Austin Texas Family Law, Eminent Domain and Personal Injury Lawyer FAQ
Austin, Texas family law, eminent domain personal and injury lawyer frequently asked questions and answers
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What is a personal injury case?
Obviously, a personal injury case means that someone has been injured. If you are in an automobile accident and the only thing injured is your car, you may have a property claim, but not a personal injury claim. Our firm does not handle cases with only property damages, but there are other attorneys that do handle these types of claims. We focus on accidents where there are serious physical injuries involved. If you are in an automobile accident and both you and your car are damaged, you may have both a property damage claim and a personal injury claim. If that is the case, usually the insurance company for you or the other party will handle the property damage portion of your claim. Even if you were injured, not everyone who has been injured has a case against someone else. In order to have a legal claim regarding an injury, it needs to be the result of either someone else's intentional act, or someone else's negligence. If someone harmed you intentionally, you usually have a claim against them for any injuries you receive. You may also be able to have them charged with a crime. On the other hand, if you are injured by someone else who did not intend to harm you, the question is a little more complicated. You have to determine whether or not the other person's action was careless. "Negligence" is the legal term used to describe this carelessness. In general, negligence means that the other person failed to act the way a reasonably careful person would have acted in the same situation. You also have to show that the other person had a duty not to act in the particular way that harmed you. You then must show that the other person breached that duty. You also must show that the action (or failure to act) of the other person actually caused your injury. Finally, you must prove what those injuries are, including past and future medical bills, past and future lost wages, pain and suffering, etc. If a person is killed by the intentional act or the negligence of another, then that person, or their surviving family members, may have a "wrongful death" claim against the other party. Even in a wrongful death claim, the case needs to be evaluated to determine if anyone was legally at fault, or "negligent", for what happened. When discussing negligence, it is important to remember that it is usually a jury that decides whether or not someone was negligent when thy injured you. Believe it or not, a jury could look at your auto accident where someone ran into the rear end of your car while you were sitting at a red light, and, for whatever reason, decide that person was not negligent under the circumstances, which means you would lose your case. Particularly in this age of "tort reform", where the insurance industry has spent vast sums of money to convince the public that most personal injury claims are bogus, juries are often very reluctant to give much, if any, compensation to injured persons. Therefore, it is important that your case be presented as strongly and persuasively as possible. You can never assume that your case is so clear cut that you will automatically win. Even an experienced personal injury lawyer cannot promise you what the outcome of your case will be if you go to trial (if any lawyer promises you a certain outcome at trial, you should get up and leave his office immediately). The point of this is that there are no "easy" personal injury cases. This is an important point to remember when evaluating, with the help of your attorney, the strengths and weaknesses of your case, the possible value of your case, and whether or not you should settle your case or take it trial.
How do I win my Texas personal injury case?
It may sound strange to you, but from the moment you were injured by someone else's carelessness, you entered a war zone. You should not be shy about asserting your right to be compensated for your injuries caused by someone else. After all, just like everyone else who purchases insurance, you paid in advance so you will be able to recover your losses if you get hurt. So, why do I refer to this situation as a "war zone"? This is war because in the last few years insurance companies and many government officials have worked very hard and spent vast sums of money in order to limit the ability of injured Texans to recover fair compensation when they are injured. This campaign has been sold under the name "Tort Reform". The tort reformers claim that their goal is to lower insurance rates for individuals and decrease the cost of doing business. In reality, it is a cynical effort to increase the bottom line of the insurance industry and to help businesses avoid liability when they injure their employees or the public. If you don't believe it, ask yourself: "Have my overall insurance rates decreased since the start of tort reform?" The answer for most people is a resounding "No!" Also, talk to any one of the thousands of people who have been mistreated by the insurance industry after an accident and see if they think tort reform has helped their situation. You should also know that the tort reform advocates succeeded in imposing "caps" that limit damage amounts that may be awarded in certain types of personal injury cases. This means that the decision of how much to compensate you when you have been injured by someone else has been taken away from juries and placed in the hands of your legislature. The Texas legislature has "capped" damages without regard to the individual circumstances of different cases. For example, if you collide with your physician on the freeway, he can sue you and recover millions, depending on his injuries. However, if that same physician maims or kills you through his negligence during surgery, you can only recover a $250,000 worth of noneconomic damages (pain and suffering) under most circumstances. If you are a child, a nonworking housewife or a retired elderly person, you usually cannot claim any lost income, so this will probably be all the compensation you can ever recover from the doctor or hospital that injured you. Does that seem fair to you? Since insurers know that now, thanks to "tort reform", it is now much harder for you to recover compensation through the courts, they have even less incentive to offer you a reasonable settlement. And, because medical malpractice cases are so expensive to prepare and you are severely limited on what amount you can recover, it also means you may not be able to find an attorney willing to take your case. Regardless of how you feel about tort reform, it is important to remember that the vast insurance industry propaganda media campaign regarding tort reform has strongly influenced potential jurors. When you walk into a courtroom in Texas, you must understand that many jurors will assume upfront that your lawsuit is frivolous (think the "McDonald's coffee case"), and that you're trying to "get rich quick". So, even if you believe that there are many "frivolous lawsuits" and that yours is one of the rare legitimate cases, you are already at a disadvantage in the mind of your jurors. Knowing this, insurance companies will usually not offer a fair settlement unless you are ready, willing and able to go to trial. Think about it. The only thing that forces an insurance company to take your claim seriously is the threat that you might file a lawsuit, take them to court and win. This also highlights why it is very dangerous to trust your case to an attorney that runs a "settlement mill", meaning they take too many cases, hope to settle all of them, and never take anything to trial. The insurers know which attorneys take cases to trial. If the insurance company knows that your attorney never takes anything to trial, they will not take your claim seriously and will not offer you anything reasonable in settlement. Also, if your case does need to go to trial, wouldn't you rather start out with an attorney that is ready, willing and able to try your case?
