MG Law 2 8/9/21 – Personal Injury – gtg

What Does Preponderance of Evidence Mean in a Texas Civil Lawsuit?

In Texas personal injury civil suits, the burden of proof rests on the victim. This means that it is the responsibility of the plaintiff’s legal representation to prove that the defendant was a cause or contributing factor to the accident that caused the victim to suffer a personal injury resulting in some type of financial loss, like medical bills or lost wages. The standard of proof that must be met in civil court is known as preponderance of evidence, which is different from the standard of proof that is required in a criminal case.

Most people are familiar with the phrase “beyond a reasonable doubt.” This phrase is used when describing the amount of evidence that must be accrued in order to convict a criminal. A plaintiff’s lawyer in a criminal case must be able to prove that the defendant was guilty “beyond a reasonable doubt.” However, the standard of proof in civil cases like personal injury lawsuits is lower. The guilt of an accused party is based on the preponderance of evidence. Essentially, the preponderance of evidence means that a defendant is more likely guilty of an act than they are innocent, based on the evidence at hand. The type of evidence provided or the amount of evidence gathered is not relevant; however, the way that evidence works to convince a judge or jury of the likely guilt of a defendant in a civil suit is what matters. Preponderance of evidence can be based on a robust set of evidence that provides a broad outline of a defendant’s likely guilt, or it can be based on one single, yet vitally important factor involved in the accident causing injury or death. If a jury or judge believes a defendant’s story is likely false based on preponderance of evidence, and the plaintiff’s story is likely true, and the plaintiff likely deserves to be compensated, then preponderance of evidence is said to have been met.

Even though the standard of proof in civil action cases in Texas is less strict than that required in criminal cases, it is still a standard of proof, which means that evidence must be obtained so that a judge or jury can base their decision on a preponderance of the evidence. With 20 years of experience in civil law in Texas and throughout the country, the Texas personal injury attorneys at our Law Office can help investigate your accident claim in order to gather relevant evidence and pertinent testimony so that a robust case can be built on your behalf. Should you have reason to seek legal action against a liable party for an injury or loss you’ve sustained as a result of their negligent behavior, consider contacting our Texas accident injury lawyers.

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Searching for Law Firms? Our Law Office Can Help You

Our Law Office helps injury victims, survivors of family members killed in an accident, and families of people who have incurred serious personal injuries. Our firm can help you wade through the legal process so that you can focus your energy on recovering from the accident and getting your life back on track.

With two decades of experience in handling personal injury cases, the lawyers with our Law Office have a reputation for successfully fighting for the rights of their clients and winning thousands of cases involving personal injury. There is a good chance we can help you as well.

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What is Subrogation?
Texas Personal Injury Lawyer Explains the Process of Subrogation

You may have heard the term subrogation and wondered what it meant. Sounds like something out of a spy movie, but the reality of subrogation has nothing to do with subterfuge. Subrogation is the process in which one insurance company receives recompense from another insurance company for funds spent related to a loss for its insured customer.

Commonly, people mistakenly believe that subrogation enables the injured victim to receive greater compensation, but that’s not the case. Subrogation doesn’t benefit or harm the injured party. It’s merely a means by which the insurance company can recoup expenses in relation to the victim’s loss.

Some people hold the misconception that subrogation is a means by which an injured party can receive just compensation through his or her own insurance carrier. That’s not the case either. Your insurance carrier has no more interest in helping you than the insurance company for the party who injured you does. The only way to get just compensation is to hire an experienced attorney to look out for your rights.

The Subrogation Process
Normally, the subrogation process follows one of two patterns:

An insurance carrier believes that another entity will have to repay them in the long run, so they will “front” for an expense and then subrogate to the other party for reimbursement.
An insurance carrier will think that it needs to pay for damages incurred by an injured party, only to discover at a later date that another party was negligent and should have paid the money, so they will subrogate to attain reimbursement.
While personal injury is likely new to you, chances are you’ve had to deal with car insurance. To illustrate the first example of subrogation: when you have an accident and your auto insurance policy pays for damage to your vehicle and a rental car as soon as the accident occurs even when the other party is at a fault. The other party’s auto insurance may take weeks to admit fault and pay for your damaged vehicle. In the meantime, how are you supposed to get around? Sometimes, your insurance company might even pay for repairs and then subrogate this expense to the other insurance company after the fact. The same principle holds true with a work-related injury. Often, your health insurance carrier will pay for medical bills, knowing that it can subrogate to the workman’s compensation policy when the time comes.

