How To Identify A Good Personal Injury Case

from November 2021 Tulsa Lawyer Magazine

2nd Annual Juvenile Law Day CLE December 8, 2021

By W. Chad McLain, Graves McLain, PLLC

At some point in your career you, will be contacted by a potential client that thinks they have a personal injury case. If you have never handled a personal injury case, hopefully this article will give you some information on how to identify a good personal injury case and how to best takecareofyour potentialclient.Potentialpersonal injury cases show up with an array of facts and different size damage models. These potential cases should be evaluated on a risk v. reward continuum.

The most common personal injury case is a motor vehicleaccident(“MVA”).ApotentialMVAcaseshould be assessed through a few lenses to determine if you can help the potential client. You first must determine whether you can show that the potential client was not at fault, or at least not the main cause of the MVA. Next, you must determine the nature and extent of the potential client’s injuries, if any, caused by the MVA. Most people over the age of 25 have some form of preexisting injury or condition that can muddy the water on whether you can show that the MVAcaused the injuries claimed. The last main area of inquiry is whether there is applicable insurance coverage to cover the damages caused by the MVA. All too often we see MVAs that result in serious injuries or death with little to no coverage available to compensate the victim or their family. MVAs involving commercial vehicles require the same assessment generally, but are very complex, costly and require a level of knowledge and skill that takes time and focus to learn. If your potential MVA involves a commercial vehicle you should contact an experienced personal injury attorney to assist you in your assessment and handling of the case. Your ability to properly assess the complex issues and preserve evidence early is the difference in success and failure.

These very general tips are not to say that a great MVA case won’t have something wrong with it - questionable liability, damages, coverage, or all three. Many of the MVA cases that we’ve achieved the greatest results on have had one of these issues, but the other factors were still able to make the case work – corporate defendants, aggravated liability, catastrophic injuries, etc.

Potential premises liability cases, such as trip and falls and dog attacks, are the next most common types of personal injury cases. In a premises case, the victim must show that they were injured as a result of a hidden dangerous condition that the landowner knew or should have known about and did not repair or warn the victim about. In addition, the landowner may be liable if it can be shown that the landowner had control of the instrumentality that caused the injury. Premises cases are vigorously defended on liability asserting that the “hidden danger” was open and obvious (i.e., the injured party should have seen what caused them to fall.) Premises case command severe injuries to justify the time and resources associated with prosecuting them. You need to carefully assess the nature and extent of the potential client’s injuries prior to agreeing to take on such a case.

In dog attack cases, the injuries are not the primary focus as they are often severe and disfiguring. The main question in these types of cases is whether you can prove that the dog owner is responsible for injuries sustained. There are essentially two main theories of liability – statutory strict liability and common law negligence. Strict liability will apply when the attack occurs within city limits, and does not require that you prove the owner knew his dog had bitten before, just that your potential client did not provoke the attack. When the attack occurs outside city limits, common law negligence will apply requiring that you prove that the owner knew the dog had bitten before your potential client’s attack. This theory of recovery is a lot harder to prove and will likely require a lawsuit to conduct discovery.

When you get a call on a potential medical negligence case you should always be very careful in your evaluation. These cases are complex, financially demanding, and generally take years to resolve. To handle a medical case properly, you will need to have a thorough knowledgeofmedicineoraccesstoaconsultingmedicalprofessional to assist in your assessment. You must prove that the healthcare provider’s act or omission fell below the accepted standard of care. This must be proven through expert testimony. You also must prove that the damages were caused by a breach in that standard of care. Medical cases are vigorously defended from beginning to end. In almost all instances, a medical case must involve a death or serious permanent injury to justify the resources spent to bring a case to successful resolution. However, there are some good medical cases that do not involve a death or serious permanent injury. Very few medical cases resolve for a just amount without litigation. This means that the case needs to be prepared as if the case were going to be tried from the moment the client hires you.

The last main category of potential personal injury cases involve defective drugs, devices, and products. Most of the time, these types of cases a re handled in a centralized litigation proceeding. They are a mass tort, which means that a large number of people suffered the same or similar harm from the same drug, device, or product. For example, a defective hip implant that prematurely wears out, a pesticide that caused cancer, or a heartburn medication that causes cancer. Each of these types of cases has a very specific case criteria that is determined mostly by medical literature. The most efficient way to find out if there is litigation involving a certain drug or device is to contact an attorney that regularly handles mass tort cases. We have a list of these types of cases that are viable and that we are currently handling.

Remember that 100% of our practice at Graves McLain is devoted to handling all types of personal injury cases. Most of our cases are referred to us by lawyers and other professionals in our community. If you have what is or might be a personal injury case, call us any time. We welcome opportunities to co-counsel with other attorneys, and we pay referral fees in accordance with the Oklahoma rules of professional responsibility. Please contact us to answer questions about your next potential personal injury case.

Thank you for all who participated in Eat Out for a Cause~ Aug. 24th

The event raised $620 and the TCBA Community Outreach Committee contributed $550 for a total of $1,170 that was presented to Food on the Move thanks to KEO's generosity and your participation!