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understanding your personal injury and damages can help prove your claim


Once you have been through all of the detailed preparations for a jury trial, you might see why most people prefer not to go to court. People want their disputes solved quickly and fairly. While a trial may be fair, it is rarely quick. Trials require months of preparation, even if the trial itself may take only a few days once you enter the courtroom.


The good news is that manycases handled by experienced personal injury lawyers are settled long before litigation would have started. And in most cases where a lawsuit is filed, the parties still settle before going to the courtroom. It is the collective experience of the attorneys collaborating on this site that 90 percent or more of personal injury cases handled by an experienced personal injury attorney settle before trial.


The job of the personal injury attorney is to get the fullest possible information in the appropriate method of organization for that case to decision-makers on the other side of the case, as early as it can reasonably be shared.

Presenting your case before trial lets the defendants know you have a strong case and is aimed at convincing them that settlement may be a better option for both sides. Remember, only you can decide to settle your case. If the other side does not make a fair offer, a jury will be able to decide the dispute.

An experienced Idaho personal injury attorney will prepare your case — from the moment you hire him — as if it yours is the case that will ultimately go to court.

This is not just in case you do go to trial — it is also because full preparation allows you and your personal injury attorney to make the most compelling case possible in settlement talks. The facts will be gathered. The witnesses will be found. The evidence will be assimilated. The issues will be understood. The law will be applied to the facts. Demands for settlement will be presented. Through the settlement discussions, an experienced personal injury lawyer will learn all about the strengths and weaknesses of your claim. If the claim can be settled fairly, so much the better for you. If not, you will enter your trial fully prepared for the rigors of litigation.


Sometimes, You Just Have to Go to Trial

Sometimes, a trial is necessary in order to reach a fair settlement.Idaho personal injury attorneys are experienced trial lawyers with demonstrated results both in court and out of getting settlement results for their clients. That was the case for one 79-year-old man who was badly hurt during an otherwise nice walk at the mall. A kiddie ride had been set up in an open area of the mall, with a ramp leading up to the ride. That ramp was in the walkway and was nearly the same color as the floor. Before the man walked through that area, the owners of a nearby store had reported to the mall security that they had seen numerous mall shoppers trip and/or fall over the ramp. Despite this warning, the ride operators took no safety precautions. When the elderly man later walked through that area, he tripped and fell. He hit the ground hard and unprotected. His medical bills exceeded $80,000 for injuries resulting from the unnecessary fall.


To the man's lawyers, it appeared to be a clear case of negligence — but the defendant (and its insurer) denied liability. They offered this elderly man no settlement at all. His law firm filed suit and prepared the case for trial. Still, the defendant offered no money at all. After a two-day trial, the jury found that the defendant failed to take reasonable steps to prevent exactly the type of injury this man incurred and returned with a verdict of nearly $170,000.00.


The Complaint and Answer

Every lawsuit starts with a written complaint/petition filed in court by the lawyer for the plaintiff. The plaintiff's complaint lays out all of the relevant facts, then lists each cause of action (reason for suing). At the end of the complaint, the injured party will sum up his or her request for relief in a "prayer." This is a request for damages — financial compensation for your physical, emotional, financial and other injuries.


The people being sued are called defendants. After your lawyer files the complaint and has a copy served to the defendants, they must file a written document of their own, called the answer. The answer either admits or denies all of the points raised in the complaint. Because the answer includes reasons for these admissions and denials, it is often your first look at arguments the defendant is likely to make at trial. Together, the complaint and the answer frame the issues the lawsuit will ultimately be about.


Litigation Is a Means — Not an End

In many cases, litigation is a tool for solving problems, not an end in itself. Take the case of the Robinsons, who were involved in a car accident. As they made a right turn, they were sideswiped by a driver on the intersecting street, who was traveling the other direction. In the accident report, a police officer wrote that the collision occurred in the center of the road. The Robinsons said the other driver had crossed the center line, so the collision was his fault. The other driver said Mrs. Robinson steered wide around the corner, so the collision was her fault. The insurance adjuster refused to make any settlement offer.


The Robinsons did not want to litigate. They wanted a fair and fast settlement. But in this scenario, there was no choice but to start litigation so that the drivers could be deposed. (That is, give out-of-court spoken testimony — see the "Discovery" discussion for more about this) In this case, the couple was able to settle after depositions showed their story was backed by the evidence. Mr. and Mrs. Robinson would have received no compensation if they had not filed a lawsuit. In their case, as in many other cases, litigation was a tool for solving problems, not an end in itself.