Our Law Firm has been fighting for victims` rights for over 20 years. Call today to discuss your case.

The second example of subrogation can be illustrated by looking at a case where an insurance company is unaware that another party is liable for an accident, or in some cases, that another liable party even existed. Recently, our firm won a convoluted work injury case in which the injured victim was working for a temp agency. He was placed with another company where he was injured. The company that was borrowing the worker didn’t have workers’ compensation insurance, but the temp agency did. The temp agency acted responsibly and paid the worker to the tune of a six-figure settlement. However, our investigations later revealed that the other company was liable, and the workmen’s compensation insurer for the temp agency was able to subrogate the settlement against the liable party they previously didn’t know existed.

In most cases, subrogation neither hurts nor helps an accident victim. It’s just a way by which insurance companies divert the expense of paying benefits between each other. The only way an accident victim can be further victimized by subrogation is when he or she falsely concludes that they don’t need to consult with a lawyer because their needs are being met by subrogation.

If you’ve suffered a personal injury, and you have more questions about subrogation, call our Law Office today for a free consultation.

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Your Duty to Mitigate Damages
Attorney Discusses A Victim’s Legal Duty to Mitigate Damages

The duty to mitigate damages may be a foreign phrase to you, but it’s an important concept to understand if you’ve been injured as a result of the negligent behavior of another person. When broken down into its parts, the phrase is easily understood. Duty means that a victim has a responsibility. Mitigate means to lessen. Damages, in the legal realm, refers to the financial losses that accompany an injury, such as medical bills or lost wages.

Together, a duty to mitigate damages means that an injured victim has a responsibility to lessen the amount of financial losses they sustain as a result of an injury. Such responsibility means that the victim must seek out proper medical attention within a reasonable amount of time after suffering an injury.

As an example of a victim failing to mitigate damages, consider Craig’s plight. Craig’s construction site co-worker accidentally cut Craig’s hand with a saw while the two were working to erect a new building. Craig did not think the injury to be serious, so he continued working. After a week, the injury had become noticeably worse, but Craig didn’t want to take time off from work. Another week passes and the hand has become discolored. Craig is in immense pain, so he finally sees a doctor, only to learn that the injury has become infected and he must endure an amputation. In such a dire instance, Craig would not be able to pursue legal action against a liable party for the full extent of his injuries since he did not take reasonable measures to seek medical help. In other words, he failed at his duty to mitigate damages.

The Notion of Reasonable Care in Regards to Mitigating Damages
Texas personal injury law does not require that a victim take unreasonable steps in the aftermath of sustaining an injury. For example, Craig would not have been required to seal himself off in a sterile room until his injury was healed as that would be considered an unreasonable effort. However, the law does state that reasonable steps must be taken by an injured victim in order to minimize the extent of their sustained injury.

Working to ensure that your injuries do not worsen is vitally important for two reasons: your health and your possible personal injury case. If you’ve been in any type of accident that may have resulted in an injury, it’s in your best interests to be checked out by a medical professional as soon as possible after the accident. Some injuries may not be readily apparent at an accident site, or even in the hours after an accident has occurred. Furthermore, some injuries can take weeks or months to develop. By getting checked out by a medical professional as soon as possible, you can work to ensure that a more serious condition does not develop in the future. Your health, after all, should never be risked by simply choosing not to seek proper medical attention.

Furthermore, should you desire to seek compensation for your injury from the parties responsible for causing it, you will have a legal duty to mitigate damages. If your injuries are allowed to progress to a poor state due to failure to seek medical attention, the amount of compensation you could receive from a liable party could be drastically reduced. If a jury is able to assess you with more than 50% liability for your injury, recovery of fair compensation may be completely denied. In these instances, a defense attorney is tasked with the burden of proof. In other words, this affirmative defense means that the defendant’s legal representation must be able to prove that you failed at your duty to mitigate damages. By seeking proper medical attention after an accident, such a claim cannot then be brought against you.

