Three Ways a Personal Injury Case is Defended – Houston Personal Injury Lawyers
Common Arguments Used by the Defense to Lower the Value of Your Claim
There are a number of different ways that a defendant can attempt to limit the success of your lawsuit, and these are called defenses. Our Law Office has dealt with hundreds of cases and our attorneys have identified some of the common ways that a case can be defended.
What Are the Common Ways a Case is Defended?
When you file suit against someone, you are known as the plaintiff and the person you are filing suit against is known as the defendant. The plaintiff has what is called the burden of proof, which means that they are responsible for proving the case. Naturally, since you are trying to accuse the defendant of doing something that is wrong, they go on the defensive. There are three main ways that our attorneys have identified that a defendant can use to defend a case: 1) the plaintiff fails on his own merits, 2) Ordinary defenses, and 3) Affirmative defenses.
The Plaintiff Can Fail on His Own Merits
The plaintiff has the burden of proof to show that the defendant is guilty of whatever the plaintiff is accusing them of. For example, if you got into a car accident and the defendant caused the crash you would be suing him in a negligence cause of action. Therefore, as the plaintiff you would have the burden of proof to establish that defendant was negligent.
In order to do this you would have to present evidence that convince a jury, by a preponderance of the evidence, that the defendant was guilty of negligence. A preponderance of the evidence means that the jury must find, based on the evidence that it was more likely than not that the defendant was negligent.
However, many times a plaintiff is not able to present the facts and evidence in the best way possible to prove his case without the assistance of legal counsel and therefore fails in his case on its own merits. Other times, a plaintiff might have a good case and hire an attorney who is inexperienced and is not able to prevail in the case despite the good evidence and facts present in the case.
Ordinary defenses or reactionary defenses are used by a defendant and basically shoot down the plaintiff’s arguments. For example, the plaintiff will make a legal argument about the defendant’s negligence and the defendant will poke holes in the argument so that the jury will not believe the plaintiff’s side of the story.
There are different ways that ordinary defenses can be used such as with rebuttal evidence. Rebuttal evidence is evidence that is used to rebut an assertion that the plaintiff has made about the defendant. For example, if the plaintiff claims that the defendant ran a red light and collided with him, rebuttal evidence could be eyewitness testimony that states that the light was green and not red when the defendant crossed the street.
Another defense that is commonly used by defendants is what is called an affirmative defense. An affirmative defense is made by a defendant and affirms that part of the plaintiff’s claim is true, but offers other evidence that shows that the defendant was not liable to the defendant.
For example, if the defendant crashed into the back of the plaintiff’s car he could use the affirmative defense of contributory negligence by arguing that although he did crash into the plaintiff’s car but he only did so because the plaintiff’s brake lights were broken and he could not tell that the plaintiff’s car was slowing down. Therefore, he is not liable to the plaintiff because the plaintiff was contributorily negligent in the crash.
You Need an Experienced Attorney to Help You Overcome These Defenses
Although the three main types of defenses have been generally explained in this article, there are still a large number of ways these defenses can be used against you in a case. One of the biggest mistakes you can make when dealing with a lawsuit is not hiring an attorney or hiring one that is not experienced enough to anticipate and overcome the defenses used by a defendant.
“Last Clear Chance” as a Personal Injury Defense – Houston Personal Injury Lawyers
What is the Last Clear Chance Doctrine, and How Can it Affect my Case?
If you have suffered an injury due to the negligent conduct of another party, you may be able to recover for the damages you have suffered. The specific circumstances that led to your injury will determine what must be proven in your cause of action for your theory of recovery to be successful. This is why it is important that you obtain skilled legal representation to ensure that your claim is successful.
As you can imagine, in every lawsuit there will be obstacles that your claim will encounter that may stand in the way of your ability to get the recovery you deserve. There are many defenses available to the party you file suit against. This is even more of an issue if the defendant has an attorney formulating arguments to avoid being held liable for your losses. One of these defenses that could potentially be used against you is the Last Clear Chance Doctrine. However, with an attorney who knows this area of the law fighting for you, your case can defeat these defenses because this doctrine may also be utilized to your advantage. Our attorneys have been handling personal injury cases for over twenty years and have the necessary training and expertise required in these types of lawsuits.
What is the Last Clear Chance Doctrine?
The last clear chance doctrine is a legal concept that is used in certain jurisdictions depending on the model that the particular location uses to evaluate the fault of different parties involved in a lawsuit. It basically allows a plaintiff filing a lawsuit to recover even if they are negligent and contribute to the accident if the defendant had the last opportunity to prevent the accident from occurring.
Does Texas Have the Last Clear Chance Doctrine?
Although the doctrine is used widely in other jurisdictions, Texas traditionally favors using modified comparative fault in order to draw a broad analysis of fault in an accident. This can be to your advantage because in Texas the fault of both parties is evaluated and then each party will be allotted a percentage of the blame. Texas law permits a plaintiff to recover so long as you were not over 50% responsible for the accident that occurred.
Therefore, there is no need to determine who had the last opportunity to avoid the accident in order to gauge whether or not you may still recover for your losses, as you may recover regardless. This can be difficult to discern depending on the circumstances of the accident that you were involved in.
