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Is Your Case Worth Pursuing?Posted December 15, 2016
By Jonathan Karon
People ask me all the time whether they have a potential case or whether a case is worth pursuing. Some folks phrase it differently, asking me whether or not a case is legitimate. I suggest you apply what I call the “What the [expletive deleted]? test” If the story of what the potential defendant did makes you go “What the [expletive deleted] were they thinking”? then you may have a good case. Examples of cases I’ve handled that made normal people (i.e. non-lawyers) go “what the [expletive deleted] was the defendant thinking” have included a woman who was badly injured when she fell down stairs without handrails at the entrance to a business; a woman who was set on fire from the inside during surgery and a child who was badly injured when her hair got caught in the improperly guarded motor of an amusement ride. All of those injuries were easily preventable and made people ask what the defendant was thinking.
There is a more wonky, legal, answer, which is that the law says to win a personal injury case you must show that the defendant owed you a duty, usually meaning that the defendant was obligated to act reasonably; that they breached the duty, which the law calls “negligence” meaning that the defendant didn’t act like a reasonably careful person or company; and that the defendant’s negligence harmed you, which the law refers to as “causation”. You also have to show the extent of the harms and losses you suffered due to the defendant’s negligence, which the law calls “damages”.
But, eventually if you and the insurance company can’t agree, twelve people you’ve never met before will decide if you deserve to recover. In my experience, if what happened to you is likely to make them go “what the [expletive deleted] was the defendant thinking?” then they’re likely to find in your favor. If it doesn’t provoke that reaction, then you’ll probably have a tough time persuading them you deserve compensation.
All of this is, of course, just general guidance. There are special rules for certain types of cases like products liability and medical malpractice. Other cases may not make economic sense to pursue. The best way to determine if your case is worth pursuing is to call an experienced personal injury lawyer. Reputable personal injury attorneys will not charge just for discussing whether they can be of service. In a contingency fee case, personal injury attorneys only get paid if there is a recovery, and usually advance the costs of the case. So we have a strong incentive to only encourage potential clients to pursue “legitimate” cases.
I hope this is helpful if you ever need to determine if you have a potential case. I’d like to give a shout-out to my friend Michael Burstein, for suggesting this topic. Michael is an award winning science fiction writer and editor. (Science fiction fans are encouraged to visit his web site at http://www.mabfan.com.) He did not see this post in advance and bears no responsibility for any bad grammar or awkward prose. I’m always looking to make this blog as helpful as possible, so if there is a legal topic on which you’d like to see a blog post, please feel free to send me an e-mail by using the contact form on the website.
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