What must be proven to win your case?
Just because you are injured does not mean that someone else must compensate you for your injuries. Some accidents are just unfortunate events where no one was at fault. Unless someone else's carelessness, or "negligence", caused your injuries, you do not have a viable case. Even if someone else's carelessness did cause your injury, under certain circumstances you still may not be able to sue them. You must also understand that in Texas the law of "comparative negligence" controls how much, if any, you can recover from someone who causes your injury. If the jury finds that you were partially at fault for the accident, they will reduce the amount you recover by the amount you were at fault. If the jury finds you were more than half at fault for your injuries, you will recover nothing. For example, if your damages total $100,000 and if a jury awards you that amount but determines that you were 20% at fault, your $100,000 would be reduced by 20%, or $20,000, leaving you with $80,000. If the jury finds that you were 51% or more at fault in your accident, you will recover nothing. It may not seem fair, but it is the law in Texas. After we evaluate your case we will discuss with you the issue of comparative negligence to determine whether or not you have a case worth pursuing.
Do you need an attorney for your injury case?
Not every case needs an attorney. Many small injury cases can be settled directly with the insurance company. Often, it makes more sense to settle a small case without the help of an attorney because attorney's fees and other costs, including your medical bills, might leave little or no compensation for you when the case is finished. This is especially true of a "fender bender" with some minor property damage and perhaps some minor "soft tissue" physical injuries, like a sore neck or sore back that clears up in a few days. On the other hand, if your case involves serious injuries or complicated issues of liability (meaning who is at fault) it becomes more important to have an attorney working on your side, or at the least to consult with an attorney prior to talking to the opposing party or the insurance company.
What is the truth about attorney advertising?
Looking for an attorney to help you with your personal injury case can be an overwhelming experience. If you open the Yellow Pages or turn on the television you are bombarded by advertisements for attorneys claiming that they handle personal injury cases. Many of these ads say the same things, such as "no fee if no recovery", "get the money you deserve", "aggressive trial lawyer" or "insurance companies fear us". What exactly does all this mean? How do you go about telling these attorneys apart? Most importantly, how do you choose the right attorney for your case? When you see "no fee if no recovery", remember that you are almost always liable for your medical expenses, regardless of how your case turns out. If you win enough money, that money can be used towards paying off those bills. However, if you lose, or do not recover enough money, you are still responsible for paying your own medical bills. Be sure and clarify exactly how any recovery is divided as well as what bills you are responsible for (no matter how the case turns out) with any attorney you are considering hiring. When you read such phrases as "get the money you deserve", be wary of any attorney that promises you that it will be easy to get you lots of money. Any attorney who promises you this is not telling you the truth, because no one can predict exactly what will happen ahead of time in trying to it either settle your case or take it to trial. After a careful evaluation of your case, an attorney should give you their opinion of your chances of succeeding in recovering for your injury, and they might give you some idea of what the case may be worth, but they cannot honestly promise a particular outcome. Remember also that the evaluation of the case is an ongoing process. The prospects for a case may change as new facts are discovered during the investigation and preparation of your claim. An honest, experienced attorney will usually admit that they have lost cases they probably should have won and they have won cases that they probably should have lost. They will also admit that they do not know exactly why this happened other than the fact that lawsuits involve people, and people are unpredictable. This also hints at the value of settling a case, where appropriate, to avoid the uncertainty of the outcome at trial. If the attorney advertisement states that he is an "aggressive trial lawyer", find out exactly what this means. Does the attorney actually take cases to trial, or does he settle most of them, or refer them out to other attorneys when cases need to go to trial? Also, what does "aggressive" mean? Every attorney should zealously represent their client, but if they are obnoxious to the opposing attorney or the opposing insurance company, or for that matter, the judge or jury, they may do more damage to your case than someone who treats everyone involved with courtesy and respect. Being effective is not the same as being rude. Remember, some jurors already have in their minds a stereotype of a personal injury trial lawyer as a greedy, obnoxious, dishonest opportunist. If your attorney's demeanor reinforces this stereotype, you may have a problem. If the jury does not like your attorney or does not believe your attorney, they will usually find a way to make you lose. If an attorney claims that "insurance companies fear us", be careful. The reputation of your attorney is important in that insurance companies respect attorneys that thoroughly prepare and are willing to take cases to trial. However, remember that insurance companies also have excellent attorneys, and these insurers deal with claims like yours all the time. Thanks to the successful insurance industry public relations media campaign that has convinced many potential jurors that all personal injury plaintiffs are out to "get rich quick" with a frivolous lawsuit, insurers are often willing to "roll the dice" by taking a case to trial, regardless of who the attorney for the plaintiff is. Therefore, it is important to have an attorney that is willing and able to take your case to trial when necessary. It is important to remember a few other things when looking at attorney advertising. First, remember that anyone can buy an ad. A large, expensive ad in the Yellow Pages or on television does not necessarily mean that the attorney is the right one for you, or even a very good attorney. The attorney may be competent, but it is important that you check out their credentials and talk with them about how they will approach your case before you decide to hire them. Also, make sure that they are they are not running their practice as an advertising "mill" that takes way too many cases, hoping to settle them all, and then, if cases need to go to trial, farms them out to other attorneys. You should know up front what attorney will be handling your case all the way through, and that your attorney is willing and able to try the case if necessary. Finally, make sure the attorney's personality matches yours, since you are going to be working together for a while. To be successful in resolving your claim it is important for you and your attorney to work as a team.
