Personal injury plaintiffs usually bring lawsuits that turn on a defendant’s negligence. Generally, the plaintiff must prove the following elements of negligence by a preponderance of the evidence: the defendant’s duty, the defendant’s breach of duty, actual and proximate cause, and damages. The elements can vary somewhat based on the situation that gave rise to the negligence. Whether a personal injury case arises out of premises liability, product defects, medical malpractice, or a car accident, the nature and severity of the injuries is what determines the value of the case.

Personal injury lawsuits can arise from many types of injuries, including:

• Brain Injury
• Broken/Fractured Bones
• Burn Injury
• Catastrophic Injury
• Drowning
• Electrocution
• Fire/Burn Injury
• Spinal Cord/Back Injury
• Loss of Limb
• Scarring/Disfigurement
• Paralysis

The Relationship Between Injuries and Damages

In general, a plaintiff’s attorney will present the plaintiff’s testimony, as well as the testimony of a treating doctor or other expert, to discuss the nature and severity of the plaintiff’s injuries. Often, the past and future medical bills associated with the injuries are not the full extent of the damages available to address them.

For example, when a patient suffers paralysis in a truck accident, he or she may sue the truck driver and the trucking company. At trial, the victim may testify primarily as to pain and suffering and loss of enjoyment of life. However, he or she may also present a treating physician to testify as to the cause of the paralysis, objective findings, and the extent to which this kind of paralysis typically limits patients’ lives. He may need to present expert testimony from a vocational rehabilitation expert to show that he or she will no longer be able to work and will require household services that would not otherwise be needed. The expert will present evidence quantifying these future losses.

To counter the extent of the damages claimed by the plaintiff, the defense attorney will try to minimize the injuries suffered. Generally, the defendant will need to retain one or more experts, including a vocational rehabilitation expert, to respond to the plaintiff’s claim of damages. This expert may testify that the plaintiff can work and that the other expert is wrong, or he or she may testify that the plaintiff cannot work in the same capacity, but is qualified to work in other jobs that pay a similar amount and have job openings. Often, the defense will attack the plaintiff’s credibility not only as to the events that gave rise to the injuries, but also regarding the extent to which the plaintiff is limited by them.

Insurance companies that insure defendants in various types of claims retain investigators to look into suspicious claims of injuries and to conduct surveillance on the plaintiff. In general, as long as the investigation takes place in public places or online in spaces where there is no reasonable expectation of privacy, evidence from these investigations can be used to discredit plaintiffs.

One common error in judgment made by plaintiffs is to post pictures or status updates on Facebook or other social media. A prudent defendant’s investigator will use any public information to show that a plaintiff is exaggerating his or her injuries. For example, a plaintiff in a motorcycle accident who claims back injuries from a car accident, but posts status updates about extreme sports events and hiking, may expose himself to being discredited at deposition or in front of a jury about the extent of his back injuries.

Last updated April 2018