injury. The third element, causation, is often the most contentious. An astute defense attorney is often happy to concede the first two elements, knowing full well that causation can be more difficult to prove. For this reason, it is crucial to keep a record to substantiate your claims. Written records of the injury-causing event, witness testimony and skilled advocacy can make or break your case with respect to causation. Lastly, damages refer to the compensation for the plaintiff’s injuries.
I Have a Claim. Now What?
Once you recognize you have a claim, get in contact with a person injury attorney. Defense attorneys and insurance companies are likely to offer small settlements to prevent you from bringing a lawsuit. While tempting, these offers are usually far below what you can recover in settlement or at trial with an experienced personal injury attorney.
If you or someone you love has become negligently injured, Miller Trial Law can help get you the recovery that you deserve. Please call us today at (305)-697-8312 for a free, no-risk consultation to see what your case is worth. We look forward to serving you!