Your sister slipped and fell while shopping on Santana Row, injuring her arm and shoulder. Your dad was walking in Kelley Park when he was bitten by a dog and had to get stitches. Or maybe you were involved in a car accident while driving on 280 and suffered whiplash. Personal injuries can happen anywhere, at anytime, and can be upsetting for everyone involved. Trying to navigate through a lawsuit while you are recovering can be confusing and overwhelming, so we've collected some basic information here to help make sense of your San Jose personal injury case.
For a general overview, you may wish to start by checking out the FindLaw section on Accident & Injury Law. Then return here for information specific to Santa Clara County.
The first and most important thing to do after an injury is to attend to any medical needs. However, before leaving the scene, if you are able, it is a good idea to collect some basic information regarding the incident. This can include getting the names and contact information of any witnesses, taking photographs of the scene and injuries, preserving any evidence, and jotting down notes about what happened.
Typically, you will be dealing with insurance companies in the aftermath of a personal injury. For an overview on Insurance Claims After An Accident, check out this FindLaw article. In some cases, personal injury claims are resolved with insurance companies directly to everyone's satisfaction. However, if you run into an issue, such as an improper denial or delay of settling a claim, and wish to file a complaint, you may do so through the California Department of Insurance.
Filing A Lawsuit
You may find that you wish to pursue legal action after your personal injury. If you decide to do so, bear in mind that there are timeframes within which you must bring your suit or be forever barred from doing so. These are called Statutes of Limitations and vary by state and cause of action. In San Jose and the rest of California for a personal injury claim you generally have 2 years.
A personal injury is a civil (as opposed to a criminal) action and you will likely bring your case in the civil division of the Santa Clara Superior Court. If the amount you are seeking in damages (monetary compensation) is $10,000 or less you can bring your lawsuit in the Small Claims Division.
The initial court papers you will file will include the "Complaint" which will identify the parties, give a brief outline of the facts surrounding the accident and your legal claims and ask for the court's assistance. The defendant will then have the opportunity to file a response to the complaint (an "Answer") in which he may even assert claims against you ("counterclaims").
As the case progresses, you will exchange information with the other side through the discovery process, which will generally include depositions (sworn statements), interrogatories (questions) and the production of documents.
Proving Your Case/Negligence
Typically in a personal injury action you (the plaintiff) allege that the other party (the defendant) acted negligently. To act negligently is essentially to act carelessly and for that carelessness to cause or contribute to the accident.
In many cases, both parties act negligently â€“ what happens then? In some states, under the contributory negligence theory, if you are even 1% at fault you are barred from any recovery. Fortunately, California follows the pure comparative negligence theory, which allows recovery even if you are 99% responsible, although your recovery will be reduced in proportion to your fault. So, for example, if you were claiming $10,000 in damages and you were 50% responsible, you would still be able to pursue your claim for the $50,000 (50%) that was not your fault.
What Damages Are Available
In a personal injury case you will generally seek economic recovery to compensate for the effects of the injury. This can include the tangible "economic" damages such as medical expenses (both past and future), lost wages (both past and future), and out of pocket costs, as well as the intangible "noneconomic" damages such as pain and suffering and mental anguish.
For more information on damages, check out this FindLaw article on Economic Recovery for Accidents and Injuries.
Depending on the extent of your injuries, it is recommended that you at least consult with a personal injury lawyer to assess your case. In most cases, injury attorneys will offer a free initial consultation and if you decide to work together will proceed on a "contingency fee" basis, which means that his fees will be paid out of your recovery. A skilled legal professional can help maximize your settlement or verdict, has experience with insurance companies, and can help sort through all the administrative red-tape. Check out this FindLaw section for more information on Using a Personal Injury Lawyer.
Contact a qualified attorney.