Do I have a Case?
Attorneys examine four principal criteria in determining whether
to undertake representation of a potential client. Those criteria
are:
1. Negligence
2. Cause
3. Damages
4. Recoverability
Negligence
For a person to be negligent, they must owe a duty to another,
such as the duty a driver of a vehicle owes to a passenger to drive
in a reasonable fashion, to keep a proper lookout, to be attentive,
and to keep their vehicle under control. If a duty of this kind
is breached, a person may be deemed negligent.
Wisconsin employs comparative negligence laws. That means that
if you, as the potential claimant, were partially at fault, or negligent,
the degree of negligence attributable to you will reduce any recovery
you might otherwise receive. Further, if your degree of negligence
is greater than that of the party from whom you seek recovery or
your negligence is greater than that of individual, multiple parties,
you are barred from recovery. However, persons under the age of
seven are conclusively presumed to not be negligent.
Cause
Wisconsin law requires as a condition of recovery of damages, that
the negligence of the other party is what caused your damages. It
need not be the sole cause, but only a cause. That is to say, the
negligence must be a substantial factor in bringing about the claim
for damages. Even thought you may have injuries and another party
may be negligent, there still must be a causal connection between
the negligence and the injuries.
Damages
Generally speaking, damages may be categorized.
Common examples of damages include the following:
1. Past medical expenses
2. Future medical expenses
3. Past lost wages
4. Future lost wages
5. Past pain and suffering
6. Future pain and suffering, including any permanency
7. Property damage
8. Loss of society and companionship
Damages are not always predictable with mathematical precision.
There may be psychological effects resulting from an injury. Such
items as loss of society and companionship cannot be measured the
same way as past medical expenses.
However, the burden is on the party seeking recovery to prove damages.
It is not sufficient to say that you might have to have surgery.
Rather, this must be proven to a reasonable degree of professional
certainty.
If damages were always predictable, there would be no need for
lawyers, judges or courts. There are a myriad of factors that weigh
on the damage issue apart from the injuries themselves. Some of
these factors include the type of witness each party to a case may
be, the age of the parties, gender, and the circumstances giving
rise to the claim. The job of any lawyer is to advise their client
as to what they need to hear, not merely what they want to hear.
Recoverability
Even though all of the preceding factors may be met, there must
be a means by which you may recover. Typically, lawyers make claims
against insurance companies. Absent insurance coverage, there must
be some alternative source of funds for you to be compensated.
In some cases, insurance coverage may be found in your own policy
or in the policy of someone with whom you reside. If injuries are
caused by a minor engaging in an intentional act, we look to that
person’s parents for recovery, subject to the limitations
imposed by law.
The bottom line is that all any attorney can do is attempt to recover
as much for you as possible. No amount of money can adequately compensate
for the loss of a loved one, nor can it turn back the clock so that
your claim never happened. All that can be done is to attempt to
maximize your recovery, so that you or your family can have a better
life.
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