Pre-Existing Conditions and Personal Injury Cases – Houston Personal Injury Lawyers
I Have a Pre-Existing Condition or Injury, Will This Affect my Personal Injury Case?
Our Houston attorneys have won thousands of cases. Call us today to discuss your case.
Many people struggle throughout their lives with diseases and conditions. When you have been in an accident such as a car accident, or been the subject of a medical malpractice lawsuit these conditions can become issues in your case. This can be very problematic because generally in this lawsuit you will be suing an entity that is going to have to pay out on these injuries you have suffered.
Unfortunately, this is a problem because insurance companies do not want to pay for these things and they are going to do everything in their power to prove that some of these conditions or injuries you have may have been in existence far prior to their tortuous conduct, therefore they should not have to pay for it. This article will discuss pre-existing conditions and how they may affect your personal injury case.
What is a Pre-Existing Condition?
A pre-existing condition is basically a health or mental health condition or some form of illness or disability that you may have had prior to getting health insurance coverage. Therefore, it is determined to have existed before you got coverage. The way that this can be used against you will be to deny coverage or attempt to give you a higher premium because of the fact that you have this condition. Examples of something that would be a pre-existing condition would be high blood pressure, asthma, diabetes or a heart condition.
However, the Patient Protection and Affordable Care Act was signed into law in March of 2010 and prohibits pre-existing condition requirements that have been imposed by health care plans. As of September of 2010, children that are below the age of 19 cannot be refused coverage under their parent’s health plan and insurance coverage based on any pre-existing condition. Furthermore, in 2014 this began to apply to adults as well.
How do Pre-Existing Conditions Affect my Personal Injury Case?
As stated earlier, the easiest thing for defense lawyers to argue against your case for damages resulting from a personal injury is that regardless of whatever tortuous conduct was committed by their client, your injury was beforehand. The area where this becomes an issue for the plaintiff is that in a negligent personal injury case you must establish that there was a duty on the part of the defendant, they breached that duty, there was an injury and that conduct caused that injury. Therein lies the crux of the problem. If you cannot establish the causation element between that defendant’s conduct and your injury because your injury was a pre-existing condition then you are not going to be able to meet the requirements to recover against that party. You must prove to the jury that the injury was truly caused by the defendant’s conduct, and not something that you were struggling with far prior to the events that spurred this litigation. This can be a difficult thing to establish, but with experienced legal representation it can be done.
Are There Laws to Help With my Pre-Existing Condition Issues?
The answer to this question is a resounding yes. While preexisting conditions are troublesome to plaintiff’s attorneys, they are equally troublesome to defense attorneys. There is something in existence that is called the “eggshell skull” or “thin skull” rule.
This means exactly what it sounds like. You treat your victim as though they have a skull made out of an eggshell. Therefore, if you are injured by the negligence of another party and it aggravates an existing condition and it results in you having a more severe injury than it would to a party that did not have this injury, the injuring party is equally liable regardless.
In sum, there are a number of different legal mechanisms that can be used to ensure that you are able to receive maximum recovery for the losses that your have incurred because of the negligence of another party. Our attorneys are well-versed in these laws and will do everything we can to make sure that you are compensated accordingly. To discuss the particulars of you case, contact us.
Intervening Causes in Personal Injury Cases – Houston Personal Injury Lawyers
What is an Intervening Cause in Relation to a Personal Injury Claim or Lawsuit?
One of the elements of proving negligence in a personal injury claim is causation. To be awarded damages, the plaintiff must prove that the defendant had a duty of care, he breached that duty, the victim suffered damages, and those damages were directly caused by the defendant’s actions.
The defendant can only be held liable for the plaintiff’s injuries if the defendant’s actions were the direct cause of the victim’s injuries. This means that a direct link must exist between the defendant’s actions and the injury. Occasionally, the defendant will be able to assert an affirmative defense such as an intervening cause. An intervening cause may absolve the defendant from liability; however, it typically will not absolve the defendant on the sole argument that it is an intervening cause.
What is an Intervening Cause?
Generally, an intervening cause breaks the link between the defendant’s action and the injury caused. There are several requirements that must be satisfied before an event can be labeled an intervening cause. To be classified as an intervening cause the event must have occurred after the defendant’s negligent action, but before the victim’s injury occurred. Additionally, this intervening cause must have actually caused the injury. If all these elements are met, the event can be deemed an intervening cause by the court and relinquish the defense from liability. For example, say you own a restaurant that is occasionally run by a generator located in the back alley. You spill gasoline while trying to refuel the generator and fail to clean it up. Then one of your kitchen staff goes in the back alley for a cigarette break and when finished accidentally flings the lit cigarette into the puddle of gasoline and causes an explosion of fire. This cigarette is considered the intervening cause for the explosion and fire. It occurred after your negligent actions and is the direct cause of the injuries sustained. However, even though this is an intervening cause, it will not necessarily release you from your legal obligation.