As soon as the case is filed, either side is free to file a motion, which is a request that the court enter an order or decide a point of law. For example, a defendant may move to dismiss, asking the court to rule that the complaint was filed too late (for example, if the complaint was not filed until after the statute of limitations expired). In considering a defendant's motion to dismiss, the court must assume that allegations in the complaint are true, so that any challenge at this stage is made strictly as a "matter of law" — what the law of your state says about a specific situation. Another example is a motion for summary judgment, which asks the court to rule in the requester's favor because essential facts are no longer in dispute (perhaps because of what has been learned in discovery), making a jury's decision unnecessary on some — or all — points.


Either side can also present motions orally, while in the courtroom. Like pre-trial motions, these oral motions ask the court to decide a matter of law. For example, defendants sometimes move for judgment as a matter of law (called a motion for a directed verdict in Idaho), after the plaintiff has finished presenting evidence. This motion asks the court to dismiss the case without requiring the defendant to present any evidence, asserting that the plaintiff failed to show that a question of material fact is in dispute. Such a motion can address some or all of the many legal issues involved in trying a personal injury claim.


Jury and Bench Trials

When your lawyer files your complaint, he or she will most likely request a jury trial. In a jury trial, a group of randomly selected citizens from your area serve as the "judge of the facts." A jury considers all the evidence presented through witnesses and collectively decides who to believe and what to believe, deciding all questions of disputed fact.


After all evidence is presented, the jury will use directions from the judge (called jury instructions) to decide the three most important questions in any civil trial: fault, causation and damages. Questions of fault ask the jury to decide how much fault each party bears for the injuries. Questions of causation ask the jury to decide whose fault caused what injury. At the end, the jury assigns a dollar value to each injury it believes was caused by the defendants' actions. The jury does all of this according to the judge's instructions and a verdict form provided by the judge.


The judge presiding over a trial is "the judge of the law." His or her job is to preside over all the courtroom proceedings, keeping the trial on track (according to procedural rules) and decide any questions of law. Questions of law can be about either matters of procedure (such as whether a line of questioning is appropriate) or matters of substance (such as whether the defendant may present a certain technical legal defense).


The judge also instructs the jury on how the law affects the facts they are deciding, through the use of jury instructions. For example, if you claim the defendant was negligent, the judge will provide the jury a written a definition of negligence. This definition will be one that has been decided in prior appellate court decisions, or by the state legislature.


There is another type of trial, called a bench trial, in which a judge decides the issues without a jury. If your lawyer thinks you should consider a bench trial, he or she will discuss it with you in advance. As with all aspects of your case, you will make the final decision, using your lawyer's advice.


Burden of Proof

As the party seeking financial damages, the plaintiff has the burden of proof, which means you and your lawyer must provide the evidence to prove that your allegations are true. Many people are familiar with the requirement to prove a case "beyond a reasonable doubt," which is the standard used in a criminal trial. The standard is lower in a personal injury case, because you are seeking a payment, not to put someone in prison. Plaintiffs in personal injury trials must prove their cases "by a preponderance of the evidence," which means the facts you are alleging are more likely than not.


Presenting and Defending the Case

Because you, as the plaintiff, have the burden of proof, your lawyer will present your case first during trial. After your lawyer has presented all of the evidence in support of your complaint, he or she will "rest." Then the defendants will present the evidence in support of their answer.


After each witness testifies for the side that called him or her, the other side has the right to ask questions. This is called cross-examination. A famous legal quotation describes cross-examination as "the greatest legal engine ever invented for the discovery of truth." A good lawyer uses this tool effectively, either to show the strength of the client's case or to show weaknesses in the other side's case. While cross-examination is frequently portrayed by television shows and movies as hostile, it usually works better when it is not hostile.


The Jury Verdict

After all the evidence has been submitted and both sides have rested, the judge will explain the applicable laws to the jury by reading the jury instructions. The jury will then be asked to go to jury room to discuss the evidence in secret. Out of the presence of the judge, the lawyers and the parties, the jury will decide which facts presented are true, apply those facts to the law specified in the jury instructions and attempt to reach an agreement. In order to reach a verdict, the required number of jurors must agree on each point to be decided.


