Q.  I WAS INJURED. CAN I FILE A LAWSUIT AGAINST THE PARTY THAT CAUSED MY INJURY?

Q. HOW WILL MY CLAIM BE PROCESSED?

Q. WHO IS RESPONSIBLE WHEN A PERSON IS INJURED?

Q. HOW DO I DECIDE IF I NEED TO HIRE AN ATTORNEY?

Q. WHAT DAMAGES CAN I RECOVER?

Q. HOW LONG DO I HAVE TO HIRE AN ATTORNEY?

Q. HOW CAN I DETERMINE HOW MUCH MY CLAIM IS WORTH?

Q.  I THINK THERE WILL BE A LAWSUIT,  BUT I WOULD LIKE TO GET RID OF MY SON’S EFFECTS THAT WERE IN THE CRASH WITH HIM. IT’S JUST KILLING HIS MOTHER TO HAVE THEM AROUND.  IS IT OKAY TO DISPOSE OF THEM?

Q.  WHY SHOULDN’T I HANDLE MY OWN CLAIM?  THE FAULT IS CLEAR.  TO BE BLUNT, I DON’T TRUST ATTORNEYS AND I DON’T WANT TO HAND OVER PART OF MY SETTLEMENT.

Q.  I HAVE NO PROBLEM WITH ATTORNEYS, BUT IN MY CASE THE INSURANCE COMPANY IS OFFERING THE POLICY LIMITS. WHY SHOULDN’T I SETTLE AND SAVE THE ATTORNEY’S FEES?

Q.  THE FATAL ACCIDENT HAPPENED ON THE JOB. DO WE NEED TO DO ANYTHING BEYOND DEALING WITH THE WORKER’S COMPENSATION BENEFITS?

Q.  MY HUSBAND WAS KILLED IN AN AUTO ACCIDENT ONLY LAST WEEK AND TODAY AN INSURANCE ADJUSTER FROM THE OTHER DRIVER CALLED ME. SHOULD I TALK TO HIM SO I CAN MAKE A CLAIM?

Q.  I BELIEVE THAT MY WIFE DIED BECAUSE OF SOMEONE’S NEGLIGENCE. IS THERE A PROBLEM WITH HAVING A CREMATION?

Q.  THE INSURANCE ADJUSTER MADE ME AN OFFER, BUT HE SAID THAT IF I WAITED AND HIRED A ATTORNEY, THE OFFER MIGHT NOT STILL BE AVAILABLE, AND HE’S NOT SO SURE THERE IS COVERAGE.

Q. MY HUSBAND WAS KILLED IN AN AUTO ACCIDENT ONLY LAST WEEK AND TODAY AN INSURANCE ADJUSTER FROM THE OTHER DRIVER CALLED ME. SHOULD I TALK TO HIM SO I CAN MAKE A CLAIM?

A. My advice is “NO.” It may be true that he or she is only trying to get your claim handled and paid, since they know their insured was at fault.  Unfortunately, very often they are only trying to find a way to either escape any payment, or else to minimize your claim. They often ask questions designed to help THEM, not you. Since you probably have no idea what answers might hurt you, it is unwise to take a chance. Tell them to talk to your attorney. Then get one. The fact that he called you so soon after the death when you are emotionally vulnerable should tell you something about his  intentions.

Q. I BELIEVE THAT MY WIFE DIED BECAUSE OF SOMEONE’S NEGLIGENCE. IS THERE A PROBLEM WITH HAVING A CREMATION?

A. This is a sensitive issue. It involves your own feelings, the decedent’s wishes, social pressures,  and religious beliefs. What I can tell you is this: Whether the person at fault can be proved negligent is only one issue that affects whether you will recover compensation for the loss of your loved one. Another important issue is often overlooked: Was that negligence a cause of the death? It might well seem awfully clear to you that it was. Later on, someone with a million motives to escape responsibility might dig deep to try to suggest or prove that the person died from other causes or  would have died anyway.

Q. I THINK THERE WILL BE A LAWSUIT,  BUT I WOULD LIKE TO GET RID OF MY SON’S EFFECTS THAT WERE IN THE CRASH WITH HIM. IT’S JUST KILLING HIS MOTHER TO HAVE THEM AROUND.  IS IT OKAY TO DISPOSE OF THEM?