To absolve you from being responsible for any damages the intervening cause must also be a superseding cause. Like an intervening cause, the superseding cause occurs after the defendant’s negligent actions, but before the resulting injury. A superseding cause is the actual cause of the injury, but unlike a regular intervening cause, the harm was not foreseeable. Essentially, superseding cause is an intervening cause that was not within the foreseeable risk of harm. If the defendant can prove that the event was a superseding cause, and not merely an intervening cause, then they may be excused from being liable for any damages.
So what qualifies as a superseding cause? As discussed above, if you refuel the generator in the back alley and fail to clean up the spilled gasoline it is within the foreseeable risk of harm that someone may carelessly toss a lit cigarette into the flammable puddle. However, consider this alternative. Say you spill the gasoline and it forms a medium size puddle in the crevices of the ground. Later on a person is beat up by gang members, knocked unconscious, and the victim falls face first into the puddle. The gang members leave him and the victim ultimately drowns in the puddle of gasoline. Would this be considered a superseding cause relieving you of liability? It is likely that the court would find this to be a superseding cause. When you spill gasoline the fear of possible injury is due to the fact that it is highly flammable. Therefore the foreseeable risk of harm would be that someone would accidentally cause it to catch fire. It is absolutely not foreseeable that someone would become unconscious and drown in the puddle due to your failure to clean up.
Intentional Torts and Intervening Causes
There is also one more exception that would allow an intervening cause to excuse the defendant for liability. If the intervening cause is an intentional tort then the defendant would be no longer responsible for his negligence. Basically, if the person responsible for the intervening cause deliberately acted with the intent, they would then be responsible for all damages.
For example, if the kitchen worker intentionally threw his lit cigarette into the puddle of gasoline, and knew that it was gasoline, this would be considered a superseding cause instead of just a simple intervening cause. Since the kitchen staff knew that the puddle was gasoline and it is common knowledge that gasoline is highly combustible, it is logical to think that he intended to cause the resulting explosion and fire. This would absolve the original defendant from liability and entirely shift the blame to the kitchen worker.
Assumption of Risk in a Texas Personal Injury Case – Houston Personal Injury Lawyers
How Does Assumption of the Risk Factor into my Personal Injury Case?
If you are hurt in an accident, a common defense by the person or company that hurt you is that you assumed the risk of your injury. Assumption of the risk is a legal doctrine that dates back to ancient England. Just as it sounds, assumption of the risk is a wrongdoer’s claim that you knowingly and voluntarily assumed the risks associated with whatever you were doing when you were injured, and therefore the wrongdoer owes you nothing.
An example is skydiving: If something goes wrong during your skydiving jump and you are injured, and if you sue the skydiving company for compensation for your injuries, the company will claim that you voluntarily jumped from the plane fully knowing just how dangerous skydiving is. No one forced you to jump. You didn’t think you were playing tennis. You knew you were about to jump from a plane and you jumped willingly: you assumed the risk of the injuries related to skydiving. Ski resorts and scuba diving companies also claim customers assume the natural risks associated with those sports.
No Recovery for Injured Person
If the person who injured you successfully asserts assumption of risk as a defense in your lawsuit against them, you will potentially recover nothing. Assumption of risk is a total bar to your reimbursement. The reason: in theory, if you assume the risk of injury, the wrongdoer no longer owes you a duty of care. Without a duty of care, and a breach of that duty, there can be no negligence.
To fully assume a risk of being hurt, you have to:
Know just how dangerous something is, and voluntarily do it anyway.
If you ask someone if an activity is safe and they assure you it is when it really isn’t, you do not voluntarily assume anything. Their assurance that the activity is safe makes your assumption of the risk involuntary. And if you run into a burning home, you may be said to have assumed risk. But if you run into a burning home to save your family members’ lives, it can be argued that you did not do so voluntarily: you had no choice in the matter.
While negligence is an objective standard – what a reasonable person would have done –assumption of the risk uses a subjective standard. The question is: did you fully appreciate the risk of what you were doing.
For example, just because you assume a risk, does not mean you assume all risks. If you ride with a friend knowing he has been drinking alcohol, you assume some risk of the injuries associated his drinking and driving. But if your drunken friend’s car has defective tires on it that you don’t know about, and the defective tires cause an accident, you did not knowingly assume that risk.
State Laws and Car Accidents
Some states have done away with this old English doctrine when it comes to car accidents. In some old cases, people who caused accidents then claimed injured people assumed the risk of injury simply by driving vehicles on roadways.
This acted as a total bar to recovery by the injured people. Modern state laws, like those in Texas, allocate responsibility according to who is at fault: for example, 75% to one person involved in an accident and 25% to the other.
Our Law Office has been representing personal injury victims for over 20 years. Today our team represents men and women injured in all kinds of mishaps. If you are involved in a personal injury case and need a lawyer, please call us.
Is Opposing Counsel Trying to Contact You? – Houston Personal Injury Lawyers
The Attorney for the Person Who Injured Me is Trying to Call or Contact Me, What Should I Do?
Attorneys are held to a very high standard in society in the way that they carry themselves both professionally and socially. In fact, there is an entire code of professional conduct that dictates what can and cannot be done by lawyers in order to keep the vocation that’s given a great deal of respect. When these rules are broken drastic measures are taken that can result in disciplinary action. Lawyers can be suspended or even have their license revoked permanently for breaking this code of conduct.
