CAN I SUE?

Are you wondering whether you have a potential lawsuit?  A personal injury caused by a car accident, a slip and fall or medical negligence matters little.  The results can be devastating.

Basically any competent adult or legal entity can sue someone. However, before pulling out your legal “guns” you really need to ask yourself three basic questions in deciding whether it worthwhile to bring sue in court or proceed with an arbitration:

Rule Number 1:
Do I have a good case?
Rule Number 2:
Assuming I have a potentially good case is lawsuit or demand for arbitration my best or only option, can I collect if I win?
Rule Number 3:
Do I have realistic expectations, that is are you comfortable with the idea of a compromise settlement or going to mediation?  If your motivation is to “teach a lesson” or “personal revenge” and you “will never settle” in my opinion that is your right but not realistic.
Rule Number 4:
Do I have a reasonable likelihood of winning a trial? Both on liability and damages?

If the answer to any of these rules questions is no, you probably will not want to sue.

Rule Number 1:
Do I Have a Good Case?
To figure out whether you have a good case, it helps to know what you need to prove. In a claim of negligence there are certain elements that must be proven. Once you know what the elements are for a negligence cause of action you can view your claim from that perspective. The essential factual elements for a negligence claim are as follows:

You claim that you were harmed by the Defendant’s negligence. To win on your claim you must prove all of the following:
1. That Defendant was negligent;
Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. In a rear end car accident, this is probably not too difficult. In a slip and fall case if you cannot show the premises were in an unsafe/dangerous condition more difficult. Just because you were injured on another person’s property does not make them responsible.  In a medical malpractice case you usually need a medical expert testifying against the defendant. Medical malpractice cases are amongst the most difficult cases to prove.
2. That you were harmed; and
The nature and extent of injuries are often disputed by the defendant.
3. That Defendant’s negligence was a substantial factor in causing you harm.
Problems arise in all types of claims in showing a substantial relationship between the claimed injury and the negligent conduct. For instance a low impact car accident and claims of serious injuries. Or in a medical negligence case for instance and the negligence claim there was a failure to timely diagnosis a condition, Defendant contends the delay made no difference in your treatment or the outcome.

Damages. You must prove that you suffered injuries and / or economic loss as a result of the Defendant’s negligence. This element can be very difficult to prove at times.  It is often very difficult for lay person to evaluate Rule Number 1. If you believe you have a claim you should consult a personal injury or medical malpractice attorney familiar with your type of claim. Most attorneys offer free consultations. As do the Law Offices of Richard M. Katz.

Rule Number 2:
Assuming I have a potentially good case is lawsuit or demand for arbitration my best or only option? Can I collect ?
If you decide, without the aid of an attorney, you have a good case, do not rush out and make demands, threats or file a lawsuit on your own. First, think about consulting an attorney. Personal injury attorneys and medical malpractice attorney’s offer free consultations and when taking on a case will often take a case on a contingency basis. Of course you can talk directly with your opponent and try to negotiate a mutually beneficial compromise but my experience has shown that rarely works. For many reasons, including some folks have unrealistic expectations about the value of their case or the nature of their injuries.  Filing a lawsuit immediately, is not necessarily  in your best interest. Sometimes a better settlement can be achieved before litigation particularly where liability appears strong and the harm is not in great dispute.

Can I Collect if I Win? The answer to the third question is incredibly important. There is little to gain in litigating a matter if the other party has no insurance and no assets.

Rule Number 3:
Do I have realistic expectations, that is are you comfortable with the idea of a compromise settlement or going to mediation?  Fewer civil cases are going to trial than a decade ago, and juries are awarding less in damages, according to a recent U.S. Justice Department study of state courts.  About 97 percent of civil cases are settled or dismissed without a trial. What this means is most cases settle because it is in the best interests of the parties to do so. You probably have heard that “cases often take on a life of there own.” I believe that to be true. I have personally seen some cases become stronger during the litigation process and some cases become weaker. If you do not have realistic expectations as to the value of your claim and have a mind set of “no compromise” you will be disappointed with the process.

Rule Number 4:
Do I have a reasonable likelihood  of winning a trial? Both on liability and damages?
Do not get me wrong there are cases that must be tried or arbitrated to a conclusion. Often times the Defendant, his/her/their attorneys, or an insurance carrier is unrealistic. Or see things very differently then you and your attorney see them. Then a trial or arbitration is necessary and desirable.  Again keep in mind that only about 3% to 5% of case go to trial or arbitration.

Conclusion
If you or a loved one suffers a personal injury consider the above. Thank your for your time.  The Law Offices of Richard M. Katz, Pasadena, California. 626-796-63333

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