San Diego Personal Injury Attorney Arnold Hernandez

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What Is Personal Injury Law All About

            The goals of personal injury law are to compensate persons that have suffered a loss or harm as a result of another persons wrongful conduct; to place the cost of compensation on those that should bear the cost from a just perspective and lastly to prevent future harm and future loss.  The concept of tort law which is primarily personal injury goes back to biblical times.  It is not a new invention and even though big business and the insurance industry have labeled tort law and especially personal injury as some sort of an evil, it is not something new and it is actually exactly the opposite.  Personal injury is intended to compensate a person that suffered a harm as a result of another’s wrongful conduct.  The personal injury victim suffers an actual harm for which compensation should be paid.

            Tort law which includes personal injury law is an area of law which is heavily impacted by social theory.  Personal injury and tort law are intended to bring about desirable social results.  There are many conflicting interests in personal injury law for which all seek protection under personal injury law.  One of these interests that personal injury law seeks to address is people’s desires to feel secure against personal injury, harm and interference with their freedom to move about freely and with peace of mind.  People want a right to have things and to feel free to acquire and use things.  The list of wants is long and at the same time there are instances when people want to do as they please without restraint or regard for the interests or claims of others.  This where there is conflict, where some believe they should be able to drive at any speed after having consumed several alcoholic beverages.  Personal injury law attempts to weight the interests of the various parties by weighing the interests for which the personal injury claimant demands protection verses the interests of the defendant’s claim to freedom in furtherance of his own desires and the importance of those desires.   This weighing of interests has changed personal injury laws and the way we live which has resulted in such laws as having to wear helmets when riding a motorcycle and having to wear a seatbelt when we are in a vehicle.

            In ancient times personal injury was treated differently and even though it is subject to debate and interpretation there is surely some sort of a compensation system to compensate victims that have suffered personal injury.  The Bible for example has many commandments, which is essentially law, which addresses crimes, customs, and compensation and punishment for those that injure their fellow human being.  For example:

EXODUS 21

19 If he rise again, and walk abroad upon his staff, then shall he that smote him be quit: only he shall pay for the loss of his time, and shall cause him to be thoroughly healed.

32 If the ox shall push a manservant or a maidservant; he shall give unto their master thirty shekels of silver, and the ox shall be stoned.

EXODUS 22

5 If a man shall cause a field or vineyard to be eaten, and shall put in his beast, and shall feed in another man's field; of the best of his own field, and of the best of his own vineyard, shall he make restitution.

            So the notion personal injury compensation and exemplary damages in personal injury claims goes back to biblical times.  It is really not a new concept or one invented by modern day attorneys.  Big business and insurance companies have a very real thing to gain by characterizing personal injury as something evil,  but the idea has been around since Biblical times and it has stayed with us for the very reason that personal injury compensation purports to make a person whole again after an injust act by another.  Despite the fact that personal injury attorneys are often viewed as evil, in many instances their intent is actually noble.  This is not consistently true of very single personal injury attorney, but many personal attorneys and the vast majority of personal injury attorneys seek redress for the wrongful conduct that injures an innocent person.  Personal injury law work to bring about some form of justice.  Personal injury attorneys often get a bad reputation for no real reason, other than the public’s perception of greed.  The reality is that there is a lot of risk taking by personal injury attorneys and it is not unusual for personal injury attorneys to earn very little or nothing on some years.  There are times when things go well for personal injury attorneys and this makes up for other years.  More often than not personal injury attorneys offer other legal services where fees are charged up front to make up for the poor compensation results often obtained from representing personal injury victims.

            Our laws could be rewritten so a quicker compensation system could be implemented and eliminate the need for litigation and in fact some states have attempted such schemes with no fault laws and some with large medical insurance policies.  California for the most part has adhered to traditional personal injury law where the tort feasor (wrongdoer) is held accountable.  There was a major change in California which impacted some people and which made the law much more fair in addressing personal injury claims.  California implemented a law which basically requires that a personal injury claim be reduced to what are called economic damages.  Economic damages are damages which most people readily understand and believe are fair compensation.  These are the harms suffered by the personal injury claimant for wages lost, medical bills, and property damage.  The other part of damages is the lesser known harm that is compensable in California, this is pain and suffering.  In some instances the idea seems absurd, but in some instances it is clearly fair.  In some instances where there are very severe injuries, such as sever burns of the body, there is no justice or fairness in a personal injury claim, because there are no deep pockets to compensate the victim.  It is not unusual for a personal injury victim to discover that the defendant has no insurance or only a $15,000 insurance policy and the personal injury victim has incurred a $300,000 hospital bill.  In fact hospitals routinely bill personal injury victims more than other patients, especially if the patient has no medical insurance.  The idea is to take as much of the possible recovery as possible.  There are instances where personal injury victims are billed $20,000 for a single hospital visit that may last four hours. 

