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Jerry Pearson Aug. 18, 2020

Here is an overview.

First...What is a personal injury claim? I’d like to break it down into three specific elements.

Wikipedia would simply tell you “personal injury is a legal term for an injury to the body, mind or emotions, as opposed to an injury to property.”

Let me first confirm the context for what is called a “personal injury claim”, as essentially a legal remedy seeking dollars as restitution for harms caused by another person or entity. And restitution, for example, is the concept that if someone breaks your window they are responsible to repair and replace the damage they caused.

This legal claim is a civil case, not criminal, and involves three primary elements, and the ”burden of proof” is on the injured party who must prove each element of the claim with evidence that is “more probable than not”.

Liability, proof of who's at fault and therefore responsible,

Causation, proof that a specific act of negligence caused a particular harm, and

Damages, proof of the harms and losses that are directly caused by the negligent act; and the evidence can include things that can be calculated like treatment expenses, lost wages, and things that are not subject to quantifiable measurement or calculation like quality-of-life, and emotional distress. For example, you are often the source of the proof of your own claim, and when you go to the doctor for treatment that creates helpful evidence to prove the claim, and if you do not go for treatment that lack of evidence can then be used to defeat the claim.

With Regard to LIABILITY:

Liability comes in many shapes and sizes, and in a car crash incident it's clear that we have “rules of the road” based on specific statutes, and specific standards. However, frequently if there's no investigation at the scene, or independent witnesses, it's often a "he said or she said" dynamic; and that is why investigations involve the search for facts related to: who, what, when, where, how, and why analysis. The injured party has the burden of proof.

With regard to CAUSATION:

There can be many contributing causes in any incident. For example in a car crash some of those issues can be related to the weather, or the design of the highway, or the perceptions or distractions of other things going on in vehicles, like texting, etc. The causation element can be summarized as the "but for" test: So we ask “but for” the negligent actions would the harm and injuries have occurred?

It is also helpful to understand that causation in the medical world may have a specific definition, and even though medicine is incredibly important in the legal environment, it's also important to think about causation in terms of the "but for" perspective; and we often use non-medical witnesses like family members, coworkers and others to prove that the injured person did not have these problems, symptoms or limitations before the “crash” and that they did have these problems after the crash. Before and after...before and after... and again, the person injured always has the burden of proof.

On The Issues of DAMAGES:

Injury claims typically involve different kinds of harms/damages, and in a typical personal injury case harms involve the nature and extent of injury, and past reasonable and necessary treatment expenses, and future reasonable and necessary treatment expenses. These are referred to as economic losses because they can be calculated.

Then there are other economic losses like past and future wage loss, or lost earning capacity-due to injuries.

Note that future losses are frequently calculated based on opinions of doctors, and experts like life-care planners or economists, etc., so there's always the perspective that future losses are inherently ambiguous or speculative...and again...who has the burden of proof?

Lastly, noneconomic losses, for emotional distress, physical and emotional pain, as well as quality-of-life issues (past and future) are all factors to be included in a personal injury claim as they are components of the harms caused by the negligent party...and who has the burden of proof?