If you’ve suffered an injury due to the negligent behavior of another person or entity, be sure to seek medical help within a reasonable amount of time. Often, seeking medical attention as soon as possible is in your best interests. Should you have questions regarding your duty to mitigate damages so that your right to seek compensation is preserved, contact the attorneys at our Law Office today.

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What, Exactly is a “Personal Injury?”
In legal parlance, a “personal injury” is the physical pain and associated mental or emotional trauma resulting from the actions or inactions of another party or of multiple parties. The person who suffered the injury, also referred to as the plaintiff, can try and obtain compensation for the injury he or she suffered from the responsible party or parties, known as the defendant.

The basis of all personal injury laws in the State of Texas is the Texas Civil Practices and Remedies Code. You will not be able to find any portion of the code that states defendants owe a single thing to plaintiffs. The code only gives a plaintiff the right to try and obtain restitution from the party or parties that caused injury to the plaintiff in order to make the plaintiff whole again.

You can buy a ticket to a concert that gives you the right to watch the concert. But that ticket doesn’t mean that a musician will be coming to your home to perform. Personal injury law follows a similar principle. Defendants are neither required nor expected to, out of the goodness of their hearts, offer you restitution. You, the plaintiff, have to take your request for payment to the defendant, oftentimes eventually to court, just like you have to take your ticket to the concert.

There is only one way you can obtain the compensation you are seeking from the defendant, and that is to prove that defendant was the sole proximate cause of the injury you suffered. In legal terms, the plaintiff carries the burden of proof. Unless you satisfy the requirements of that burden, you have no chance of getting the fair restitution you are looking for.

Do You Have a Case?
The term “duty” is a significant one to understand regarding any potential legal action involving your personal injury case. The law in the State of Texas, as in most states, says that every person owes every other person a legal duty to act as a reasonable person would in making sure they bring no harm to anyone. In other words, say you’re heading down I-35. You are expected and required by law, to safely follow traffic rules and drive in a manner that is safe for all the other motorists around you. Should you choose not to obey those rules and drive recklessly – even for a minute – and injure someone in an accident as a result, you are said to have breached your duty. You will be considered legally liable for the medical expenses and other financial burdens incurred by the injured party. If someone caused your personal injury by neglecting his or her legal duty to you, then you should have the basis of a lawsuit.

Again, though, in order for any attorney to be able to successfully pursue a personal injury claim on your behalf, you, the plaintiff, carry the burden of proof needed to demonstrate you were owed a legal duty of care by the defendant, and the defendant shirked that duty. As a result, you suffered an injury. The type of legal duty owed to you can vary depending on the context of the case and the type of party involved. The standard of care that one motorist owes to another differs significantly from the standard of care a doctor owes to a patient. It all depends on the situation surrounding the incident in question, and the intentions of those involved. For instance, a surgeon is, obviously, within his or her standard of care when working on a patient. However, if that doctor breaks into the patient’s home and stabs that patient with a steak knife, the doctor has then violated a legal duty. The two situations, from a legal standpoint, are different, even though the surgeon is performing the same action of cutting into his or her patient. Whether or not the surgeon has violated a legal duty is determined by the situation, context, and intentions surrounding his or her actions.

It is simple for any lawyer to prove obvious breaches of a legal duty that cause a personal injury. However, proving the sometimes vague notion of negligence can be much more difficult.

Take the example of a construction company employee who suffers a concussion after a co-worker accidentally hits him on the head with a two-by-four. The employer in this instance could be held partially liable because it has the legal duty to provide employees with a safe workplace. However, if the person suffering the injury was a contractor and not an employee, then the employer would not be legally responsible. In Texas, contractors are responsible for their own workplace safety; the employer carries no expectation of providing a safe work environment to a contractor or temporary worker. This is another case of context determining liability.

It is imperative that you seek the help of a lawyer to determine whether or not the specific context of your personal injury case allows you to seek the recovery of damages.

Three Elements Necessary for a Successful Personal Injury Case
In order for a personal injury case to have a chance at succeeding, it has to have three main components: liability as to the result of the defendant violating a legal duty, such as negligence, damages, and a solvent and identifiable defendant. This is true in just about every personal injury case; there are almost no exceptions. The following sections go into these three components in detail.