When you have been injured and are seeking legal recourse, attorneys wishing to extract information from you or wishing to represent you and benefit financially from your loss will undoubtedly contact you. The attorneys at Our Law Office have received consistent awards and acknowledgements from many respected associations for their integrity, honesty and professional accomplishments in the field of law. If you have been injured, you need to be represented by an attorney who has your best interests at heart. That is just what is offered by the attorneys in our firm. You may not realize when attorneys may be breaking these codes of conduct or committing malpractice. We understand the pain and suffering that can result from the loss of a loved one or your own personal injuries, and we conduct our practice in a way that seeks to make sure that you are able to receive whatever financial compensation is necessary to help you recover from these tragedies. This article will discuss what you should do if an attorney representing the party that injured you contacts you to ensure that your interests are protected.
Are Attorneys for the Defendant Allowed to Communicate With Me?
The simple answer to this question is, NO. However, this hinges upon whether you have retained legal counsel to represent you in the matter. Under the Texas Rules of Professional Conduct, Rule 4.02(a) states that when representing a client a lawyer may not communicate with, or cause or encourage another party to communicate with you about the lawsuit at hand if he knows you are represented by another attorney on that case. The only time in which it would be appropriate for the other lawyer to call you and discuss the pending litigation with you would be if your lawyer gave them consent to do so. If the lawyer knows or should reasonably know by the circumstances that an attorney represents you, then they should not be contacting you at all. In fact, if this does occur you should contact your lawyer immediately because attorneys have an obligation to report instances of misconduct by other counselors. The addition of the statement that they may not encourage another person to obtain information from you without the authorization of your lawyer expands the rule to provide even more protection to you. If you have retained skilled legal counsel such as the attorneys at our law office, by no means whatsoever should the attorney of the other side attempt to extract valuable information from you. This is prohibited conduct. This is basically an illegal method of obtaining evidence to prevent you from recovering, and it is not allowed.
What if I am Contacted by the Other Lawyer and I am Unrepresented?
If you have not retained legal representation for your cause of action and are contacted by an attorney, there are certain rules that govern how lawyers interact with you as well. The Texas rule states that a lawyer, when conducting the representation of his client may not represent to you that they are disinterested in the matter in an effort to get information from you that will benefit their client.
Furthermore, the rule states that when the lawyer knows or should reasonably know that you do not understand what his role is in relation to the case then they should make sure to clarify the fact that they are in fact representing the party that injured you. In other words, they cannot play dumb in a way to try to get you to make statements that are detrimental to your case. This is one of the reasons that it is so incredibly important that you seek representation immediately to protect your cause of action. You can easily be taken advantage of and not realize that you are saying things that will jeopardize your ability to recover for your losses. Our attorneys have been representing clients in personal injury lawsuits for decades, and maintain a very well respected and reputable law practice. We want to protect your interests so that you are able to get what you deserve. Do not allow other attorneys to contact you and solicit information that could kill your potential lawsuit. We strive to make sure our clients have the best legal representation available. In order to make sure that your theory of recovery is protected contact us.
Consent as a Defense in Personal Injury Cases – Houston Personal Injury Lawyers
Does Giving Consent Bar me From Bringing a Personal Injury Claim?
If you or your loved one was injured by playing football, doing a 5K walk, or participated in any activity or behavior in the Houston area and you are unsure if you have a cause of action because you consented to the activity, then you should contact an attorney because you may be entitled to receive compensation.
Rule of Consent
The general rule for consent is that if a person who consents to an activity or behavior and then becomes injured is not entitled to receive damages or compensation for their injuries. An example of consent can include you signing a waiver or a release form for an activity that could possibly cause you to be injured. Even though you consented to participate in the activity or behavior you did not consent to be hurt. If someone intentionally hurt you while you were participating in the activity or behavior then you could file a cause of action of negligence against them. This person had to intentionally, willingly, and knowingly cause your injuries.
For example, you signed up to play basketball for a league in the Houston area. During one of the basketball games, you go up to the rim for a layup and upon coming down, a player from the opposing team pushes you to the ground causing you to break your nose and arm. You can bring a cause of action against the defendant because he intentionally hurt you and despite his argument that you consented to the injuries; you did not consent to get hurt, you consented to play basketball.
Types of Consent
There are two types of consent, expressed and implied. Expressed consent means that before you participated in the activity or the behavior you signed a waiver or a release form. Implied consent is like the example above except that there isn’t a tangible or physical waiver or release form but you still participated in the activity or the behavior.
Obstacles to Proving Consent
Consent can be a very challenging issue to litigate because the defendant can use consent as their affirmative defense or strong argument. The defendant will argue that once you signed the waiver or release form or you began to participate in the activity then it was done at your own risk and you accepted the responsibilities for your injuries. In many cases, implied consent is harder to prove then expressed consent.
However, without an attorney it will be harder for you to defend yourself against this argument because the defendant will have evidence to try and support their claim. Hiring an attorney that has the expertise and the knowledge of personal injury cases will help you argue and prove the alternative.
