No one reads articles like this just for fun–not even lawyers. So, I assume you found this because you have been injured in an auto accident and are trying to learn what to do. The average Arizona driver is in a collision every nine years. I’m sorry it happened to you, but you can also assume it will be a while until your next (hopefully never). So, the law involved in an auto injury claim is something you may need to know about . . . but not too much. Why spend the energy to become an expert in something you hope never to use again? But it is wise to understand what you are facing. No one article will answer all your questions (I’ve written over 40 articles and still find new questions to answer). But, this article is a good start. It should help you understand the basic law influencing your claim, and give you a more realistic view of the obstacles you are likely to face. You will also understand why making an injury claim is not hard to understand in concept, but is usually frustratingly difficult in application.
I am going to attempt to summarize the law controlling auto accident injury claims–into one paragraph:
If a driver does something a reasonably safe driver should not do, and what that driver did causes harm to someone (like, in a collision), the driver is responsible to pay an amount of money to the injured person to fix, or make up for, the harm caused.
There. One paragraph. The problem is that applying this simple statement in the real world is surprisingly difficult. To do so often involves the at-fault driver, insurance companies, and their lawyers, injured claimants, and their lawyers, all functioning within the structure of the court system. Every such claim, whether it feels like it or not, is “adversarial,” in that you and the insurance company have fundamentally opposite goals: Yours is to prove all the harms and losses associated with the other driver’s wrongdoing; The insurance company’s is to challenge those claims. After all, if you cannot prove some or all of those negative consequences, the insurance company does not have to compensate you for those, and pays less money. So, you and that company are not on the same side, and their duties are to their insured and the company, not to you (I am not saying they are evil, or even wrong, to take this approach–you just need to know where you stand). So, again, it is easier to understand the steps than to successfully “take” them–partly because someone is on the other side challenging those steps.
When A Driver Is Responsible for Harm to Another Person
Let’s break the general statement down further, starting with the principle that a driver must act in a reasonably safe manner for the safety of others, and be held financially responsible if they don’t. How does this expectation apply in real life? In auto injury claims, this part is, in fact, usually not complicated: For example, if John is driving and hits Mary’s car from behind, it was likely because he was adjusting the drink in his cup holder, or driving too close to Mary, or driving too fast, or looking out the side window at a store, or whatever other reason he wasn’t looking at Mary’s car in front of him. A reasonably safe driver keeps his eyes on the road ahead of him; not any of those other things. And John, by not looking ahead, did something a “reasonably safe driver” would not do. So, John violated the standard, and should be held accountable for any harm caused by his failure. For another example, what if John ran a red light? Well, a reasonably safe driver stops at a red light, and John didn’t, so he will be held responsible for any harm the “unreasonable” act of not stopping caused Mary. It usually doesn’t take a police officer or a lawyer to figure out who caused a collision by driving in an unsafe manner–you know it when you see it. We often refer to the unreasonable driver as being “negligent”–although, strictly speaking, John is not legally negligent unless his wrongdoing actually causes Mary harm. Of course, whether Mary was harmed, to what degree, and how much compensation John should pay her, are the areas where, even in auto claims, things get messy.
The Kinds of Harms and Losses (Damages) That Count
If it is easy to determine who the unreasonable driver was (whose bad driving caused the collision), then the claim should be easy, right? In many of my first meetings with potential clients they express that idea, by saying something like: “This case should be easy, because it is clear the other driver caused the accident and their insurance company has accepted it was their insured’s fault.” I have often responded to that assumption by asking why they don’t just call the insurance company, ask for the money, and be done with it. Of course, it is because they assume the insurance company will not, in fact, be willing to pay them what it should. Maybe–and getting that to happen is not easy. In fact, it can be super hard. That is the role of proving not just who caused the collision, but what the proper compensation should be.
The principle goals in proving the proper compensation for Mary’s injury claim can be put in two broad categories: 1) Identifying and proving the negative consequence (harms and losses) Mary experienced because of John’s unreasonable driving act, and; 2) Getting a settlement or verdict for Mary in a monetary amount that reflects what it takes to fix, or make up for, those negative consequences. What if John’s collision with Mary caused NO harm to Mary? Then, John owes Mary NO compensation, even though he caused the collision. So, before Mary can ask John to pay money for what his bad driving did to her, she has to prove what those negative effects were.
These are some of the kinds of harms and losses Mary is likely to need to prove: 1) She was injured; 2) What her injuries were; 3) Those injuries were from the collision, and not from something else; 4) She needed medical treatment for the injuries; 5) The treatment she received was necessary for the injuries: 6) The quantity of treatment was appropriate for the injuries; 7) The medical charges related to that treatment are reasonable (not overcharged); 8) Any lost income; 9) The “human” losses in quality of life from pain, restricted activities, visible injuries, compromised relationships, etc.; 10) Any claim for ongoing or permanent problems; 11) The length of time of ANY claimed problem.
As long as that list is, it is incomplete. And each of these broad categories have many sub-categories of the kind of “proof” often used. These categories show why making a successful injury claim is tough business. You’re getting the picture–easy to list, hard to do.
What It Means to “Prove” An Auto Injury Claim
The previous section refers to the many things Mary needs to prove to make a successful injury claim. But what does it really mean to “prove” a claim? The law puts the responsibility or “burden” of proving the claim on the person making the claim. In legal proceedings, the injured person making the claim, Mary, is referred to as the plaintiff. John, the at-fault driver, is referred to as the defendant. In this case, Mary, as the claimant or plaintiff, has the “burden of proof.” So, Mary has to prove each part of her claim. John does not actually have to prove anything to defend his claim; he (his insurance company and lawyers) only has to show that Mary has not adequately proven any part of her claim to not pay for that part of the claim.