            Even though there are man myths traveling through society suggesting that a personal injury claim is the next best thing to winning the lottery, the reality is that a few persons get slightly more compensation that they deserve usually one to two thousand dollars.   A few persons however get nothing regardless of how severe the injuries may have been.  The personal injury victim is victimized a second time, because the law is not perfect and the system is not perfect.  Science and medicine likewise generally do not support the personal injury claimant, because there is little or nothing to gain in developing or researching the consequences of suffering a personal injury event.  Insurance companies and big business do spend some money investing in pseudo science research projects, these projects are flawed and designed to deceive juries.  Judges can see the flaws and routinely reject testimony from these pseudo scientists, but that is not always the case and personal injury victims are often victimized a second time.

            Some jurisdictions give personal injury claimants a fair shake, but in most instances only sever injury victims are awarded adequate recoveries.  A factor that most jurors do not take into consideration is that there is an enormous amount of money spent on experts.  It is not unusual for a trial to cost hundreds of thousand of dollars in expert expenses.  The jury is never aware of these costs and does not realize that the personal injury claimant is not going to get even half of the award.  In most instances the personal injury attorney invests his life savings in the case to pay these experts, which include biomechanical engineers, accident reconstructionists, economists, orthopaedists, surgeons, medical doctors, physical therapists, and many others.  Sometimes personal injury attorneys lose their life savings and their homes advancing the interests of the personal injury victim.  This happens when the jury returns a verdict in favor of the defendant.  It does not happen very often, but it does happen.    There is also a tool available to attorneys that basically says that if a party rejects the offer made and the jury does not return a more fovarable verdict, then the personal injury claimant is responsible not only for his own expert costs, but those costs of the other party.  So even if a jury verdict seems fair, it sometimes is a few dollars short sometimes as little as $1 of justice.  What happens in these situations is that the plaintiff is left with nothing, the plaintiff’s attorney receives nothing, and the defendant pays nothing !  In some cases the personal injury claimant ends up owing tens of thousands of dollars to the defendant.  The legal system for personal injury claims is actually very risky business for personal injury attorneys and personal injury claimants.  

            Worst of all the legal system is secretive, even though anyone can ask a personal injury attorney about these laws, chances are a jury is not going to find out about it or know about it.   Juries are often remorseful and feel awful when they discover that by not awarding any money, that the personal injury victim  now has to declare bankruptcy because of a $5,000 bill for costs to be paid to the wrong doer.  Defense attorneys are paid by the insurance companies and big business to defend cases and they take great pride in their victories, but occassionally they feel remorse as well when they know they have ruined a life, even though their own client has admitted to the wrongdoing and often under the influence of alcohol or drugs.

            Juries are not allowed to know a lot of things about case, simply because that is how the law is written and that is how the law works.  A jury will never know if the personal injury victim had health insurance nor no insurance and the jury will never know if the defendant had insurance or no insurance.  In the vast majority of cases the defendant had insurance or worked for a large company.  Personal injury attorneys are the good guys, but are portrayed by big business as the root of all evil.  Personal injury attorneys do what they do, because they know they are on the right side, even though they know they are not liked by the public.  Some personal injury attorneys are rewarded well for their work, but it is not unusual for a personal injury attorney to become a millionaire and lose it all on one trial.  The vast majority of personal injury attorneys hope for a good year and the day mar or may not come.    Many personal injury attorneys handle other types of cases, because almost every single personal injury attorney works on a contingency basis.  They don’t get paid until they actually get a recovery for the personal injury claimant.  Some members of the public do not recognize the significance of this and cannot appreciate how good the legal system works and how much personal injury attorneys contribute to society, until they have to hire an attorney for another matter such as a divorce.  Divorce attorneys charge as much as $500 an hour and more, ironically most personal attorneys cannot afford a divorce attorney.  Clients sought out by divorce attorneys are actually medical doctors, pilots, big business managers and executives.  These are typical clients with the ability to pay for a divorce attorney.  The same is true of other areas of law, unlike a personal injury attorney, a consultation can cost as much as $500.  A personal injury consultation is free or could be had free with one or  two phone calls. 