What steps should you take in finding the right attorney for your case?
1. Ask an attorney you know to give you a referral to someone who handles personal injury cases. 2. Ask an acquaintance who has used a personal injury attorney and is happy with the results to give you a referral. 3. Contact your local bar association and see if they have a lawyer referral service. However, remember that lawyers listed in such a service have signed up and paid a fee to be listed, and their names come up on a rotating list. Being on that list does not guarantee that they are a good attorney for your case any more than does an advertisement in the Yellow Pages. However, this may be a good way to get several names to start the interview process. 4. You may look through the Yellow Pages for attorneys that advertise for personal injury cases, but be careful. Remember that not everyone advertises in the Yellow Pages. For example, we receive most of our cases as referrals from other attorneys and satisfied clients. Also, watch out for ads that list too many different specialties, since no one does everything well. Ask them why, if they are so good at personal injury work, they need all those other practice areas to survive. Beware of personal injury attorneys with full-page (or multiple page) ads. These ads are very expensive and attract many of the smaller personal injury cases that our firm does not accept. If the firm advertising with a full page accepts lots of cases, be sure that they will have time to do a good job on your case. Also ask them why, if they are good at what they do, they need such a huge ad in order to get clients. 5. Interview several attorneys. Ask each attorney for the names of other attorneys who handle these types of cases. The names that come up again and again when you ask this question should constitute a good list for you to begin your search for the right attorney for your case. If you ask this question and the attorney does not give you any other attorney names, get up and leave. Any attorney who handles personal injury work on a regular basis will know of many other good attorneys who do the same work. If the attorney will not give you any other attorney names, either he does not practice in the area enough to know who else handles the same type of cases, or they are desperate to sign you up and are afraid of having you speak to other attorneys. An attorney who is desperate for cases may pressure you to accept settlement that is less than the case is worth, or may sign up too many cases to be able to do a good job on any of them. Either way, you should not use that attorney for your case. 6. Before you talk to the attorney, ask if they have a booklet of information like this one or a web site that you can go to for more information about their methods for handling cases and their experience and qualifications. 7. You should be wary of any attorney that pressures you to sign a contract quickly. As mentioned before, not every case requires an attorney. Remember that attorneys that sign up too many cases may not have the time and resources to properly prepare your case. Also, you should be given time to review the contract at home in a relaxed setting (or even to interview several attorneys) before you make the decision to hire an attorney. 8. Beware any attorney who contacts you, trying to get you to hire him for your particular claim. At our firm, we only send this Texas Personal Injury Guide to those who first contact us and request it. Texas has strict rules regarding attorneys, or anyone working on behalf of an attorney, who solicit clients after an accident either by telephone, in person (on the street, in the hospital, etc.) or in writing. You should beware of attorneys who engage in such obnoxious practices. 9. Be wary of any attorney who wants to send you to a particular doctor or set of doctors. When it later comes out, as it always does, that you found your doctor through your attorney, it can severely damage your case. 10. Before hiring an attorney, make sure you understand how you will be kept informed of your case's progress. In our office, we usually send a copy of every piece of correspondence or pleading to the client. We also explain the estimated timeframe for the case and are happy to answer questions via telephone and e-mail. If appropriate, we can set up a telephone conference time that is convenient for both you and our office. You may also set an appointment to come in and discuss your case at a time that is convenient for you. Ask any attorney you are considering hiring how they will insure that you are kept informed regarding your case. 11. Be sure and find out who will actually work on your case. Some things can be handled by legal assistants. However, if you are hiring an attorney because you like and trust them and believe in their skills, you want to make sure that attorney is the one who is actually going to negotiate with the insurance company and, if necessary, try your case. 12. This may sound silly, but be sure that the attorney you hire is licensed to practice law in Texas. Believe it or not, some attorneys that advertise in Texas for personal injury cases are not licensed to practice law in Texas. This means that they cannot personally take the case to trial in Texas without hiring local counsel or getting special permission from the court. Insurance companies know this information and may take your out-of-state attorney less seriously as a result.
