The law of personal injury is concerned with determining who, if anyone, may be responsible for an injury and how much they should pay to fairly compensate that person for their damages. There are many “causes of action” a person can assert against the party or parties that caused the damages, however, most of them are based in what is called negligence.

Every negligence claim includes four basic elements of proof: a legal duty, a breach of the duty, proximate cause, and damages. The defendant must have a legal duty toward the plaintiff. Legal duties can be based on common law or based on a statute. An example is failing to maintain a proper lookout (common law) versus yielding a right of way in an intersection (a statute) while driving a car. The defendant must have violated that legal duty, and the breach of the duty must have proximately (closely) caused the injury suffered by the plaintiff. For instance, a driver might violate a statute by driving without a license plate and registration, but that violation cannot be said to proximately cause a motor vehicle accident. On the other hand, driving while intoxicated could be a direct cause of an accident.

Everyone expected to exercise reasonable care to ensure that they act or refrain from acting in a manner to avoid injury to others. If that standard is violated and someone is injured, the person may be liable. The degree of care or legal duties to act or refrain from acting varies with the circumstances of each type of case. Everyone, including the person who was injured, has a duty to exercise reasonable care under the circumstances.

In my opinion, if you are injured as the result of another person’s negligence, you should strongly consider hiring an attorney. In minor injury cases, you may not need an attorney, but keep in mind that in even the smallest cases can have legal pitfalls that could jeopardize your case, and you will have to deal with an insurance adjuster whose job it is to settle the claim for as little as possible – and use every trick in the book to do it.

You should consult with an attorney if you have been seriously injured or are not sure about the severity of your injury – in which case the expert advice of an attorney and medical professional are vital. A personal injury attorney and medical experts will be able to assist you in determining the value of your case.

Personal injury attorneys will take a meritoius case on a contingency fee basis, which means that the attorney will receive a percentage (usually 33% or 40% if the case is filed or tried) of the settlement or judgment. The attorney will usually advance expenses include such things as medical records fees, filing fees, deposition fees, expert witness fees, and the like, and they are typically repaid back by the client if the client recovers. This way, a person injured by the negligence of another can hire an attorney with “no money down” and only incurs an attorney fee and pays for litigation expenses if the case is sucessful. 

You should consult with an attorney as soon as you are injured. Prompt legal advice is critical in making the important decisions that may affect the value of your case. Furthermore, the law requires that you file a lawsuit within a specified period of time depending on the nature of the claim, the status of the plaintiff (for instance, a minor)  and sometimes the person or entity (such as a governmental entity or a defendant absent from the jurisdcition) who caused your injury. This is known as “the statute of limitations.” If you do not file suit and serve process upon all potentially responsible defendants within this time frame, you will lose the case irregardless of the merit of your claim. In addition, there are various exceptions, special rules or other conditions that may apply to afftect your case, such as rules requiring you to present your claim in a specific time period or in a particular manner for claims against local, state or federal government. It is critical to consult with an attorney as quickly as possible to ensure you don't miss an important deadline.

A claim is valued upon an estimate of what a jury would believe the case is worth, taking into account the nature, severity, and duration of the injury, the effects of the injury on your life (such as loss of use of a function of one’s body or disfigurement) and the nature and extent of the negligent acts or omissions of the defendant. The value of the claim might be reduced by many things, including the degree of fault attributed to the plaintiff, the likelihood of the plaintiff being success at proving each element of the cause of action, pre­existing injuries, and the credibility of witnesses.

Normally, the plaintiff can recover costs for reasonable and necessary medical care in the past or future, lost earnings and loss of earning capacity, physical pain and suffering, mental anguish, physical impairment (loss of use of bodily function), physical disfigurement (scars, burns, etc.), property damage or diminution of value, rental car expenses, various out of pocket expenses, loss of consortium (disruption of your personal relationship with your spouse, child, parent).

Sometimes a person is injured in such a manner (or killed) and the law may permit family members to recover the dmages described above plus damages for the loss of the consortium, household services, companionship and society of the relationship as well as the medical and/or burial expenses, lost income or inheritance.

Punitive or exemplary damages are intended to punish a defendant for reckless or malicious (intentional) conduct. There are significant limitations on punitive damages in Texas.

Many cases are settled out of court without the filing of a lawsuit. However, sometimes it is necessary to litigate the case where there are disagreements about who caused or contributed to the incident and/or the severity of the injuries.

After a lawsuit has been filed, both parties will conduct discovery. Discovery is a process that involves requests for information by one party and responses from the other party. This allows the parties to the lawsuit to acquire full information about the issues and facts involved in the lawsuit and prevents trial by ambush. Pretrial discovery can take a number of months to complete. Typically this involves oral depositions (testimony), requesting records by subpoena, exchanging interrogatories (written questions), requests for production of documents, and hiring expert witnesses to assist with trial preparation or to testify as an expert witness. Often times the parties will agree to mediate the case in an attempt to settle the case prior to trial. If the case does not settle prior to trial, then it is heard by a jury of twelve persons, typically in a District Court in the county where the incident occurred. 


The Law Office of Brian Baker
Phone (512) 392 - 2300
San Marcos Texas