When you’ve been wronged by someone else, intentionally or by accident, and your injuries are substantial, you may be left wondering if you have a legal remedy in the form of a lawsuit. In order to have a civil lawsuit case, there has to be some legal theory supporting the other party’s liability. This is where the expert knowledge of an attorney comes in, understanding the law and applying it to the facts of your case. Beyond this, there are practical realities that must be taken into consideration as well.
In most civil lawsuit cases, liability is based on the commission of a “tort.” A tort is a civil wrong, as defined by common law, i.e., the collective history of judicial opinions going back hundreds of years. There are many types of torts, from battery to conversion (theft) to defamation. It would be impossible to cover all of them here, but we can briefly overview the most common tort: negligence.
Negligence is so prevalent because it covers almost every situation where an injury is caused by an accident. To demonstrate negligence, a plaintiff must prove each of these four elements:
1. Duty of Care
A duty of care means that, in a given situation, the defendant had an obligation to prevent harm to the plaintiff. For example, a doctor has a duty of care to their patient, business owners have a duty of care to people who come onto their premises, and drivers must operate their vehicles safely on the roads.
2. Breach of Duty
In order to be negligent, a defendant must have breached their duty of care to the plaintiff by failing to exercise reasonable care.
The defendant’s behavior must have been a “but-for” cause of the plaintiff’s injuries, meaning that the injuries would not have happened if not for the defendant’s actions. The breach also must be the “proximate cause” of the injuries, meaning it was a foreseeable consequence of the defendant’s actions.
The plaintiff must have suffered legally recognized harm to themselves or their property.
Whether the case involves a traffic accident or medical malpractice, these four elements provide the general roadmap in a civil lawsuit for negligence.
Virtually every plaintiff’s attorney works on a contingency-fee-basis, meaning the client doesn’t pay any up-front fees, and the attorney will take a portion of any compensation received. Overall, this arrangement is very beneficial to clients and makes legal representation more accessible to everyone, but as a result, there are some practical considerations to take into account.
The Complexity of the Case
How much time and effort will it take to litigate the case? Most civil lawsuits settle before trial, but not all of them. The case may require a lengthy discovery process, numerous court hearings, and even a months-long trial with expert witnesses. A more complex case means more investment in time and money and a less certain outcome. The attorney will have to account for this increased risk.
The amount of damages at issue impacts this calculation; a lawyer simply cannot afford to take the risk if the amount is too low. However, people often underestimate how much their case is worth, so you shouldn’t let this factor discourage you from consulting with an attorney.
The Ability of the Defendant to Pay
You can’t get blood from a stone. A $10 million judgment is just an expensive piece of paper if the defendant has no assets or means of paying you. A very real consideration, therefore, is the defendant’s ability to pay. However, sometimes other parties are vicariously liable, such as when a worker injures someone else during employment, so it’s still worth discussing your case with an attorney.
Talk to an Attorney
The only real way to know whether you have a civil lawsuit case is to sit with a lawyer and tell them your story. A personal injury specialist can quickly evaluate your case, ask the right questions, and give you an idea as to your options moving forward.
The first step is to schedule a consultation. Contact our office to get started today!