Personal Injury Frequently Asked Questions
No one ever expects to suffer a serious injury in a sudden accident. This often makes a bad situation worse by leaving accident victims with not only pain and medical bills, but plenty of stress and even more questions. Our experienced personal injury lawyers have compiled the answers right here to some of the most common questions we regularly hear from injury victims to help make the weight on your shoulders a little lighter.
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Why Do I Need a Personal Injury Lawyer?
While you are not legally required to have a lawyer represent you in a personal injury claim, it is highly recommended. A good personal injury lawyer will have the experience, knowledge, and skill to negotiate against the high-pressure tactics that insurance companies often use to reduce or deny claims, calculate fair compensation for your damages, and navigate the red tape and paperwork involved if a claim ends up needing to go to trial.
When looking for a personal injury firm to handle your case, prioritize those with experience with your type of accident/injury, and with your local court system.
What if I have already started the claims process? Can I still hire a lawyer?
If you have already filed a claim or begun communicating with an insurance company on your own, it is not too late to hire an attorney. In fact, if you find yourself feeling overwhelmed, pressured, or unsure whether the compensation being offered is fair, those are signs that legal representation could make a real difference.
Our personal injury attorneys can step in at any stage of the process, review what has already been submitted, and advise you on the best path forward. What you should avoid is accepting a settlement before consulting with a lawyer.
Can I Still Recover Compensation if I was Partially at Fault?
Yes. New York follows a pure comparative negligence rule, which means you can recover compensation even if you were partially responsible for the accident. Your total damages will simply be reduced by your percentage of fault. If you were found to be 20% at fault, you would recover 80% of your total damages. The opposing party will often try to assign you as much fault as possible to minimize what they owe, which is why having an attorney who can accurately represent the circumstances of your accident is so important.
What Types of Damages Can be Claimed in a Personal Injury Case?
Damages in a personal injury case generally fall into two broad categories: economic and non-economic. Economic damages, or special damages, cover the concrete, measurable financial losses you’ve suffered, including past and future medical bills, rehabilitation costs, lost wages, and any future income you may be unable to earn because of your injury.
Non-economic damages, also known as general damages, account for the more personal toll of your injuries, such as pain and suffering, emotional distress, loss of enjoyment of life, and loss of consortium.
These two types of damages are collectively referred to as compensatory damages. However, in some cases, a court may also award punitive damages, which are intended to punish a defendant whose conduct was especially reckless or egregious and deter similar behavior in the future.
An experienced personal injury attorney can help you understand which types of damages apply to your situation and work to ensure that every loss you’ve suffered is accounted for.
New York Personal Injury Settlements: What’s the Average Payout?
The value of a personal injury claim depends on a wide range of factors, including the severity of your injuries, the cost of your medical treatment, whether your injuries have affected your ability to work, and the degree to which the other party was at fault. Two people injured in similar accidents can walk away with very different settlements based on these variables.
What our personal injury attorneys can do is build the strongest possible case for maximum compensation by thoroughly reviewing your medical records, researching comparable verdicts and settlements, and accounting for both your current and future losses.
What Evidence Should I Have for my Personal Injury Lawsuit?
Building a strong personal injury case starts with documentation, and the more thorough you are, the better. The most critical evidence is typically your medical records, such as diagnosis documentation, treatment notes, discharge instructions, bills, and receipts. These can help establish the extent of your injuries and link them directly to the accident. A copy of any police or incident reports, photos of the scene, and the contact information of any witnesses can also be invaluable. If your injury required you to purchase items like mobility aids or adaptive equipment, hold onto those receipts as well. Try to keep an ongoing record of your symptoms, pain levels, medical appointments, and the ways your injury is affecting your daily life.
The bottom line is that you should document everything and save everything, starting as soon as possible after your accident. Your attorney can help you identify which pieces of evidence will be most relevant to your specific case.
What if I Didn’t See a Doctor After My Accident? Can I Still Sue?
Yes, but it will make your case significantly harder to win. Medical records are one of the most important forms of evidence in a personal injury lawsuit, both for proving the extent of your injuries and for establishing that those injuries were caused by the accident in question. When there is a gap between the accident and your first medical visit, insurance companies and defense attorneys will often argue that your injuries must not have been serious, or that something else caused them in the interim.
If you have already delayed seeking treatment, the best thing you can do is see a doctor as soon as possible and be upfront with them about when and how you were injured. Our personal injury attorneys can help contextualize the gap and build a case around the evidence that is available.
What Type of Injuries Qualify in Personal Injury Claims in New York State?
In New York, you can pursue a personal injury claim for a wide range of physical injuries caused by another party’s negligence. That said, the nature of your injury is only part of the equation. What matters equally is whether you can prove that someone else’s negligence caused it. If you were hurt in a car accident, a slip and fall, a workplace incident, or any other situation where another party failed in their duty of care toward you, you may have a valid claim regardless of the type of specific injury involved.
If you’re unsure whether your injuries qualify, speaking with a personal injury attorney is the best way to get a clear answer.
What are Legal Terms I Need to Know for My Injury Claim in New York?