In the legal system, different kinds of cases have different levels of “proof” that must be met: Evidence beyond a reasonable doubt (See, almost every courtroom drama to hear this one–because it applies to criminal prosecutions), clear and convincing evidence, or a preponderance of the evidence are the most common three. In an auto injury claim (which is a “civil” law matter), the “preponderance of the evidence” standard applies. What does that mean? Basically, the evidence should be sufficient to allow someone (ultimately a panel of jurors) looking at the proof offered for a fact to conclude that the fact is more probable than not, or more likely than not, or more likely true than not. In other words, your evidence needs to be more convincing than the evidence against your position on an issue. Or, think of it as 51% or more standard of evidence. You probably want evidence that feels stronger than “barely,” but this is all that a “preponderance of the evidence” burden of proof is supposed to require. Ultimately, if your claim doesn’t settle, whether you have compiled sufficient evidence to prove a part of your claim is decided by the jury.
Even the issue of what can be used as evidence can become quite complex. For example, it surprises most of my clients to learn that much of what is contained in a police crash report is NOT directly admissible in court. Even the fact that an officer concluded that the at-fault driver was in violation of a traffic code and issued a ticket for that violation is NOT admissible in court. The one rule of evidence most people have heard (again, see, courtroom dramas) is the rule banning “hearsay” as evidence. I won’t give the definition here, but its application may make it so you cannot testify in court about what a witness told you at the scene of the accident, or even what your own doctor told you during a medical visit. Even lawyers get confused (or disagree) about what “hearsay” may exclude.
Because of such rules of evidence, if a case goes to a jury trial, opposing lawyers often have significant disputes, ruled on by the judge, on what kinds of evidence are allowed–usually before the trial actually starts. Deciding what is the best kind of evidence to prove a certain loss, filtered by what is allowed in court, and is sufficient to meet that burden of proof, is another reason making a successful claim is hard.
The Amount John Should Pay Mary
Now, assume John’s insurance company recognizes that he drove unreasonably, caused a collision, and is, consequently, financially responsible to pay compensation to Mary. Let’s say John’s insurance company also eventually agrees with Mary on what her harms and losses were (right–not usual). There can still be significant disagreement about what the right amount of money is to fix or make up for those consequences. This is another common discussion I have with my clients in that first meeting when they say it should be “easy” to get John’s company to pay. I ask my client what they think the company should pay. Not surprisingly, they are not sure; in fact, they usually have no idea. I then point out the kinds of negative consequences they are likely experiencing (as I did in the section above on Damages), and that, especially if the client is early in their healing process, they are not done experiencing those negative consequences. So, first, it is usually wise to see what they all are, and for how long, before deciding what the right amount of compensation may be to fix or make up for those consequences. But, eventually, it is time to decide what Mary should reasonably expect John to pay–and demand that from his company. Again, this evaluation, especially without experience with many similar claims, can be hard.
Some parts of the claim seem a little clearer, like the amount of medical bills or lost income–things with a calculable sum. But many of the harms and losses Mary experienced do not come with a price tag. How to figure out the right compensation is beyond the scope of this article. But, even on this point, the legal principle on how to ultimately establish that amount is easy to summarize. Ultimately, the proper compensation for an injury claim is what a jury says it is. It is not what Mary thinks it should be, or her lawyer, or John, or his insurance company and its lawyers. It is what a jury says. This is true because, if a claim does not settle, the final resolution of the claim is a jury verdict. And, unless a court of appeals finds that a jury’s decision somehow violated a legal standard, which is rare, the jury’s verdict is the final word. However, it is also true that very few cases actually go to a jury trial. They are usually negotiated and settled, but always in the setting of both sides trying to divine, and then convince the other side, of what a jury is likely to do with this evidence of these harms and losses, if the claim does not settle. Even experienced attorneys, with jury verdict research, focus groups, etc., cannot know what a particular jury will do with a specific case. But, a career of experience and information is likely better than none. Convincing the insurance company what the right amount of compensation is may be the hardest single aspect of a claim. Eventually, if there is a match between the highest amount the insurance company is willing to offer, and the lowest amount a claimant is willing to accept, then the claim settles. If not, off to a jury trial . . .
And jury trials are hard, even for lawyers. For the untrained, they may be practically impossible. Sometimes it happens in movies, but have you noticed that, in real-life, the people representing themselves in court usually seem a little crazy? Most rational people wouldn’t try.
Prove Unreasonable Driving, Harms, and Proper Compensation
In summary, the concepts seem pretty straightforward: To make a successful auto injury claim, a person injured in an auto collision needs to prove that the other driver did something a reasonable driver would not have done, that the driver’s unreasonable act caused them harm, what those harms were, and then convince the insurance company of the responsible driver to pay an amount reflective of those negative consequences. If that cannot be done, then the injured person can present the case to a jury, and get a verdict (and order) that tells the at-fault driver (and the insurance company) what they must pay. The steps seem simple, but are difficult in the real world. Understanding the law in which these claims are made is important, and not hard to grasp, but actually navigating the system in which this law functions usually takes professional help, by those who have put in the years of study and training to be ready to give that assistance.
So, if you are reading this, and want to discuss options to doing this alone, I’d be happy to spend some time with you on the phone about your claim–free of charge or obligation. No, really. Just click this link and set up a call: https://go.oncehub.com/KevinFine