Wednesday, November 7, 2012

Winning your PI case at Trial

               Trial of a personal injury case, like the trial of any other type of case that proceeds through the judicial system, is governed by laws developed over hundreds of years.  Accident victims can only recover a money judgment upon proper proof at trial.

                The accident victim must prove that the other driver was negligent and that the other driver’s negligence caused the accident victim’s particular injuries.  A plaintiff cannot recover for injuries existing prior to the accident, but can recover for an exacerbation of pre-existing injuries.  If the other driver (the defendant) can demonstrate that the injury was not the result of the accident, but rather from some other cause, then the plaintiff cannot recover for that injury.

               The personal injury plaintiff must prove the case by a preponderance of the evidence.  This means that the plaintiff must prove that it is more likely than not (1) that the defendant breached some duty of the road, such as ignoring a stop sign or failing to pay full time and attention; (2) that the defendant’s breach of such duty caused the plaintiff’s damages; and (3) that the plaintiff’s injuries are related exclusively to the accident or were exacerbated by the accident.

A major concern for accidents that happen in Virginia is that Virginia is a “contributory negligence” state, which means that the plaintiff must be entirely free of fault for the accident.  If the Plaintiff contributed to the accident in any way, then the Plaintiff is barred from recovery.  This does not mean that the Plaintiff needs to be free of any violation of traffic laws, only that the Plaintiff be free of negligence that causes the accident.  By way of example, consider a Plaintiff that is texting at a red light when she is rear ended by a Defendant.  Texting in Virginia while driving (even if stopped at a light) is against the law. However, the Plaintiff in this case may still recover because the Plaintiff’s texting did not cause the Defendant to rear-end the Plaintiff’s vehicle.  Rather, the cause of the rear-ender was the Defendant’s failure to keep a proper lookout and failure to brake in a timely manner.  However, one should note that even a subtle change in the facts could bar Plaintiff’s recovery.  If the Plaintiff failed to accelerate when the light turned green because she was texting and did not notice the light change, then the Plaintiff may be prevented from recovery. 

               The most important issue in the vast majority of personal injury cases are the issues of damages and causation.  Most of the time, the Defendant will concede negligence.  In a great number of cases, the Defendant will concede that the Plaintiff was not contributorily negligent.  However, the Defendant will vehemently suggest that the Plaintiff’s injuries are inflated, nonexistent or not a result of the accident.  Since the injuries in an automobile accident case results in medical expenses, it is imperative that anyone considering a personal injury case ensure that the medical documentation regarding treatment correctly and accurately reflect that nature and cause of injury.  Medical documentation that suggests, even off-handedly, that a concussion, for example, was caused by a fall rather than the automobile accident at issue can present a large hurdle to overcome at trial.  Additionally, in the event that the injured party loses time at work, an employer that fails to document that the reason for missing work resulted from injuries sustained in the accident can reduce the likelihood of recovering lost wages. 

               In order to be successful at trial, it is imperative that the potential personal injury plaintiff prepare proof that the other driver’s negligence caused the accident, and secure documentation of damages (medical, employment, etc.) resulting from the accident.  This evidence, combined with a skilled trial lawyer should result in a personal injury verdict that is full and fair compensation for any victim of an automobile accident.

If you are injured in an accident, consider using an experienced law firm, such as Gross & Romanick, P.C.  Call us at 703-273-1400 or send us an e-mail to law@gross.com.  Visit our website at www.gross.com and download our Personal Injury App to your smartphone or iPad.