Liability
When a defendant shirks a legal duty he or she owes to a plaintiff, then that defendant, in the eyes of the law, is liable for any damages that the plaintiff has incurred. Most of the time, a defendant is in violation of this legal duty through standard negligence, which is the temporary occurrence of recklessness or carelessness that causes an accident. It’s the most common form of negligence; basically, it’s caused by someone simply not paying attention at a certain time. That differs greatly from gross negligence, which is when a defendant causes harm to a plaintiff – even though accidentally – by engaging in blatantly reckless behavior not of a temporary nature. For example, someone who gets behind the wheel while drunk and causes an accident that results in an injury to someone else can be considered grossly negligent. Even though that driver didn’t mean to hurt anyone, that doesn’t matter. He or she was still drunk, and as a result, was grossly negligent. Then there is the most severe of breaches of legal duty, the commission of a deliberate or intentional act that harms another, such as assault with a deadly weapon. Negligence is the most common of all liable acts, but you must prove that the defendant breached a legal duty, and your injury occurred as a result, in order to obtain compensation.

Damages
“Damages” can often be a confusing legal term. A lot of people think the term refers to the actual injury suffered by the plaintiff. In reality, though, “damages” is the monetary value assigned to not only the injury but also all its associated repercussions. A fractured skull, for example, is an injury. A damaging injury for sure, but legally it’s defined as an injury. The resulting medical bills, lost work salary, and lost future earning potential incurred by the victim due to the injury are damages. There are two kinds of damages to explore further: general damages and special damages.

General damages – These are non-financial, subjective damages that, by nature, are open to interpretation by lawyers, judges, and juries. Because they are subjective, you have to account for all of them and prove them so that you can get the maximum amount of compensation possible. These damages include physical impairment, pain and suffering, loss of consortium of a spouse/loss of unique familial love with a family member, emotional suffering, and disfigurement.

Again, since general damages are subjective in nature, it can be very difficult to not only assign a monetary value to them but also to prove them. The amount given for these kinds of damages can vary widely from case to case, even when two cases have similar circumstances surrounding them.

Consider the example of a fireman sprinting into a burning house to save a child. Let’s say the ceiling caves in, and both the fireman and child are severely burned as a result. They have suffered the same kind of injury, but the damages they can pursue are significantly different. The fireman experienced fear when the ceiling caved in, but not to the extent of the child. The fireman has undergone extensive training in learning how to deal with this kind of stress and has probably encountered similar situations in the past due to the nature of his job. The child, though, had never experienced anything like that fire and was terrorized by it. The fireman is also familiar with the kind of injury that he suffered, by either experiencing it himself in a previous fire or witnessing other firemen being burned. The child, on the other hand, had no such familiarity with burning and could have thought he was going to die.

Because the circumstances surrounding all personal injury cases can differ significantly, you should seek the help of a seasoned lawyer who can ensure that the value of the general damages surrounding your case is accurately determined.

Special Damages
These damages, unlike general damages, are typically tangible. Most often they are easily determined, but there are other times where they can still be somewhat subjective. Let’s look once again at the example of the fireman. He suffered serious injuries, injuries that might not allow him to ever work in that profession, or any other profession, for that matter, again. How do you determine the damages in this instance? It’s not enough to simply count the number of years he could reasonably have been expected to work, multiply that by his present salary, and ascertain the potential earnings he has lost. You have to take into account changes in his salary that may have occurred due to promotions, any specialized education courses he may have taken, and inflation. And experienced lawyers know how to do this.

Special damages include:

Court costs
Damage to property
Past and future medical bills
Lost wages
Lost earning potential
Special damages are especially crucial for most plaintiffs because there are many times where they include already paid for medical or other expenses, plus wages that have already disappeared. They need to recover these damages as quickly as they possibly can in order to be able to get their lives back on track.

Solvency
The last element you must meet in order to successfully pursue your personal injury claim is solvency. You must file your claim against a defendant who has the monetary means needed to compensate you for any damages he or she caused. Let’s say a homeless man runs into traffic and causes a driver to veer off the road and crash into a convenience store. The driver suffers two broken legs as a result of the crash. There’s no doubt that the homeless man is liable for the crash and the injury, but he is not solvent, so it really won’t matter. The homeless man doesn’t have enough money to provide the plaintiff with just restitution. This happens all too often to injury victims.