The number of jurors who must agree in order to reach a verdict is different in different jurisdictions. A unanimous verdict is required in federal court, but in Idaho courts a verdict must be agreed to by 3/4ths of the jurors. If the jury cannot reach a verdict, the court will declare a mistrial, which is sometimes called a "hung jury." When a trial ends with a hung jury, the case has to be retried before a new jury, starting from the beginning. When 3/4ths of the jury agrees on the liability of the defendant and on the amount of your damages, the jury issues it's verdict which the judge presents in court.


Judgment and Collection

If the judge believes the jury's verdict was proper, the judge will file a document called the judgment of the court. A verdict in the favor of the injured party is called a plaintiff's judgment. A plaintiff's judgment is a legal document stating that the plaintiff is entitled to collect the payment the jury decided was fair. It shows that the defendant got the due process he or she was entitled to receive and that the defendant is legally being asked to give up property to pay the money awarded by the jury.


Usually there are motions filed by one or both parties called "post-trial motions" that give the trial judge one last chance to rule on the issues of law in the case.


If the defendant has an insurance policy that covers the judgment, that insurer will usually pay it without intervention from the court. However, if the defendant or his or her insurance company does not pay voluntarily, you may need to ask the court to force the defendant to comply. This process is called post-judgment collection procedures, and includes requests for documents such as a "writ of execution" or a "writ of garnishment." The purpose of these post-judgment remedies is to seize assets belonging to the defendant so those assets can be sold and the money applied to satisfy the judgment.


If a defendant does not have insurance and does not have assets sufficient to satisfy a judgment, the defendant can file a petition asking that the judgment be discharged. This is done in a bankruptcy court. This is a complicated area of the law and beyond the scope of this book. As a part of the decision to take your personal injury claim through the litigation process, an experienced personal injury lawyer will consider whether a defendant has the ability to pay. This discussion will occur at the beginning of your case. The ability to get paid is always a matter of utmost concern.


The role of an experienced personal injury attorney is to figure out the end of a case at the beginning, and to work throughout the case to maximize the client's recovery. That work always includes considering whether you will get paid if a verdict is obtained.



If either side believes there was a mistake at trial, it can file an appeal. An appeal is a request to another court, called an appeals court, to reconsider the first court's ruling(s). Most people do not realize that an appeal can only be made on the basis of an error in the law. A jury's decision, as "the judge of the facts," cannot be overturned on appeal unless the jury's decision was somehow the result of an error of law. Appellate courts decide matters of law.


There is no jury in the appeal process. The appellate court judges are required to presume the jury's decisions at trial were correct — as long as the record on appeal contains evidence to support the jury's verdict. A jury's decision can be changed by the appellate court only where there are no facts in the record to support the jury's decision or when the judge who presided over the jury trial allowed the jury to consider facts that should not have been considered, or to incorrectly apply law that was given to the jury. Appellate court decisions are important because they form what is called the common law. The common law is the law of your state, unless a decision of the judicial branch of government is precluded or overturned by a decision of the legislative branch of government.


When the defendant files an appeal, he or she can post a financial bond to stop collection of the judgment. If the appeal fails, that bond will be used to pay the judgment. If you win your case, but the other side appeals, you may have to wait some time before you can collect the compensation you won.


Your lawyer will need to explain this complicated process to you and will counsel you about whether to settle on appeal, given the increased costs, fees and time associated with the complicated appeals process. All of these decisions will turn on the specific facts and law applicable to your case. An experienced personal injury lawyer will explain all of your options and help you make the right decision for you and your family.


It Is the Client's Case

We find that some potential clients are afraid that a lawyer will make important decisions about their cases, such as what settlement amount is fair or whether to file a lawsuit. This is not true. A personal injury claim belongs, at all times, to the client. The lawyer is hired to gather the facts and the law, and to show the client how the law will likely be applied and how the facts will likely be interpreted. As the owner of the claim, the client has the right to make the final decisions about things like whether to settle.


Experienced personal injury attorneys know litigation is a means to an end, not an end in itself.

The end is justice for the injured client — full financial compensation for his or her injuries and the satisfaction of holding bad guys responsible for their actions. Litigation is simply the means that must be applied when there is a no voluntary settlement along the way.

An experienced personal injury lawyer will begin with the end in mind — preparing the claim from the outset in such a way that both the lawyer and the client are ready for litigation and trial — if necessary.