            Fairness and justice is really a matter of what a community believes in.  It is for this reason that big business has been advocating tort reform.  Tort reform is really an attempt to make the rules more favorable to big business, it is an attempt to change our community.  It is all about profit, not costs, not what is in the public interest, but profit.  It is an effort to convince the public that personal injury attorneys and personal injury victims are getting rich and causing everything to go up in price.  The reality is different, in fact, few personal injury victims ever recover large sums of money, and when get a large verdict they are routinely appealed.  On appeal large verdicts are likewise routinely reduced and sometimes the person dies without ever seeing a dime.  In California personal injury defense attorneys have actually lost their jobs, because the number of personal injury lawsuits has dropped.  Many personal injury defense firms and many insurance defense attorney firms have cut back or closed down.  Salaries for personal injury defense attorneys have been among the lowest, because there is less demand than other areas of practice.  The California Courts also have been recording the number of personal injury lawsuits for many years and there is a clear downward trend.  Unfortunately no one tells the public what is going on, they just advocate tort reform, a reduction in personal injury rights and compensation. 

             Personal injury law attempts to be fair and just, by imposing liability on the tort feasor, the wrongdoer.  Basically it is accepted that if you break a window you should pay for it, not the community, and not the owner of the window.  This is what personal injury law is all about, you break him, you pay to fix him and put him back to where he should have been. Where people have problems is with the concept of pain and suffering.  Pain is a very real experience, but philosophically to some it may be an illusion.  To others their own religious philosophy may dictate that it is a “so what situation,” it is what God intended, it is God’s will that a child should have suffered burns throughout his body, or that single mother should be left homeless, because her leg was crushed and had to be hospitalized for a month.  In many instances a juror will share his view of the world and be excused from hearing the personal injury claim, but often they do not share or are not asked, and when it comes time to decide the vote against any type of compensation.  This is when the legal system breaks down, despite the jury instructions, which is the law, jurors will ignore the law.

            Personal injury claims as all legal claims are really the same as a recipe.  The personal injury claimant has to prove several elements to make his case.  The standard of proof is actually a very light one, unlike a criminal case, the standard of proof is called the preponderance of the evidence.  You take your scales of justice and you put a feather, or a grain of salt and you have the standard.  It just has to be slight more than the other side.  If this standard has been met, the personal injury claimant should win.  Most jurors do not understand the standard, even when it is explained to them, and make up their own standard in their mind, but when they adhere to the law the standard is so slight that most personal injury claimants should win. 

            Personal injury claims require fault on the part of the defendant, it is not enough that the defendant caused the injury.  In personal injury law fault is conduct that is intentional or risky, such that a reasonably prudent person would know is dangerous and will lead to injury.   A person can be at fault for unknowingly creating an unnecessary or unreasonable risk, if in hindsight it can be said that it was going to lead to such risk. 

            Personal injury law developed as result of many other factors as well.  The courts looked at economic efficiencies, vicarious liability, economic benefit, consent, the personal injury claimant’s actions, and other factors.  American personal injury law or the idea of tort law originated in England.   Laws in former English colonies are very often similar to our own, because they all have elements of English law.   We are mostly familiar with personal injury claims, but the area of personal injury law arises from tort law.  The term tort means wrong and it is an ancient word.  Personal injury and tort law are concerned with civil wrongs for which there would be no remedy under contract or criminal law. 

            In early English days the response to a harm was similar to the commandments in the Bible.  When one person was injured by another, there was retaliation intended to cause equal harm.  English law then started to evolve where monetary compensation was to be agreed between the parties. An idea that to some extent is still practice today in personal injury claims.  In modern day personal injury attorneys often deal with the insurance representative or claims manager in attempting to resolve personal injury claims between them.   As the law continued to evolve it became more harsh, because  the personal injury claimant had a form of trial and if the plaintiff won a fixed sum was paid, and when the defendant could not pay he was punished.  Around 1066 a court system was established which heard personal injury cases.