A. No. Don’t do that. In any unexpected death in which someone’s fault may have played a role, it is important to save everything that was involved in the circumstances of the death. If it was a car crash, save all the person’s clothing, the belongings in the car, and preserve the car itself until your attorney says it is okay to dispose of it.  A pair of broken eyeglasses might prove to be crucial to your case.  If it was a construction accident, preserve the decedent’s clothing and all his safety equipment, whether you think it was relevant or not. If you must move the personal effects, have a friend take them; rent storage; or take it promptly to your attorney.

Q. WHY SHOULDN’T I HANDLE MY OWN CLAIM?  THE FAULT IS CLEAR.  TO BE BLUNT, I DON’T TRUST ATTORNEYS AND I DON’T WANT TO HAND OVER PART OF MY SETTLEMENT.

A. You’ve certainly got a problem. You may not trust attorneys, but do you trust the insurance adjuster of the guy who killed your family member more? He has every motive to short change you. Your attorney will represent you on a contingency basis, meaning he gets paid if you get paid. If you get paid well, he gets paid well. Really now, don’t you think that if you interview five attorneys, you might just find one you can deal with?

   Let me ask you a different question. Do you know what a death claim is worth? Are you sure you aren’t about to settle yours for ¼ of what it’s worth? Are you sure that the adjuster isn’t just using “settlement discussions” with you to pump you for information that is damaging to the value of your case? Think over what the financial motivations are for the adverse insurance adjuster and for your own attorney.

Q. THE INSURANCE ADJUSTER MADE ME AN OFFER, BUT HE SAID THAT IF I WAITED AND HIRED A ATTORNEY, THE OFFER MIGHT NOT STILL BE AVAILABLE, AND HE’S NOT SO SURE THERE IS COVERAGE.

A. This is the strongest evidence that you have a good case, and the adjuster is afraid you will find out what it is worth. He is not your friend. He is your adversary.

Q. I HAVE NO PROBLEM WITH ATTORNEYS, BUT IN MY CASE THE INSURANCE COMPANY IS OFFERING THE POLICY LIMITS. WHY SHOULDN’T I SETTLE AND SAVE THE ATTORNEY’S FEES?

A. That’s the problem with handling your own claim when you are in emotional turmoil. Did you check the assets of the responsible individual whose insurance limits you want to accept? Do you know that you are not giving a full release for $50,000, and the party at fault is worth millions? Do you know whether or not there is someone else who is also at fault that you are ignoring or of whom you are even unaware? I have on occasion advised a prospective client in your situation that I thought I  probably could not do any  better and to accept. The good will I build is worth much more than the lost fee.

Q. THE FATAL ACCIDENT HAPPENED ON THE JOB. DO WE NEED TO DO ANYTHING BEYOND DEALING WITH THE WORKER’S COMPENSATION BENEFITS?

A. Quite possibly so. The employer may well pay the correct death benefits without your needing an attorney. That is well and good, but do not expect the employer to advise you that you might sue to collect further compensation to which you might be entitled. A worker’s compensation attorney may be assisting you, but he or she may or may not litigate fault-based lawsuits.  If you have any questions about whether someone at fault might be financially responsible for your loss other than the employer, it would be wise to consult an attorney who is knowledgeable about claims for negligently caused deaths.

Q.  I WAS INJURED. CAN I FILE A LAWSUIT AGAINST THE PARTY THAT CAUSED MY INJURY?

A. You can make a claim against another party if they are at fault for your injuries. In general, when a person is injured as a result of another person's negligence, the injured party may pursue a claim against the party or parties that caused the injuries. "Personal injury" is a term that encompasses claims by individuals for damages to their health, emotional well-being and reputation. You are entitled to compensation for your injuries if it is found that a defendant was negligent and that such negligence was a cause of your injury.

Whether or not you are entitled to compensation may depend on the type of accident that caused the injury.

For example, workplace injuries generally are covered by worker's compensation benefits, which compensate for medical expenses, lost wages, and impairments, without regard to fault by anyone. A claim can be made if the accident was caused by someone other than the employer or a co-worker.

