Often times people are hurt in an accident and are curious about the legal process related to their potential injury claim. This page is designed to give you a general overview of some of the laws that might apply to your injury claim.
Legal Grounds For Your Injury Claim
Most injury claims are based on the tort of negligence. In order to prove negligence, the Plaintiffs must prove by a preponderance of the evidence. The Plaintiff must prove: first, that the Defendant was negligent, and second, that the Defendant's negligence was a proximate cause (or legal cause) of the Plaintiff's injury and consequent damages. Negligence is doing something that an ordinary, careful person would not do, or failure to do something that an ordinary, careful person would do in the same situation. It is, in other words, a failure to use ordinary care under the circumstances considering all the evidence in the case. Alexander, Maine Jury Instructions Manual (3rd Edition), No. 131.
Proximate (or legal) cause is “that cause which, in natural or continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the result would not have occurred.” Curtis v. Jacobson, 142 Me. 351, 54 A.2d 520.
So, a negligent act is proximately caused if (1) the actor's conduct is a substantial factor in bringing about the harm, and (2) he is not legally relieved from liability by another law. Wing v. Morse, 300 A.2d 491 (Me. 1973). This is the so-called “substantial factor” test. The negligent act must also be either the direct result or reasonably foreseeable consequence of the negligence. Merriam v. Wanger, 757 A.2d 778 (Me. 2000). So, to have proximate cause, you need to prove the following:
1. The negligent act was a substantial factor in bringing about the harm;
2. The law does not otherwise relieve the tortfeasor of liability; and
3. The negligent act was either the direct result or a reasonably foreseeable consequence of the negligence.
You can recover for your injuries, pain and suffering, emotional distress, lost wages and lost future earnings if your negligence claim succeeds. Of course, negligence claims are not the only type of injury cause of action, but they are the most common one.
Steps of a Injury Claim
Normally, we will begin the injury claim process by filing a Notice of Claim against the person who caused your injury. The Notice of Claim triggers the accrual of pre-judgment interest against the person who caused your injury pursuant to 14 M.R.S.A. §1602. This is important in the event that you sustain a legal judgment against the individual or company that harmed you.
Next, we go through the tedious process of compiling your medical bills and records. We normally will not present a demand to the insurance company until your treatment is done or there is a definitive endpoint to your treatment. We may interview your doctors if we need to clarify their records or their opinion about your injuries. Unfortunately, compiling medical records is a time-consuming process, but it must be done to present an effective demand to the insurance company.
Once your medical records are compiled and your treatment is complete, we draft a demand letter to the insurance company. We will formulate the amount of the demand with you, and will tell you what we think your case is worth. Think of the demand letter as a marketing presentation to the insurance company. We are trying to convince them to settle with you for the amount of money we believe you deserve.
Sometimes your case can settle right then and there. If that is the case, then we will get checks from the insurance company, pay off any liens on your file, and distribute checks to you and our office for our fee and costs. If we negotiate but cannot settle, then we file a lawsuit in Court.
The lawsuit starts with a Complaint, filed on your behalf. The Defendant (who is the person who injured you, not the insurance company) Answers our Complaint and the Discovery process begins. This is when the lawyers go back and forth exchanging documents, asking the other side written questions to be answered under oath (Interrogatories), and having witnesses, including yourself and sometimes your doctors, answer live questions under oath (Depositions).
Remember, making a claim is not the same thing as filing a suit. It will be up to you if you decide you want to file a lawsuit and go through this process.
After Discovery, the defense lawyers sometimes file a Motion for Summary Judgment to try to get your claim dismissed. That Motion is presented when the defense feels they are not responsible for your injuries. We will answer that Motion on your behalf. Other Motions by both sides are likely to be filed throughout the case.
If your case survives Summary Judgment, the Court will likely ask us to mediate the case. That is when the parties select a mediator, sit down, and try to get the case resolved. Sometimes mediation is worthwhile, sometimes it is not. It is always worth a try, however.
If the case still cannot be settled after mediation, then we proceed to trial. Most cases settle before they make it to trial. If your case heads to trial, we will prepare you for what lies ahead. Again, trial is nothing to fear, but is merely another way to try to get what you deserve.
Attorney's Fee Agreement
Like most injury lawyers, we charge what is called a contingency fee for our injury cases. This means that we were cover our attorneys fees if we are successful in getting a settlement or judgment in your case. Our fee agreement is usually the standard one-third of what we recover for you. You should understand that the statistics prove out that a qualified injury lawyer will usually recover between three and four times the amount that an unrepresented injury victim will recover on their own.