As a personal injury lawyer, the first question I hear from potential clients is, “Do I have a case?” My stock answer is that anybody can file a lawsuit; the question is whether you can win the lawsuit and collect a judgment. I am writing this blog for the benefit of all potential personal injury plaintiffs who would like some guideance to determine whether a case is worth pursuing. To be worth pursuing, a personal injury case must satisfy five elements: (1) Negligence, (2) Damages, (3) Causation, (4) Credibility, and (5) Money.

The first element of a personal injury case is negligence. In order to successfully prosecute a personal injury claim, the claimant must prove that the defendant committed negligence. Negligence is acting without reasonable care, or failing to act as a reasonably careful person or entity would under like circumstances. For instance, a rear end collision automobile accident case is a typical personal injury case. A motor vehicle is recognized by Florida courts as a dangerous instrumentality. Because driving a vehicle is inherently dangerous, reasonably careful people pay attention to the vehicles in front of them when they drive. When a person takes her attention off the road, she is failing to act as a reasonably careful person would act, and is therefore guilty of negligence. The more egregious the negligence, the more valuable the case. Failure to pay attention to the roadway is not as egregious as driving intoxicated. For this reason, a case involving an intoxicated defendant is almost always more valuable than a case involving a lapse in attention. Establishing the knowledge base of the defendant is a good way to show the egregiousness of the defendant’s negligence, even in a simple lapse of attention case. In a motor vehicle accident case, for instance, a good personal injury attorney will establish the rules of the road, prove through deposition testimony that the defendant knew the rules, establish that the defendant knew the importance of the rules, establish that the defendant knew that breaking the rules was dangerous, and prove that despite knowing the importance of the rules the defendant broke the rules anyway.

I’m litigating a case right now where an amusement park ride operator failed to strap my 13 year old client properly into an amusement park ride. My client slipped out of her seat and hit her head, suffering brain damage. I knew that the ride operator was careless when strapping her into her seat, but I also knew that the ride operator would deny being careless. The ride operator didn’t specifically remember my client, so he couldn’t testify about his actions on the date of the incident. However, he could testify about how he always operates the ride. In other words, I anticipated he would say that he was sure he didn’t fail to properly strap her into her seat because he always straps his patrons in tightly. So, I put the ride operator under surveillance and caught him on video breaking several rules related to the operation of that particular ride. I took his deposition and asked several questions about the rules of operating the ride, the importance of those rules, why the rules are important, and why it’s dangerous not to follow the rules. The ride operator described the rules in detail and why they were important, and stated passionately that he never breaks the rules. I then showed him the video surveillance of him breaking the rules, and his deposition was done. So was his credibility, and his defense.

The second element of a personal injury case is damages. The plaintiff must prove that he suffered an injury. Damages can include economic losses, such as medical bills or lost wages, or mileage expenses from traveling back and forth to medical visits. If an injured plaintiff has to hire somebody to do his yard work or clean his house, he can claim those expenses as part of his damages. He can also include non-economic losses, such as pain, suffering, inconvenience, lost capacity for the enjoyment of life, mental anguish, and other intangible losses. In Florida autmobile accident cases, the plaintiff must prove that he sustained a permanent injury, death, or significant scarring in order to obtain compensation for his non-economic losses such as pain and suffering. Obviously, cases involving severe injuries are worth more than cases involving minor injuries, assuming all other factors are equal. If the defendant’s negligence is questionable, the case is probably worth pursuing only if the injuries are relatively severe.

The next element that I look for when evaluating a personal injury case is causation. The plaintiff must prove that the defendant’s negligence caused the injury the defendant is suffering. This is often more difficult than it seems. In medical malpractice cases, for example, lack of causation is a common defense. Even when the negligence and damages seem obvious, doctors will claim that their negligence didn’t cause the damages. For instance, we once had a case where the doctor operated on the wrong foot. Nobody denied this. We sent a notice of intent to file a lawsuit, which is required under the Florida Medical Malpractice Act, and the defendant doctor filed an denial stating that although he operated on the wrong foot, he actually did the plaintiff a favor because when he opened her up and started the surgery he found that the plaintiff needed surgery on that foot anyway! Incredible.

The next element that I look for when evaluating a personal injury case is the credibility of the plaintiff. A case with all of the elements of a good lawsuit is worthless if the plaintiff can’t be honest. The credibility of the plaintiff is often the most important element of a case. Juries won’t award money to a liar. If the plaintiff appears truthful and tells me up front about all the warts of the case, I am more likely to take the case, because I hope that truthfulness will continue throughout the representation. When my client is truthful about the case, warts and all, I can prepare for any defenses that arise as a result of the cases’ warts. I’ve lost trials before because my client wasn’t completely honest. On at least one of those occasions, if my client had been honest initially, the subject that she lied about would have been a non-issue.

I once had a client who suffered carpal tunnel syndrome as a result of a motor vehicle accident. She had a strong case on negligence and damages, because she had carpal tunnel surgery to repair the injury. Surgical cases are generally more valuable than non-surgical cases. At her deposition, the defense attorney asked her if she was unable to do certain activities with her hand. She said she could barely move her hand. The defense attorney asked if she could turn a key in a lock, spray a spray bottle, or carry groceries, and she said she could not. Unknown to her, the defendant had already placed her under surveillance, and had video footage of her carrying groceries out to her car, unlocking her trunk with her injured hand, and taking a spray bottle out of her trunk, and spraying her tires, using her injured hand. If she had simply told the truth, i.e. that she could do all those activities without a problem, she would have had a valuable case.

The last element I look for in evaluating a personal injury case is money. Although nobody likes to admit it, a personal injury case is about the money. First, I look for insurance coverage that can pay for the plaintiff’s losses. If no insurance coverage exists, I do an assets check to see if the defendant has assets. If the defendant has no insurance and no assets, the case is probably not worth pursuing. The economic reality is that a personal injury case costs time and money to pursue. The last case I tried was a bench trial for a default judgment (the most simple case possible with no defense attorney), and I spent more than $2,000. My partners and I tried a medical malpractice case last year that cost almost $200,000 to prosecute.

Bottom line, if your claim has all these elements: negligence, damages, causation, credibility, and money, you probably have a viable personal injury case.

Jimmy Fasig