Knowing that solvency is a key to a plaintiff winning a personal injury lawsuit, many defendants will plead poverty in order to sidestep liability. This is yet another reason you need an experienced lawyer on your side. Many defendants will attempt to hide their money and feign being destitute in an attempt to avoid being held liable. But the personal injury attorneys at our Law Office are very adept at finding any money or assets that the defendant might be hiding. We typically run an asset check on every defendant, and we have a strong track record of unearthing assets that solvent defendants tried to conceal in order to avoid liability.

It is incredibly imperative that all damages are properly ascertained because you only get one chance to recover them in court. The personal injury lawyers at our Law Office know how to account for a plaintiff’s damages; we do so by putting together an itemized list and putting that list into a demand packet that is then given to the defendant or the defendant’s insurance company, along with the compensation that is expected to be awarded to the plaintiff.

You Need a Lawyer. Here’s Why.
Contrary to popular belief, the law in the State of Texas does not ensure that an injured party will receive just restitution. A lot of people do not realize this until after they have been injured in an accident. As we noted previously, the Texas Civil Practices and Remedies Code only gives an accident victim an opportunity to pursue compensation – that’s all. The victim, or plaintiff, bears the burden of proof in establishing that the negligence of the responsible party caused the injury. To accomplish this, the plaintiff needs to prove that, in all likelihood, that the plaintiff’s injuries were the proximate result of the actions of the defendant. This is a concept known as “preponderance of evidence,” and the plaintiff does not need to prove anything “beyond a reasonable doubt,” as is required in cases of a criminal nature.

NEVER Try and Pursue Litigation Yourself
It takes a lot more than just a cursory acquaintance with legal statutes to prove damages, establish liability, and do all the other things it takes to win a personal injury lawsuit. Knowledge alone won’t bring success, despite what most people may believe. It actually only comprises a fraction of the expertise needed for success. The vast majority of the time, cases are won as a result of effective strategy and intimate knowledge of court procedure in order to properly determine damages, prove that a defendant’s negligence caused the plaintiff’s injury, and successfully swing a judge or jury in favor of the plaintiff.

If you think you can win a case on your own armed only with information culled from a Google search, go for it. You’ll not only be laughed out of court, but you’ll also leave that courtroom with nothing more than you entered it with. It could prove to be the worst mistake you ever make. When you lose, you won’t get a do-over. And all those medical expenses that have been piling up, and will continue to pile up if your injury is severe enough? You’ll be on the hook for all of them. Those lost wages and that loss of potential future earnings? You’ll never see them.

You’d be surprised how many people make the incredible mistake of trying to represent themselves in this kind of case. Then they turn to a lawyer after ruining their claim. An insurance company adjuster might have tricked them into thinking he or she was on the victim’s side, while all along the adjustor was gathering the evidence necessary to kill the claim. By the time the victim knows what’s happening the insurance company has either offered a woefully inadequate settlement or denied the claim flat out. Then and only then will that victim decide to hire a lawyer, but it’s too late. Clarence Darrow couldn’t save that victim’s lawsuit.

The one thing that insurance companies fear is a personal injury attorney with a track record of winning. The Texas Rangers wouldn’t fear taking on the Texas High School JV baseball team, right? It’s the same principle when considering how an insurance company feels about taking on a non-attorney or novice lawyer. If they see you sitting at the negotiating table alone, they’ll laugh and then proceed to play you like a fiddle. These insurance pros know how easy it is to confuse laymen and inexperienced attorneys. Think you can respond to a motion of summary judgment? Know how to answer an interrogatory? Known what to do in order to respond to a countersuit?

No? Then please call an experienced attorney. You’ll have no shot at winning without one.

Your Case is Important to Us
The personal injury attorneys with our Law Office have been successfully litigating personal injury cases for two decades. We know how much you’re suffering due to your injury, and how critical your case is. If you or a loved one has been injured in an accident due to the negligence of someone else, please call us toll-free for a confidential and free consultation. We’ll tell you what kind of case you may have, and how we can help you get the fair restitution you have coming to you.

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