FAQ's

What is the difference between the "burden of proof" in a civil case and a criminal case?

The requirement of what a party must prove in a case is referred to as the "burden of proof". The burden of proof is essentially the standard where a jury or other finder of fact, determines whether or not a party wins its case. Black's Law Dictionary defines "Burden of Proof" as follows "In the law of evidence, the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a case. The obligation of a party to establish by evidence the requisite degree of belief concerning a fact in the mind of a trier of fact or the court." A jury, or other finder of fact (in the event the court itself is acting as fact finder, without a jury), weighs the evidence presented in a trial, and decides whether or not the party with the burden of proving its case has met that burden. This is the determinative question as to who wins a trial.

The burden of proof in a civil matter is quite different that the burden of proof in a criminal matter. The Judicial Council of California has approved Civil Jury Instructions, known as "CACI", which instruct California Civil juries on areas of the law. California Civil Jury Instruction Number 200 ("Obligation to Prove - More Likely True Than Not True") explains the burden of proof in a California Civil matter. "More Likely True Than Not True" can be further explained as "more than fifty percent (50%)", or "tipping the scales of justice ever so slightly". The distinction between the burden of proof in a civil matter and a criminal matter is very important, as in a criminal matter, the prosecution must prove the guilt of a defendant "beyond a reasonable doubt". Appreciating the differing burdens of proof in a civil and criminal context is essential, as the standard is far higher to prove someone committed a crime than it is to prove someone is guilty of a civil wrong, even if based upon the same conduct.

Do I have a case to recover damages for my injuries?

When you have been injured as a result of someone else's wrongdoing, or if a loved one is killed, you may be entitled to sue the responsible party in court to recover damages. Although a majority of these kinds of cases are filed in a state court, depending on the circumstances, the lawsuit may be filed in a federal court.

Frequently, the cases that seek recovery for injuries and damages suffered due to someone else’s fault involve negligence. When making a claim for negligence, a party alleges that another party (a person, a business, a governmental entity, for example) has breached the duty of care which they owed (acted negligently) and as a result they were injured.

Personal injury law encompasses a broad range of cases, often lawsuits are filed when injuries have been suffered in an automobile accident, slip-and-fall accidents, medical malpractice, defective products or while on someone else’s premises. It is wise to consult with an experienced injury attorney to advise you on your rights, and to represent you in the process, to ensure you or your loved ones get the justice they deserve.

What is Negligence?

Negligence is an area of tort law. A “tort” is a civil wrongdoing, as opposed to a criminal wrongdoing, and in the civil context, the wrongdoer will not face criminal punishment. Instead, an injured person may file a lawsuit to seek compensation for damages they’ve suffered due to someone else’s fault.

Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. A party may be negligent if they act unreasonably, or fall below the “standard of care”, in a given situation—such as driving too fast or failing to keep their restaurant floors free from tripping hazards.

To prove negligence in California, a person must show that they were owed a duty of care, that the duty was breached or violated, and that the breach was the cause of the person’s damages, including injuries.

What sort of damages may I be entitled to if I was injured by someone else?

A person injured because of the fault of some other person, or another party (business entity, governmental entity, municipality, etc.), is entitled to economic damages, as well as non-economic damages, based upon what they are able to prove.

Economic damages may include past and future medical expenses, past and future lost earnings or wages, a loss of earning capacity, and the loss, destruction or damage to personal property, as well as the loss of use of personal property. The Judicial Council of California set forth Civil Jury Instructions (“CACI” Jury Instructions), which are intended to accurately state the existing law in the State of California. The Jury Instruction that addressees past and future medical expenses as damage, CACI Jury Instruction 3903A, for example, requires an injured person to prove the reasonable cost of future medical expenses that they are reasonably certain to need in the future, in order to be compensated for those damages at a trial. To recover damages for a loss of earning capacity, or the loss of the ability to earn money, California law and CACI Jury Instruction 3903D require a person to show the reasonable value of the loss to that person, though it is not necessary that the person have a work history. California law also provides for the recovery of damages for the loss of the ability to provide household services. Though household services are generally provided without being paid for, the law recognizes that those services have value, as well. Parties bringing a case based in wrongful death may also seek economic damages for the loss of the financial support provided by the decedent, as well as funeral and burial expense, and the reasonable value of the household services that can no longer be provided.