Generally, people who operate motor vehicles must exercise reasonable care under the circumstances. Failure to use reasonable care is the basis for most lawsuits for damages caused by an automobile accident. In these cases, proof of fault is often contested and requires thorough investigation. A driver may also be liable for an accident caused by intentional or reckless conduct. A reckless driver is one who drives unsafely, with willful disregard for the probability that the driving may cause an accident.

If you were injured at someone else's home or at a commercial establishment, the person responsible for the premises may be found liable. You will need to prove that the injury was caused by an unsafe condition that the owner should have known of and corrected before the accident. In a typical slip and fall accident, the injured person must show that the person responsible for the premises was negligent in the design, construction or maintenance of the property.  If you are injured on a property covered by Wisconsin’s Safe Place Act, then you may have additional rights that an attorney can use to enhance your chances of recovery.

Claims for injuries caused by an unsafe condition on public property are subject to strict claims requirements and liability is only established in certain circumstances. For lawsuits brought against public entities, there are statutes which often require lawsuits be brought within a very short period of time, and only after written notice of the injury has been given to the government.  It is of the utmost importance to contact an attorney immediately in these type of circumstances so you do not forfeit your right to compensation.

Injury can result from defective products, as well. When a company designs and manufactures a product, they have a responsibility to ensure that anyone exercising reasonable care within the expected parameters of usage expected for the product will not be injured. In a product injury case, you do not have to prove the manufacturer was negligent. You only have to prove that the product was defective or that the manufacturer did not provide sufficient warning of potential risks or fail to provide adequate instructions. This concept is called strict product liability. A lawsuit can be brought against anyone participating in the chain of manufacture for that product, from the manufacturer, to the designer to the retail store.  In Wisconsin, your attorney must show that the product did not pass the Consumer Expectation test.

Injuries can occur in many other situations as well as those outlined above. Once again, you may have a claim if someone else was more at fault for your injury than you are.

Q. HOW WILL MY CLAIM BE PROCESSED?

A. If the person who caused your injury has insurance, an insurance adjuster will gather the pertinent records including medical records, medical bills, wage loss verification and the like in an effort to verify your damages. The insurance company may make you an offer to settle the claim. You may find the offer acceptable and once you accept it, the claim process is over. If you do not receive an acceptable offer, you can proceed with filing a lawsuit. Be careful when dealing with the other party's insurance company because they may try to rush you into a settlement before you can adequately evaluate the extent of your damages. If you are in an automobile

accident with an uninsured driver who is at fault, the uninsured motorist provisions of your own policy will apply.

You should be sure not to sign any documents without prior review by an attorney. You need to attend all scheduled doctor appointments in order to document your injuries. Accurate records should be kept of time you missed from work, medical bills, and property damage repairs. You can document your damages with photographs of your injuries or photos of property damage.

After a lawsuit has been filed, both parties will conduct discovery. Pretrial discovery usually takes about a full year during which time both parties investigate all aspects of the claim. This may include taking oral depositions, obtaining pertinent records, propounding interrogatories, and hiring expert witnesses to obtain more evidence about the claim. During this period of discovery and as the trial date approaches, the parties will exchange settlement offers/demands. A large majority of personal injury claims settle before trial. If you agree to accept a settlement, you will be required to sign an agreement stating you absolve the other party of all further liability in this case.

Q.  WHO IS RESPONSIBLE WHEN A PERSON IS INJURED?

A. The law of personal injury is concerned with determining who may be responsible for your injuries and how much they should be required to pay for your damages. Personal injury is part of the law of torts, the legal term that includes all types of injuries to people and their property. There are a number of principles that apply to the law of torts and personal injury. These principles recognize degrees of fault on the part of the person who causes the injury. In general, the degrees of fault can be described as negligence, intentional fault, and strict liability.

The term negligence is essential to tort law. Everyone is expected to take normal ordinary care to ensure that their action or the actions of others under their control, do not cause anyone harm. If they fall below that standard, and someone is injured or their property damaged, then they become negligent. Negligence does not mean that the person deliberately intended to cause harm; it only means that they did not take reasonable care or they did not act when any reasonable person would have. The degree of care varies with the circumstances of each case. A plaintiff likewise has a duty to exercise reasonable care under the circumstances on his own behalf.