Here are some of the most important concepts you may encounter:
- Negligence — The foundation of most personal injury claims. Negligence refers to a party’s failure to exercise reasonable care, resulting in harm to another person.
- Cause of Action — The legal basis for your lawsuit: the set of facts that entitles you to seek compensation.
- Comparative Negligence — New York law allows you to recover damages even if you were partially at fault for the accident, though your compensation will be reduced by your percentage of responsibility.
- Assumption of Risk — A defense sometimes raised by the opposing party, arguing that you knowingly accepted the dangers of a particular activity.
- Liability Waivers — Similar to assumption of risk, these are agreements waiving the right to sue. They are not ironclad in New York and can often be challenged.
- Burden of Proof — In a civil personal injury case, you don’t need to prove your case beyond a reasonable doubt — only that it is more likely than not that the defendant’s negligence caused your injuries.
- Loss of Consortium — Damages your spouse may be entitled to for the loss of companionship and support resulting from your injury.
- Collateral Source Rule — Any compensation you’ve received from a third party, such as your health insurance provider, generally cannot be used by the defendant to reduce what they owe you.
- Summary Judgment — A motion either party can file asking the court to rule in their favor without a trial, on the grounds that there are no genuine factual disputes to resolve.
What is the Duty to Mitigate?
In New York personal injury law, the duty to mitigate refers to your legal obligation to take reasonable steps to minimize the impact of your injuries after an accident. This includes following your doctor’s treatment plan, attending your medical appointments, and avoiding actions that could worsen your condition. If you fail to do so, the opposing party may argue that some portion of your damages were caused not by the accident, but by your own inaction or negligent actions following the accident.
It’s important to understand that this duty is not absolute. You are not expected to pursue every possible treatment or take steps that are financially out of reach. Your attorney can help ensure that your efforts are documented and that any mitigation arguments raised by the defense are properly countered.
Will I Have to Testify in Court?
The majority of personal injury cases in New York are settled before ever reaching trial, so there’s a good chance you won’t have to testify in court at all. That said, if a fair settlement cannot be reached, your case may proceed to trial, and testifying before a judge or jury could be part of that process. You may also be asked to participate in a deposition before trial, which is a formal question-and-answer session with the opposing attorney where your testimony is recorded on-record and can be used later in the proceedings.
If testifying does become necessary, our attorneys are trained to prepare you so you know what to expect and feel as confident as possible. The most important thing you can do in any testimony is to be honest, consistent, and detailed about your experience and the impact the injury has had on your life.
How is Negligence Determined in New York State?
In New York, negligence is determined by evaluating whether the party who caused your injury failed to act with the level of care that a reasonable person would have exercised under the same circumstances. To establish negligence, four elements must be present:
- The defendant owed you a duty of care
- They breached that duty
- The breach directly caused your injury
- You suffered measurable damages as a result.
Evidence used to establish negligence can include witness statements, photos, surveillance footage, police or incident reports, and expert testimony. Because proving negligence is often the most contested part of a personal injury case, having an experienced attorney in your corner who knows how to gather and present the right evidence can make all the difference.
Can My Personal Injury Case be Hurt by Social Media?
Yes, it can. Insurance companies and defense attorneys routinely monitor the social media accounts of personal injury claimants, looking for anything that might contradict the severity of your injuries or undermine your credibility. A photo of you at a social event, a post about a weekend activity, or even an offhand comment about how you’re feeling can be taken out of context and used against you. The safest approach is to avoid posting about your accident, your injuries, or your daily activities altogether until your case is resolved, and to ask close friends and family to do the same.
Is it Possible to Appeal a Verdict in a New York Personal Injury Case?
Yes. If the verdict in your personal injury case did not go in your favor, you have the right to appeal. It’s important to understand, however, that an appeal is not a new trial or a second chance to re-argue the facts of your case. Instead, it is a request for a higher court to review the original proceedings for legal errors that may have affected the outcome, such as improper jury instructions or evidence that was wrongly admitted or excluded. Appeals can be a lengthy and complex process, and success is not guaranteed, but they are a legitimate and sometimes worthwhile avenue when there are grounds to pursue one.
What is an Expert Witness?
An expert witness is a specially credentialed professional called upon to provide testimony in a case that requires specialized knowledge beyond the scope of a typical juror or judge. In personal injury cases, expert witnesses might include medical professionals who can speak to the nature and long-term impact of your injuries, accident reconstruction specialists who can establish how and why an incident occurred, or economists who can calculate the future financial losses resulting from your injury. Unlike a standard witness, who can only testify to what they directly observed, an expert witness is permitted to offer informed opinions based on their training and experience.
How do I get a copy of my accident report in NYC?
Depending on the nature of your accident, your report will be filed with different agencies; a car accident report, for example, is typically obtained through the NYPD or the DMV, while an incident that occurred on public transit may involve the MTA. In most cases, reports can be requested online, by mail, or in person, and there is usually a small fee involved.
Your personal injury attorney can help you obtain the relevant reports quickly and ensure that the information they contain is accurate. Errors in an accident report, if left uncorrected, can complicate your claim.