The attorney can show that although there was an implied or expressed consent to participate in the activities, you did not consent to the unforeseen dangers that would have resulted from the activity. An attorney can also prove that the injuries you suffered may have been intentional. These are just a few arguments that an attorney can raise on your behalf.
What is the Collateral Source Rule? – Houston Personal Injury Lawyers
How the Collateral Source Rule Applies to a Personal Injury Case in Houston
If you’ve been injured by someone else’s negligent or reckless conduct, you may have heard of the “collateral source rule” and are curious if it applies to your personal injury case. Before diving into the nuances of the collateral source rule, it’s important to note that determining if the collateral source rule applies to your case is a complicated process that requires a detailed analysis of the particular facts of your case by a personal injury attorney. Simply put, retaining an experienced personal injury attorney like ours is the best way to determine if the collateral source rule applies to your personal injury case.
The Collateral Source Rule Prevents Personal Injury Defendants from Asserting the One-Satisfaction Rule to Insurance Proceeds
The collateral source rule is a rule developed and adopted by courts across Texas that prevents the party responsible for inflicting personal injuries on another to offset compensation to their victim because they have received benefits from an insurance policy. The reasoning behind the rule is that the responsible party shouldn’t unfairly benefit in a personal injury case just because their victim had the foresight to purchase a health insurance policy and is designed to encourage Texas residents to purchase private insurance.
The collateral source rule has serious implications for personal injury cases: namely, juries can’t know or consider that the injured party has health insurance when determining the defendant’s liability and the amount of damages the defendant should pay the victim.
An Illustrative Example of How the Collateral Source Rule Applies to Personal Injury Cases
You may find this illustrative example helpful in parsing out the nuances of the collateral source rule in personal injury cases. Assume that you have suffered personal injuries in a truck accident due to the negligent driving of the semi-truck’s driver. After seeking medical attention for any emergency injuries, you should immediately contact an experienced personal injury attorney, like ours.
Our firm has been fighting for victims` rights for over 20 years. Call to discuss your case.
Our attorneys and staff will then begin collecting the evidence needed to win your case and maximize your compensation. Our attorneys will then contact the responsible truck driver and his employer, and if a favorable settlement can’t be reached, we’ll file a lawsuit on your behalf.
At trial, the defendant may attempt to assert the one-recovery rule to avoid a portion of their liability for your injuries. Although some experienced attorneys and law firms may miss this crucial error, our experienced attorneys know your rights under Texas’s personal injury laws, and will assert the collateral source rule on your behalf so that the parties that caused your injuries won’t unfairly benefit from your foresight to purchase an insurance policy.
As you can see, determining if the collateral source or one-satisfaction rule applies to your case can be difficult. To ensure that your rights are fully represented, you need a smart and aggressive personal injury attorney on your side. Our experienced personal injury attorneys are committed to securing the compensation you deserve for your injuries, and are available any time, day or night, to provide a free consultation regarding your potential personal injury lawsuit and if the collateral source rule applies to your case.
What is the Plaintiff’s Duty to Mitigate Damages? – Houston Personal Injury Lawyers
The Injured Party Has a Duty to Mitigate (or Prevent Further Aggravation of) Their Injuries Following an Accident
If you’ve been injured by someone else’s negligent or reckless conduct, it’s important that you take certain actions to preserve your case against the party responsible for your injuries. One of those actions is to “mitigate” your injuries; that is, you need to take action to prevent your injuries from being aggravated. Failure to mitigate your injuries may prevent you from recovering the entire amount of compensation you deserve for your injuries. Thus, to ensure that your injuries are fully compensated, you should retain an experienced personal injury attorney that knows how to assist injury victims with mitigating their injuries. Our attorneys have the skill and experience necessary to advise you on how to mitigate your damages so you aren’t stuck paying for your own injuries.
Personal Injury Victims Have a Duty to Mitigate Their Damages
Texas law requires personal injury victims to prevent their injuries from becoming aggravated by acting in a manner that should minimize the harm they’ve suffered and seeking medical attention when necessary. Usually, this means that a personal injury victim should take care not to engage in activities that will aggravate their injuries, such as participating in contact sports or lifting heavy objects. Moreover, personal injury victims have a duty to ensure that an injury isn’t aggravated by foregoing medical attention, and should contact a doctor or seek emergency healthcare as soon as possible after they are injured.
Potential Consequences for Failing to Mitigate Your Damages
If you fail to mitigate your damages, the judge in your case may decrease the amount of compensation you can recover from the defendant for your injuries. However, it’s important to note that failure to mitigate your damages is not a complete bar to recovery; rather, failure to mitigate your damages will only reduce the compensation you can recover from the defendant, as the court will adjust your award to reflect the portion of your injuries for which the defendant is responsible.
To illustrate the importance of mitigating damages in personal injury cases, consider this example of an injured car accident victim. In this example, a driver was on his way to play a friendly game of football with his friends when he was suddenly hit by a negligent driver, and suffered a partially fractured collarbone as a result. Although the driver is in significant pain and has noticed intense swelling around his collarbone, he decides to play football with his friends anyway.
