What Is the Process for Personal Injury Cases in Lakeland?

Thomas C. Grajek | October 16, 2024 | Personal Injury

In a personal injury case arising out of a car accident, a slip and fall accident, or a dog bite claim, the difference between plaintiffs and defendants is easy to state. Generally, the plaintiff is the injured victim who is complaining, while the defendant is the one accused of causing the injury. Here is the process for personal injury cases:

The Complaint

A Complaint is a formal legal document that the plaintiff delivers to the court clerk to initiate a lawsuit. A Complaint must contain the following elements: names of the parties; jurisdiction; causes of action; a statement of facts; and a prayer for relief. Due to the nuances of a Complaint, it’s difficult to draft without the assistance of a lawyer.

The Answer

Once the plaintiff files a Complaint, the defendant typically has 20 days to file an Answer. The Answer must contain the following elements: identifying information of the parties involved; a response to each of the allegations; legal defenses; and a signature. 

Default Judgment

If the defendant fails to submit an Answer within 20 days (and fails to obtain an extension of time to file), the judge may enter a default judgment against them.

What Does the Plaintiff Have to Prove for a Successful Claim?

For any personal injury case, the plaintiff must provide credible evidence for their claim to be successful.

Burden of Proof

The plaintiff bears the burden of proving their claim. They must prove every element of your claim by a “preponderance of the evidence.” This is a relatively low standard of proof to meet. All they need to do is convince the court that their claim is more likely than not to be true.

If they seek punitive damages, they must present “clear and convincing evidence” that they qualify for this type of damages (because the defendant acted with malice, for example). Clear and convincing evidence means that the evidence must be highly and substantially more likely to be true than untrue.

Elements of a Negligence Claim

There are many types of claims you might assert to try and hold the defendant liable – product liability, premises liability, and intentional torts (e.g., assault and battery). The most common claim in personal injury cases, however, is negligence. To win a negligence claim, a plaintiff must prove the following facts:

• The defendant owed you a duty of care.
• The defendant breached their duty of care. 
• The defendant caused your harm. 
• You suffered damages on account of the defendant’s conduct.

It is the defendant’s job to prevent you from proving at least one of these elements. If they can do that much, the plaintiff will lose. 

What Options Does the Defendant Have?

The defendant has legal options available to them to successfully defend themselves.

Affirmative Defenses

Even if the plaintiff proves all four of the elements of negligence, the defendant can still win by proving an affirmative defense. With an affirmative defense, the burden of proof shifts to the defendant – but only with respect to the affirmative defense, not overall liability. Below are some examples of common affirmative defenses:

• Assumption of Risk: The plaintiff understood the risks of the activity (e.g., skydiving or horseback riding) and voluntarily participated.
• Failure to Mitigate Damages: The plaintiff failed to take reasonable steps to minimize your own harm. Failure to follow a doctor’s orders after an accident might constitute failure to mitigate damages, for example.
• Statute of Limitations. The plaintiff filed the lawsuit too late to beat the statute of limitations deadline — two years after the accident, in most cases.
• Comparative Negligence: The plaintiff was partially responsible for their own injuries. Most of the time, this will reduce but not eliminate their damages.

This is only a partial listing of potentially available affirmative defenses.

Settlement

Most personal injury claims are resolved outside of court with private settlement. Settlement remains likely, however, even after the plaintiff files a lawsuit. The plaintiff can always offer to drop the lawsuit in exchange for a settlement. 

Contact the Lakeland Personal Injury Law Firm of Thomas C. Grajek, Attorney At Law Today For Help

For more information, please contact the Lakeland and New Port Richey Personal Injury law firm at the nearest location to schedule a free consultation today.

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