Strict liability means that one does not have to prove negligence to recover damages. In the case of product liability, the law now holds that you do not have to prove the manufacturer was negligent if someone is injured while using a product. They only have to prove the product was defective when it left the hands of the particular seller and that was the proximate cause of the injuries. A lawsuit can be brought against anyone participating in the chain of manufacture for that product, from the manufacturer, to the designer to the retail store.

An "intentional tort" refers to a personal injury caused by a person who has the intent to cause harm. It may also refer to injury caused by willful or reckless conduct. Intentional torts include assault and battery, intentional infliction of emotional distress, libel and slander, etc.

There may be more than one cause of an injury. When the negligent conduct of two or more persons or negligent acts and a defective product contributes concurrently as causes of an injury, the conduct of each is a cause of the injury regardless of the extent to which each contributes to the injury. It is not a defense that the wrongful act of a person not joined as a party was also a cause of the injury.

Q. HOW DO I DECIDE IF I NEED TO HIRE AN ATTORNEY?

A. There are situations where an attorney is unnecessary, such as very small cases. Small claims court in Wisconsin will handle claims up to $5000. If your injury is a minor one that will not result in any incapacity, or substantial medical care, then you may want to settle it yourself in small claims court.

An attorney should be consulted if you have been seriously injured or are unsure as to the outcome of your injury. These cases can get quite complicated. In such cases, an attorney will have the legal expertise, time and resources to effectively handle your claim. An experienced personal injury attorney will be able to accurately analyze the value of your case and will be able to meet all of the rules, requirements and deadlines that have to be met. Also of note is the fact that statistics show insurance companies pay more than twice as much compensation when an attorney is involved in your claim.

Q. HOW LONG DO I HAVE TO HIRE AN ATTORNEY?

A. The law requires that you file a lawsuit within a specified period of time depending on the nature of the claim and the entity that caused your injury. This is referred to as the statute of limitations. Failure to file suit within this time frame prevents you from filing suit at all. In Wisconsin, an action for injury or death caused by the wrongful act or neglect of another must be filed within three years of the date of injury. The discovery rule provides that a suspicion of wrongdoing, coupled with knowledge of the harm and its cause will commence the limitation period. However, if your claim involves a government entity, these time periods could be drastically reduced if Notice of Claim or Injury is not provided to that entity within 120 days of the injury or death.

Q. WHAT DAMAGES CAN I RECOVER?

A. You can recover your actual economic losses such as the costs of reasonable and necessary medical care, property damage, car rental expenses, costs of domestic services, and loss of earnings. The law allows compensation for future medical and care expenses that the claimant can prove will be reasonably necessary to treat the injury. The claim may include income the claimant can prove will probably be lost in the future because of the injuries. Loss of earning capacity is also allowed when the patient proves he or she is less able to earn a living as a result of the injuries.

You are also entitled to non-economic damages for pain, suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life, loss of consortium, etc. There is no definite standard of calculating reasonable compensation for these type of damages other than being just and reasonable in light of the evidence.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. Family members can be compensated for the wrongful death of a loved one. These damages may include medical and burial expenses, loss of income that would have supported the family members, emotional suffering, and loss of the pleasures of the family relationship.

Punitive damages are intended to punish a defendant and are only awarded in rare cases. A plaintiff must prove by clear and convincing evidence that the defendant was guilty of oppression, fraud or malice. There are no fixed standards as to the amount of punitive damages a jury can award.

Q. HOW CAN I DETERMINE HOW MUCH MY CLAIM IS WORTH?

A. For purposes of settlement, a claim is valued upon an estimate of what a jury would likely believe the case to be worth, taking into account the severity of the injury, the effects of the injury on your life and the negligence of the other party. If you were partially at fault for the accident, the amount of damages will be reduced proportionately. Any settlement will be reduced if there appears to be a good chance that the claim will not be successful. Other factors that may reduce the damages include past medical history, pre-existing injuries, and prior claims history.

Considerable compensation may be commanded if your injuries are severe requiring extensive medical treatment, absences from work and permanent injuries. This is especially true if you were a healthy, productive, young worker prior to the accident. That is because an important factor in the value of your claim is the difference between your quality of life before the accident as compared to after the accident