During the football game, the driver is tackled hard which caused his collarbone to completely break and become infected after it protruded through his skin. The injured driver then sued the negligent driver responsible for partially fracturing his collarbone for the full extent of his injuries.
However, the court will reduce the driver’s recovery to reflect the fact that the driver was only responsible for partially fracturing the driver’s collarbone, and the victim was responsible for aggravating his injuries so that he had a completely fractured collarbone that became infected.
Best Practices for Mitigating Your Damages
As you can see, mitigating the injuries you’ve suffered caused by someone else’s negligence or recklessness is extremely important not only to your health, but to ensuring that you are fully compensated for your injuries. To achieve these goals, you should be sure to do three things: seek medical attention as soon as possible, take care to stabilize and not aggravate your injuries, and contact the experienced personal injury attorneys at our office. Our attorneys have more than two decades of experience representing personal injury victims, and are available any time, day or night, to provide a free consultation regarding your injuries and what you might need to do to mitigate your damages.
What is Prejudgment Interest? – Houston Personal Injury Lawyers
Recovering Prejudgment Interest in Addition to Your Personal Injury Compensation
If you’ve been injured by someone’s negligent or reckless actions, you may be entitled to compensation for your injuries. If your personal injury lawsuit is successful, you may also be entitled to prejudgment interest (as well as post-judgment interest) on the compensation you’ve been awarded. However, before discussing how prejudgment interest may affect recovery for your injuries in a personal injury lawsuit, it’s important that you realize that the applicability and calculation of prejudgment interest in your personal injury lawsuit requires a thorough examination of the facts of your case by an experienced personal injury attorney. Our attorneys have more than 20 years of experience representing personal injury victims like you, and are dedicated to assisting you obtain full compensation for your injuries, including prejudgment interest.
Prejudgment Interest and Texas’s Personal Injury Laws
Under Texas’s tort laws, personal injury victims are entitled to a variety of damages designed to compensate them for the injuries they’ve suffered and the unexpected medical expenses they’ve endured. Additionally, Texas law has made available prejudgment interest for those damages, which are essentially additional damages for a victim’s lost use of the compensation they’ve received for the time period between the time their claim accrued and the close of the case. Texas law has made a point of enforcing the fact that prejudgment interest is solely intended to compensate a personal injury victim for the loss use of the money from the judgment, and is not a penalty, a fine, or a “windfall.”
It’s important to note that some types of compensation under Texas’s personal injury laws aren’t subject to prejudgment interest. For example, future damages like lost earning capacity, attorney’s fees and costs, and punitive damages aren’t subject to prejudgment interest.
The Purpose of Prejudgment Interest
Texas’s personal injury laws have purposed prejudgment interest to expedite the judicial process by punishing the party responsible for causing the victim’s injuries for unfairly delaying the judicial process by imposing a monetary penalty. Courts have reasoned that this arrangement is reasonable for both personal injury victims and defendants because it removes the defendant’s incentive to unfairly delay paying a judgment by dragging their feet and doesn’t create an inequitable benefit for the injury victim.
How Are Prejudgment Interest Calculated?
Our Houston Texas attorneys have won hundreds of cases. Call us today to discuss your case.
Simply put, calculating prejudgment interest is complicated. Your attorney will likely retain the assistance of an expert in quantifying prejudgment interest. The calculation they will perform is either governed by the Texas Finance Code or by the court’s determination of “equity,” or what is fair for your case.
For the purposes of personal injury cases, courts calculate prejudgment interest by using the Texas Finance Code when calculating prejudgment interest using a “prime” rate that ranges between five and fifteen percent, and is calculated as simple interest. Calculations for prejudgment interest occur the earlier of 180 days after the defendant received notice of your claim or when your lawsuit is filed with a court, and ends the day judgment is entered in a case.
As prejudgment interest can only start to accrue after the defendant is notified of your lawsuit, you should retain an experienced personal injury attorney as soon as reasonably possible after you’ve been injured. Our personal injury attorneys are here to help you, call us.
What is Post-Judgment Interest? – Houston Personal Injury Lawyers
Post-Judgment Interest Can be Used to Ensure You Get Your Compensation Sooner Rather Than Later
Our attorneys and staff are dedicated to obtaining the maximum compensation possible for our clients’ personal injuries, including prejudgment and post-judgment interest. If you’ve suffered personal injuries because of someone else’s negligent or reckless actions, you may be entitled to compensation for your injuries. To ensure that you are fully compensated you should retain an experienced personal injury attorney who knows how to apply and enforce post-judgment interest to a court’s award. Our attorneys have a successful track record of obtaining favorable judgments and enforcing post-judgment interest for our clients for over 20 years, and may be able to put their unique combination of skill and expertise to work for you.
Post-judgment Interest and Texas Personal Injury Cases
A personal injury victim can assert a lawsuit against the parties that caused their injuries under Texas’s personal injury laws to recover compensation for those injuries and their associated medical expenses. Texas law also allows personal injury victims to attach post-judgment interest to their court award, which is intended to reimburse the injury victim for their lost ability to invest their judgment proceeds.