Non-economic damages include includes physical pain, suffering, loss of the enjoyment of life, mental anguish and mental suffering, inconvenience, physical disfigurement, grief, anxiety, physical impairment and emotional distress. In cases involving a wrongful death, a party bringing a claim on behalf of a loved one may seek damages for the loss of love, loss of training and guidance, and the loss of companionship, comfort, care, society, protection, affection and moral support. California juries are generally instructed to use their best judgment in deciding a reasonable amount of money to compensate for these damages, and that the amount should be based upon the evidence presented and upon common sense.

What is the value of my injury case?

Most people who have been injured due to the fault of another want to know what the value of their personal injury case is, and in many instances, before they decide if they will hire a lawyer to help them. While it is not always easy to determine an injured person’s economic damages, it is conceptually easier to assign a dollar figure to economic damages than non-economic damages. What becomes challenging is determining what price to put on the “priceless”. How can the loss of a limb, a permanent injury, or a facial scar, for example, be adequately compensated with money? That is ultimately up to California juries, who can be guided by good lawyers, and of course, varies from case to case. Insurance companies often use computer programs to enter data such as the type of injury, the cost of the injured person's medical expenses, the amount of wage loss (time missed from work due to an injury), the person's age, the location of the accident, and other factors that the insurance industry compiles to defend claims made by injured people. The reality is that California juries, however, do not use a formula or equation to determine how much an injured person should be compensated. In fact, CACI Jury Instruction 3905A (approved by the Judicial Council of California) advises a jury that when determining non-economic damages, no fixed standard exists for deciding the amount, and that a reasonable amount must be determined based upon good judgment and common sense.

A skilled lawyer can help a jury understand the facts of a particular case, and apply money damages to the non-economic damages, which can vary greatly. In determining the pre-trial settlement value of an injured person’s claim, insurance companies and lawyers often try to determine what a jury might award, should a case proceed to trial. An experienced attorney can not only persuade a jury of the value of their client’s injury case, but can also persuade an insurance company to offer the highest amount of money possible to settle a case before a court or jury trial.

Should I file a personal injury lawsuit after my car accident?

Many personal injury lawsuits involve automobile accidents. Automobile accidents, including truck accidents, bus accidents, commercial vehicles, and motorcycles, are the basis of a significant amount of lawsuits in which claims of negligence are based.

A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence.

When a vehicle operator causes another driver, passenger, cyclist, or pedestrian to become injured, he or she can be sued in court. While some drivers who cause others to suffer injury may be impaired by alcohol or drugs, or may be distracted by cell phone usage, texting, or other distractions, it is not necessary to prove this condition in order to show the driver was negligent.

As always, it is best to consult with a personal injury attorney to discuss your circumstances. If you have a valid legal claim, there are economic and non-economic damages you may be entitled to recover, either in court, or from an out-of-court settlement.

Do I have a case for medical malpractice?

Medical errors are a specific type of legal claim where a patient (or their family) claims that a medical professional did not do what they were supposed to, and fell below the applicable “standard of care.” In the event medical malpractice occurs, lawsuits may be filed and claims may be made against physicians, nurses, pharmacists, surgeons, hospitals, and other healthcare providers. This can include performing surgery on a wrong part, administering the wrong type of medication dosage, or failing to diagnose a condition in a timely manner. A medical professional can provide an opinion as to what the appropriate standard of care was in a given medical situation, so it can be determined if the health care provider in question deviated from that standard of care. Exact results cannot always be predicted in the field of medicine and health care, generally. If it can be shown that a health care provider did not do what they were supposed to, and that a patient suffered an injury or damages as a result, the person can pursue a claim based in medical malpractice, and should immediately contact a medical malpractice attorney to evaluate the case.

What do I do if my insurance company is not cooperating after I was hurt?

Insurance companies are involved in most personal injury lawsuits. In California, for example, all drivers of motor vehicles are required to have liability insurance, which is supposed to cover damages suffered by someone injured by that driver. Insurance companies do not always do the right thing in dealing with an injured person, however, and may engage in behavior and tactics designed to take advantage of an injured person. Many insurance companies try to “low ball” their settlement claims under the assumption that the individual will not seek out legal help, and never learn that they are being taken advantage of. In addition to being treated unfairly by someone else’s insurance company, injured people may find that their own insurance company is failing to pay their claims, failing to provide a legal defense, failing to reasonably authorize medical treatment, or failing to pay for property damage that is covered by an insurance policy. In order to get the compensation you or your loved one deserves, it is important to seek the advice of a lawyer with experience in dealing with insurance companies.

Greg Brod has experience in proving non-economic damages, and in persuading insurance companies of the high value of his clients' cases

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