Personal injury settlements are based on facts. Feelings can be facts if the feelings are part of an injury (emotional distress, anguish, or suffering caused by physical harm), but simply feeling that an injury deserves substantial compensation isn't enough to assure that substantial compensation will be paid. Facts need to be proved, either to the satisfaction of an insurance company or to a jury.
Injury victims need to assemble facts to make a personal injury claim and settle their own case. It helps to have a personal injury lawyer who understands how to investigate a claim and how to gather and present the facts in a way that will lead to a favorable settlement or verdict.
Proof of Liability
Nearly all personal injury claims start with proof that another person's carelessness contributed to the injury. There are limited exceptions to that rule when the law imposes strict liability (in California, dog bite injuries and some injuries caused by dangerous products are examples of cases governed by strict liability), but most personal injury cases require proof that another party was negligent.
Sometimes negligence is clear. If an injury victim was rear-ended while waiting for a red light to change, there's no question that the driver of the moving car was negligent and that his or her negligence caused the accident.
In other cases, negligence is disputed. For example, a head-on collision might occur near the centerline of a highway. After the dust settles, each driver might claim that the other driver crossed the centerline. Cars usually travel a significant distance after a head-on collision at highway speeds. In the absence of a neutral witness, it may be difficult to prove which driver was at fault.
In those cases, assuming the cost is justified by the probable recovery of compensation, a personal injury lawyer will hire an accident reconstruction engineer to investigate the collision. By examining the scene (including gouge marks in the highway), inspecting damage to each car, and viewing photographs and diagrams made by investigating police officers, the engineer can provide evidence about the location of the accident. When that evidence shows that the other driver was at fault, the expert can supply the crucial proof needed to bring a successful personal injury claim.
Proof of Injuries
At trial, injuries are proved through the testimony of doctors. Since most cases settle before trial, however, lawyers rely on medical records to document those injuries. Gathering a complete set of health care records, including hospital records, clinic records, specialist consultations, and physical therapy records, is an essential part of bringing a personal injury claim.
When records are not complete, a personal injury lawyer may suggest that the accident victim obtain additional evaluations. For example, if it is difficult to drive because a victim cannot look over her shoulder without pain, a lawyer may want the victim to obtain range-of-motion testing to document the victim's limitations. Other tests may be needed to document ongoing pain and disabilities.
Proof of Losses
Physical injuries lead to two kinds of losses: financial and non financial. Evidence of both is necessary to pursue a successful personal injury claim.
To obtain proof of financial injuries, the injury victim will need to gather evidence of lost wages, medical bills, and related expenditures (such as the cost of crutches). An injury victim's lawyer will often have the victim sign releases so that the lawyer can obtain that information directly from each source.
Non financial injuries include pain and suffering, emotional distress, and loss of enjoyment of life. Non financial injuries cannot be quantified. Doctors may be able to state that a patient is continuing to experience pain, and sophisticated testing (such as an MRI) might substantiate pain, but there is no scientific test that objectively measures pain.
Proving the extent of pain and suffering depends in large part on testimony given by the victim and by people who know the victim. In some cases, that testimony may be supplemented by pictures or video evidence. Personal injury lawyers gather all necessary evidence of pain and suffering in preparation for making a personal injury claim.