The Purpose of Post-judgment Interest in Texas Personal Injury Cases
Post-judgment interest is designed to encourage parties that are responsible for causing someone’s personal injuries to quickly pay the judgment asserted against them and to prevent them from making delayed judgment payments by asserting frivolous appeals or through indifference. Notably, post-judgment interest is applied to the entire judgment, including prejudgment interest, court costs, and the compensation awarded for the personal injury victim’s injuries.
Importantly, Texas courts have repeatedly stated that post-judgment interest is not intended to punish the party that caused a personal injury victim’s injuries; rather, post-judgment interest is intended to compensate the personal injury victim’s lost opportunity to invest and use their compensation after trial.
Calculating Post-judgment Interest in Texas Personal Injury Cases
Calculating post-judgment interests in an injury victim’s personal injury case is often a very difficult task. Before discussing how to calculate the post-judgment interest in your personal injury case, it’s important to note that the process can quickly become complicated and will likely benefit from the close scrutiny and analysis that can only be provided by an experienced personal injury attorney like ours.
When attaching post-judgment interest to your personal injury case, your attorney will apply the guidelines provided by the Texas Finance Code. Specifically, your attorney will apply the prime rate published by the Board of Governors of the Federal Reserve System, but they will adjust the prime rate to fit within the floor of 5% and ceiling of 15%. Your attorney will then apply the prime rate to your judgment, including prejudgment interest, court costs, and the compensation you’ve received for your injuries.
As you can see, calculating post-judgment interest in your personal injury case is an important and difficult process. Thankfully, our attorneys and staff are experienced in calculating and enforcing post-judgment interest against the party that caused your injuries. Our attorneys have made themselves available to provide a free consultation regarding your possible personal injury case any time, day or night.
Nominal Damages in a Personal Injury Case – Houston Personal Injury Lawyers
Filing a Lawsuit Based on Principle, for Nominal or Insignificant Damages Suffered
Simply put, nominal damages are damages that are very minuscule damages which are often mere dollars that are awarded when a wrong has occurred, but there is actually no financial loss. If the court awards you nominal damages you will typically only receive $1 or $2. Occasionally, the court may award you nominal damages, but set the amount at zero.
When you sue for nominal damages you are essentially filing a lawsuit based on principle. You believe that you have been wronged and deserve the vindication. Not every wrongful or negligent act results in a financial loss. But in order to file a valid lawsuit, you must have standing which means that you must have suffered an injury.
Typically, if you have not suffered a financial loss, then you would not have valid standing. Consequently, in order to file a claim and hold the defendant accountable for their actions you may file a suit based on nominal damages.
So Why Sue For Nominal Damages?
You obviously have to be wondering why anyone would go through a lawsuit to only be awarded $1 or $2. It almost seems silly to file a claim, hire a lawyer, and potentially spend months fighting the defendant in court when you would not receive any significant amount of money. So why sue?
Well, there are two strong reasons for filing a claim. First, the court might choose to award punitive damages. Punitive damages are awarded, not to compensate the plaintiff, but instead to punish the defendant.
Possible Punitive Damages
Although you may not need compensation for any actual injuries, you can benefit from suing the defendant through punitive damages. These type of damages may be awarded if the defendant was grossly negligent, intentionally disregarded the safety of the plaintiff, or intentionally hurt the plaintiff.
While you are not guaranteed to be awarded punitive damages when you file a suit based on nominal damages, this is a possibility. Furthermore, you should consider this potential award of damages when evaluating the legitimacy of your claim and deciding whether it is personally worth it to you to file suit.
Suing for Nominal Damages May Help Protect Your Rights
Finally, you might file a suit based on nominal damages because you believe your rights have been violated. For example, many people will sue the city or state when they believe that their constitutional rights have been violated.
In this scenario, they are very unlikely to be awarded any actual damages. However, they determine that filing a suit for nominal damages is worth of their time and effort in order to protect their personal rights or interests.
If you feel like you may need to file a lawsuit give us a call. We’re available day or night and the call is toll free.
One-Satisfaction Rule and Personal Injury – Houston Personal Injury Lawyers
What is the One-Satisfaction Rule and How Does it Apply to my Texas Personal Injury Case?
If you’ve been injured by someone else’s negligent or reckless conduct, you may have heard of the “one-satisfaction rule” and are curious how it might impact your case. Before diving into the intricacies of how the one-satisfaction rule applies to Texas’s personal injury laws, it’s important to note that the best way to ensure that the party that caused your injuries is held responsible is to retain an experienced personal injury attorney. Our attorneys have successfully represented personal injury victims like you for over 20 years, and may be able to put their experience to work for you by preventing the defendant from unfairly using the one-satisfaction rule to their advantage.
Texas’s personal injury laws are designed to prevent personal injury victims from being compensated twice for the same injury. In effect, a personal injury victim who successfully proves his case is required to elect between the awards he’s been granted for the same injury so that he doesn’t recover more than once. It’s important to note that the one-satisfaction rule’s application doesn’t depend on what a particular person did to cause your injuries; rather, its application depends on the particular injury you’ve sustained. The policy behind enforcing the one-satisfaction rule is to prevent a personal injury victim from receiving compensation in excess of the value of his injuries.