How do we handle personal injury cases at the Todd Law Firm?
While every case is different, and not all cases require each of the steps outlined below, this is a list of what we normally do at our firm when preparing your personal injury claim, and, if necessary, trying the case. Initial client interview: evaluate the client's claim, educate client regarding the legal process for personal injury cases, determine any deadlines that apply. Contact the opposing party's insurance company, giving them notice of the claim. Gather all evidence, including police accident reports, medical records, other bills and necessary affidavits, photographs, drawings, etc. Interview witnesses. Analyze the legal issues related to the case, including comparative negligence and any damage limits that may apply. Review the medical records and discuss the injuries and prognosis with the client's physicians. Ascertain by reviewing the client's insurance policies and through discussion with the insurance company whether there are any valid liens that must be repaid by the client. Decide whether settlement negotiations should be pursued or if suit should be filed in the case. If a lawsuit is filed, prepare the witnesses, the client and the health-care providers for depositions and possible trial testimony. Prepare and respond to "discovery" - written questions and requests for documentation that can be served by either party on the other. Set the case for trial. Prepare exhibits to be used at trial. Prepare for and go to mediation or arbitration, where appropriate. Prepare and file any necessary briefs and motions with the court. Try the case before a judge or jury Review the verdict to see if either party has grounds for appeal. Advise the client as to whether or not they should appeal the case (note that our contract with you does not obligate us to appeal your case).
What about trying to settle the case without filing a lawsuit?
Sometimes a case can be settled without filing a lawsuit. Remember, however, that all personal injury lawsuits and Texas are governed by a "statute of limitations". This means that if you do not file a lawsuit on your injury claim within a certain period of time, you can never file suit on that claim. It is extremely dangerous to wait until you get close to the end of your statute of limitations in order to file a lawsuit, because you lose valuable preparation time and the opportunity to discover if there are any problems with your case or other parties that should be included in the suit before time runs out. There are attorneys that routinely wait until the last minute to see if the insurance company will settle the case. If that does not happen, these attorneys panic and race to find someone to file suit on the case. We do not accept these types of last-minute cases. We do not want to be in charge of fixing the problem caused by another attorney's inaction. If we accept your case it is because we believe that you have a valid claim and that it is usually worth taking to trial if it cannot be settled for a reasonable amount. In many cases we will file suit before we begin settlement negotiations. That way, if negotiations fail, we are prepared to take the case to trial.
What happens after the lawsuit is filed?
After a lawsuit is filed, both sides usually send each other "discovery" requests. These are written questions about the accident, the injuries, the medical treatment, prior medical history, etc., and requests for documentation related to all of the above. Each side is allowed to discover what the other side will say at trial and their legal theories of the case. The opposing attorney will be permitted to see your medical history, your work history and your financial history. You may have to submit to a medical examination with a doctor chosen by the defendant. You may also have to give sworn testimony at a deposition. We are allowed to find out all of the above information about the opposing party as well.
Why should you hire us?
As stated earlier, unlike many personal injury firms, we do not accept and try to manage hundreds of cases of the time. We carefully select a few cases and then work hard to maximize their value. Many attorneys who advertise for personal injury work have so many cases that none of the cases receive their personal attention. And some attorneys never take cases to trial. If the case cannot be settled with the insurance company, these attorneys try to refer the case out to be tried by someone else. It is important that you ask the questions listed above and understand your attorney's approach to your case before you make the decision to hire them. We decline many cases each year in order to devote our time and efforts to a select few good cases. By accepting only a few carefully chosen cases, we are able to give these cases our personal attention. If we do not accept your case, we will be glad to provide you information and refer you to another attorney who may be able to help you.