How Do I Win My Case

How do I Win my Case?

A case can be won by agreeing to a settlement or when a jury finds the defendant liable for plaintiff’s injuries.

Show that the Law is in your Favor

A typical personal injury case is based on “negligence” law.  In order for a defendant to be liable for negligence, the plaintiff generally has to show THREE  things:

First – the defendant had a duty to act a certain way (this is sometimes called the “standard of care”).  As you can imagine, this “duty” differs based on the person you’re suing, and the circumstances under which your injury occurred.

Duty of a physician/doctor:  A doctor has the duty to use the same degree of learning, care, and skill ordinarily used by other doctors who are in good standing and are practicing in the same field.  In order to establish exactly what the standard of care was that your doctor was required to follow, you are usually required to produce an expert witness, usually another doctor, who is familiar with what your doctor should’ve done under the circumstances.  (This law partly comes from Dalley v. Utah Valley Reg’l Med. Ctr., 791 P.2d 193, 195-96 (Utah 1990)).

Duty of a Nurse:  The duty of a nurse is to use the same degree of learning, care, and skill ordinarily used by other nurses who are in good standing and are providing similar care.  The care a nurse provides can differ based on the health of the patient they’re caring for, what the nurse’s assigned duties were, and other surrounding circumstances.

Duty of Drivers in a Car Accident:  All drivers have a duty to use reasonable care while driving their car.  This can differ based on conditions, too.  For example, reasonable care while driving in the rain is different from reasonable care while driving in good weather.

Duty Related to an Injury Caused by a Product/itemAn injury caused by a product (e.g. a faulty power tool, blender, car part, etc.) is referred to as a “Products Liability” case.  There can be many potential defendants in a Products Liability case, namely the manufacturer of the product, designer of the product, tester of the product, or inspector of the product.  Their duty is to perform their responsibilities as a reasonably careful person in their position would perform them.  (E.g. the duty of an inspector is to inspect a product as another reasonably careful inspector would under the circumstances).

Duty of Other IndividualsEvery individual has a duty to use reasonable care so as to avoid injuring other people.  Reasonable care is what a reasonably careful person would in the same circumstances that existed at the time of your injury.

For other duties and injuries, click here.

Second – the defendant didn’t act in accordance with their duty.  This is a showing that the defendant’s actions fell below the standard of care required of them.

Third – the defendant’s acts were the cause of your harm.  This is a matter of connecting the dots.  You must show that it was because of the defendant’s acts that you were injured, and if the defendant had not acted the way he did, you would not have suffered any injury.  Or, in the case of a doctor or nurse, you may argue that because the defendant failed to perform a certain act that they were required to perform, you were injured.

Show that you have Evidence Supporting your Position

You can’t win a personal injury lawsuit with “he said, she said” evidence—in other words, if you bring a lawsuit equipped with only your word against theirs, you’ll lose.  You need hard, reliable evidence *inside*.

Your evidence must be relevantThe evidence you have needs to be relevant to the law on which your lawsuit is based.  For example, if you’re suing a doctor for malpractice, evidence that the doctor has had three affairs and doesn’t pay child support isn’t relevant to whether or not he committed malpractice.

Your evidence must be admissible.  There are plenty of “rules of evidence” that attorneys use to try and keep damaging information out of the court room, and the success rate is higher than you’d think.  For example, witness testimony must not be hearsay, evidence must not be inadmissible character evidence, you can’t talk about how the defendant offered to pay your medical expenses, and there are certain procedures that must be followed before documents can be presented in court.

Your evidence must be compelling.  It’s a rare thing to find a “smoking gun” that puts the final nail in the coffin of a defendant.  More often than not, what wins lawsuits is an accumulation of pieces of reliable evidence that can be used to tell a story in your favor.  Focus on gathering lots of little pieces of the puzzle.  And remember, you don’t necessarily need all the pieces of a puzzle in order to tell what the picture is.

By Settlement

One way to win your case is to settle it out of court.  Either the plaintiff or the defendant can make a settlement offer to the other, and then the other party has to decide whether to accept it, reject it, or make a counter offer.

Most lawsuits settle, and thus never go to trial.  Preparing to settle a case is much the same as preparing to go to trial.  If you can show the defendant that the law is in your favor, and that you have evidence supporting your position, the defendant will likely see that losing the case is inevitable and will make you a settlement offer.  It’s much cheaper and far less time consuming for a defendant to settle a case they are likely to lose, rather than taking the case all the way to trial just to lose in front of a jury.