It’s important to note that the one-satisfaction rule applies in two situations: where multiple defendants cause a victim’s injuries by committing the same acts, or where defendants commit separate acts that result in the same injury. For example, the one-recovery rule will probably restrict a patient from recovering compensation from each surgeon that caused him to lose the function of his arm in a medical malpractice lawsuit, but will require that liability for your injury to be split equally between each of the surgeons. Similarly, the one-recover rule probably applies to a case where a patent losses the function of their arm due to both the manufacturer’s negligent construction and the installer’s negligent installation of a product.
However, it’s important to note that personal injury victims are entitled to elect the higher valued remedy for their injury, and aren’t required to make that election until they know what remedies will be awarded. For example, if your injuries could be compensated by a personal injury theory that only covers only your medical bills, or a personal injury theory that covers your medical bills and provides punitive damages against the defendant, you’re entitled to elect the theory that provides two types of recovery because it is more favorable. However, determining what theories apply to your case and convincing the defendant and the court that you deserve a heightened form of compensation is an extremely difficult task and requires the expert analysis of an experienced personal injury attorney. To ensure that you’re fully compensated for your injuries, you need an experienced personal injury attorney like ours on your side.
The One-Satisfaction Rule is Limited by the Collateral Source Rule
To further complicate matters, the one-satisfaction rule’s application is limited by the collateral source rule. Essentially, the collateral source rule prevents the party that caused your injuries from offsetting his liability by accounting for the insurance benefits you’ve received as a result of your injuries.
As you can see, determining if the one-satisfaction rule applies to your case can be difficult. If you’re a personal injury victim, it’s important that you retain an experienced personal injury attorney that will aggressively advocate on your behalf for the full value of the injuries you’ve suffered. Our attorneys are committed and are available any time, day or night, to provide a free consultation regarding your personal injuries case.
How a Release Works – Houston Personal Injury Lawyers
The Legal Ramifications of Signing a Release
In every personal injury case that we settle, our clients will eventually sign a release that will release the defendant from any future financial obligations. When properly evaluated and endorsed by your attorney, signing a release is a fairly innocuous event that should signify the conclusion to your former legal troubles.
However, for those that are not represented by an attorney, signing a release can in fact be the beginning of their legal troubles. In this article we explain precisely what a release is, consequences of signing, and common concerns that must be taken in to consideration before signing a release.
Dangers of Signing a Release
There are several concerns that must be addressed prior to signing a release and those who are not represented by a competent attorney can fall victim to these pitfalls.
1) Is The Release Equitable and Sufficient to Cover Your Costs?
When you sign a release, you are forever relinquishing your right to sue the defendant regarding this claim. Before making this exchange you should talk to an attorney to make sure it is a good idea to release the defendant from all future liability regarding this claim and that the settlement amount is enough to compensate you for your damages.
We have had clients who signed a release believing that it was equitable and sufficient to compensate them for their injuries. However, it was revealed that the injuries were worse than they appeared at first and that more money would be needed for the future medical expenses, but since the client signed the release they were not able to get compensation for these new injuries.
2) Who is Released?
Many times especially when dealing with insurance companies, an unrepresented client will be told that by signing a release they are only releasing some of the parties who are covered by the insurance policy from liability, and that they can still sue others beyond the limits of the policy.
In reality it is not always the case and by signing a release you give up rights. For instance, we had client whose husband was killed in a car accident and the defendant only had insurance coverage for $25,000. However, the man was also independently wealth. The woman settled and signed a release with the insurance company thinking that she was only releasing the insurance company but not the defendant. But when she attempted to file suit against defendant individually she discovered that the release she had signed not only released the insurance company but also the defendant.
3) Strategic Concerns
There are also some strategic concerns that must be addressed before signing a release. Imagine a pizza delivery crashes into your car. You settle with delivery driver through his personal insurance policy and the release does not bar you from filing suit against anyone else. However, in order to prove liability on the other parties involved you need testimony from the pizza delivery boy. But, since he is released from the suit, he is not required to testify in the case. Generally, it is in our client’s best interest not to settle immediately because of the blowback it can have on the big picture.
There are many other concerns with signing a release, but one important thing you need to understand is that releases are written to protect the defendant, not you, and unless you have a clear understanding of contract law, you are not going to completely understand it. That is where a lawyer comes in because signing a release is not a bad thing, as long as it is fair for both parties.
You Should Consult With an Experienced Attorney Before Signing a Release
Although it is usually alright to hear a settlement offer from an insurance company it is not a good idea to sign a release before you have consulted with an attorney. For example, imagine you are in a car accident and offered a settlement that seems fair to you so you sign a release.
Then, two weeks later, you discover that you are going to need surgery; at this point it is unlikely that you will be able to receive compensation for these new injuries.
However, our attorneys have been able to secure compensation for new injuries after the signing of a release. They were able to do this because they have over twenty years experience and know the ins and outs of dealing with insurance companies, and getting their clients the compensation that they deserve. Before you decide to sign a release you should call one of our attorneys for a free consultation.