Personal Injury

shutterstock_144026332Every day people sustain serious injuries while at work, through slip and falls, negligence of others or automobile accidents.  While I want to give you some material to work with on these subjects, I want you to also understand that the law has become a complicated arena.  Basically, I suggest that when looking for an attorney, you find one that concentrates in that area of the law. For example, I try to limit my legal practice to car wrecks and motorcycle accidents.  However, when I receive a call on other areas of the law (e.g. worker’s compensation), I will provide the caller with the names of attorneys I have met over the years that I trust and practice in that area of the law.

In regard to personal injury claims and injuries caused because of someone else’s fault, the biggest issue is what can your legal team prove.  As a Plaintiff bringing a personal injury claim, we have the burden of proof to show that the other person was negligent and because of their negligence, you were injured. The law is all about what FACTS we can offer to prove this. Judges and juries don’t care about what we think happened but rather, what can we prove. The burden of proof for a civil lawsuit is that we have to prove the case by a preponderance of the evidence. Basically, this is a lesser standard the criminal standard of beyond a reasonable doubt. However, it still means that we have to show that our version of the facts, that demonstrate the negligence of another person caused your injuries, is more likely to be the truth than not.   Reasonable people differ on what they believe, their backgrounds and their perspectives. As a result, the facts that we can truly prove our crucial to succeeding on a personal injury case.

Essentially, fault means negligence. Negligence has the following four elements: 1) a legal duty; 2) a breach of that duty; 3) causation, both actual and proximate and; 4) damages resulting from that breach of duty.  We have to have all four elements to recover on your personal injury claim.  For example, if we can show that a motorist was texting and caused a car wreck, we should be able to recover the damages resulting from the car wreck because the driver was negligent by texting instead of watching the roadway.  To use legal terminology, the at-fault driver had a legal duty to keep his vehicle under control, he breached that duty by texting, that breach caused the car wreck which in turn caused the damages (e.g. damage to the car and the injuries to the passengers in the cars).

So for an example involving a slip and fall injury, we have to show that the store owner breached his duty to his customers by creating an unsafe condition (e.g. a wet floor with no warning sign).  In contrast, worker’s compensation laws do not require that we show an employer was negligent to recover on the worker’s compensation claim. Rather, the employee’s rights and remedies are set out by legal statutes and in exchange for those legal rights, the employee gives up the right to sue the employer for their possible negligence.

Steps to take when someone’s negligence injures you.

So when you are injured because of someone else’s negligence, take photographs of the cars at the accident if you can. Obtain the contact information for any witnesses who may have seen the automobile accident.  Also, report the injury to the manager, if the injury occurs at a business, or the police.  They should create an incident report detailing your injuries and the facts of the accident. Makes sure you obtain the report number and/or the name of the person taking the incident report.

Second, go ahead and go to the Emergency Room if you are experiencing pain. It is okay to use your health insurance to pay for these charges. If there is other insurance coverage that should have been primary, we can always coordinate against that med-pay or no-fault insurance at later date to get the health insurance reimbursed.

Third, contact a personal injury attorney to discuss the details of your injury claim without waiting. Why? Remember that every case has a statute of limitations and in some cases, usually when a governmental entity is involved, you may need to give that organization legal notice of your claim before the statute of limitations runs (e.g. expires). Once again, it is your choice how you want to hanlde your personal injury claim.  But it is my job as an injury lawyer to make sure you have the legal information you need to make a wise decision in regard to that claim.

When you need to talk to an experienced personal injury lawyer, you can reach me directly on my cell phone (502) 609-7657.

How Much is My Personal Injury Claim Worth?

shutterstock_144026206I had an injured client ask me, “How do I maximize my personal injury settlement?”  My answer was “The worst you are injured, the higher value your personal injury claim may have.”

Injury claims are made entirely upon the contents of the medical records. Personal injury claims live and die on the content of their medical records.  So when you ask a personal injury lawyer what a claim is worth, the honest answer is he has no idea until he has all your medical records in front of him and can review them in light of the nature of your injuries, the length of your medical treatment, the severity of the damage to the cars and the issue of who caused the accident.  Note that to succeed on a personal injury claim, you have to show that someone else’s negligence caused your injuries.  So we not only have to show your injuries are legitimate, that they are documented by your medical records and that they affected your life, we also have to prove that but for the other person’s negligence these injuries would not have occurred.

In regard to car wrecks, I do give my client this legal advice as to the value of their personal injury claim.  First, the average soft-tissue claim (eg. cervical and lumbar strains without the need for surgery or pain management) settles between $3,000 to $10,000, plus the medical expenses.  Nevertheless, that is not a hard and fast rule. I had as a client a friend who lived in Prospect, Kentucky. While she did everything right in regard to her personal injury claim, the adjuster made a low-ball settlement offer as her medical records made it clear that she went to Disney World. The idea being how could she be legitimately  complaining of neck and back pain and yet, riding around an amusement park.  As a result, this one fact, severely lowered the amount we had hoped to recover on the personal injury claim.

Similarly, I had a good injury case that had a lesser than average value because of how my client behaved in the Emergency Room of Jewish Hospital.  In short, his records said he was eating potato chips, did not appear to be in any distress, was combative toward the ER doctors and trying to take photographs of the Emergency Room. The insurance adjuster knew that a jury would not have been sympathetic to my client in light of his erratic behavior.


As a personal injury lawyer, it is my job to worry about what your claim for pain and suffering is worth. For you, as an injured victim, I want you to concentrate on doing the best you can to get back to your pre-injury status as quickly as possible.

Recall my cell phone is 502-609-7657 if you have any questions.

Attorney Jim Desmond