For a number of reasons, personal injury is an area of the law that is generally not suited to self-representation. This article will give you an overview of the law, give you some tips on things to look out for, and encourage you to find an attorney.
Why you need an attorney to help with a personal injury case
Unlike some other areas of the law, personal injury cases are matters that are difficult to handle on your own and there are many attorneys willing to handle the cases with no fee up front. This is why this website does not offer forms and self-help information on personal injury cases. Here are some reasons why you need an attorney to help with a personal injury case.
There are many different laws that may apply - There are many different kinds of personal injury cases, including automobile negligence, medical malpractice and products liability. Each type of personal injury case requires different skills and expertise for success. Because the evidence in these cases may require familiarity with other areas of knowledge such as engineering, physics, or medicine, these cases are hard for a person without special training to handle. An attorney experienced in this area will develop a "theory" of the case to guide his/her argument on your behalf. S/he may draw upon several areas of the law plus basic legal principles. Developing a case requires both legal training and experience.
There are no forms or self-help programs to guide you - Because this area of the law is one that legal experts believe is difficult to handle yourself, there are no forms or programs developed by the courts or legal aid organizations.
You will need expert witnesses and evidence - In order to be successful, you will need to decide which areas of the case will need expert witnesses and you will need to be able to locate, evaluate, pay for and define the issues for expert witnesses.
You will need to use "discovery" - This refers to special set of legal rules and tools that can be used to find out information from the people, agencies or companies that you will sue.
Your case is likely to settle without a court hearing - Most cases of this type are settled after the case is filed but before the full court hearing on the merits of the case. Aside from the challenges of representing yourself on an emotional issue, many personal injury cases involve an argument that there has been some level of incapacity as the result of the defendant's actions or negligence. It will be hard to make that argument if you are handling the case yourself.
Personal Injury Basics and What to Look For
Each type of personal injury case requires different skills and expertise for success. It is not possible to summarize the law relating to every type of injury here. There are, however, some core concepts that will help you to understand what you must prove. Understanding the law means first understanding the key definitions. In addition, it is important to file your claim within certain time periods. Remember that the other side may defend themselves by arguing that it is not entirely their fault.
These are the concepts to help you understand personal injury cases. Personal injury cases are part of the larger law of torts. "Personal injury" means an injury to your body or mind. "Tort" means a wrongful action that injures a person, for which the injured person may receive monetary compensation from the person who committed the wrongful action. Torts may result from intentional or negligent actions.
"Negligence" is an action that accidentally injures someone. In a negligence case, the plaintiff claims that the defendant did not do something that s/he should have. To make a claim for negligence, the plaintiff must prove that the defendant breached a duty of care owed to the defendant, which caused injury to the plaintiff.
For example, when the driver of a car isn't paying attention and accidentally rear-ends your car, that is negligence. To win compensation for negligence, you must show that the person who injured you owed you some kind of duty (obligation or responsibility). In this example, drivers have a duty to watch other cars on the road and to avoid hitting them when they stop at red lights or stop signs. The driver who hit you breached (broke) that duty and caused your injury as a result of that breach of duty.
Filing Your Claim on Time
As a person making a claim for personal injury, you are limited by the "statute of limitations." The "statute of limitations" is a law that limits the amount of time you have to file a legal case against another person. If you wait too long after suffering (or discovering) an injury to file your claim, you may be legally unable to recover any money from the person who hurt you. This is true even if that person really is to blame for your injury.
Maryland law limits the amount of time you have to file a court complaint against a person or company that has wrongfully injured you. Figuring out which statute of limitations applies to your case can be difficult.
The "statute of limitations" that applies to most tort cases is Md. Code, Courts & Judicial Proceedings ("Cts & Jud. Proc.") § 5-101, which provides that "a civil action at law shall be filed within three years from the date it "accrues" (see below) unless another provision of the Code provides a different period of time within which an action shall be commenced." However, actions for assault, libel, or slander must be filed within one year of the date when they accrue, according to MD Cts. & Jud. Proc. §5-105. Read the Law: Cts. & Jud Proc. §§ 5-101 & 5-105
Even after you figure out which law applies, you must decide when this period starts. Deciding when "a cause of action accrues" is often a matter of complex legal interpretation and requires substantial case law research. It is a good idea to consult a lawyer to help you figure out when your cause of action accrued. Usually, but not always, the tort cause of action "accrues" on the date when the wrongful action occurs and results in injury. Read the Law: Litz v. Maryland Department of the Environment, 434 Md. 623 (2013); Booth Glass Co. v. Huntingfield Corp., 304 Md. 615 (1985).
Even if you can prove that the person you are suing wrongfully injured you and you file your law suit within the legal time limit, your claim may be barred (prohibited) or reduced by certain legal "defenses."
One such defense is "contributory negligence." In Maryland and other states that adhere to the rule of contributory negligence, you can't legally recover compensation from a person who negligently injured you if you also acted negligently and your own negligence contributed to your injury. In other words, if you were also to blame for the injury because you were negligent, you may be barred from recovering anything. Read the Law: Coleman v. Soccer Ass'n of Columbia, 432 Md. 679 (2013).
Another possible defense to a personal injury claim is "assumption of the risk." In Maryland, a person is said to have assumed the risk of injury when he or she has full knowledge and understanding of an existing danger and voluntarily exposes him- or herself to that danger. In other words, if the other side can show that you knew of the danger and you chose to go ahead, you may be barred from recovery. Read the Law: Poole v. Coakley & Williams Constr'n, Inc., 423 Md. 91 (2011).
There may be other possible defenses to your personal injury claim, depending on who hurt you and how.
Very thorough research is required to determine whether you can win a personal injury case.
List of Helpful Books
If you decide to pursue your case on your own, or if you just need more information, here are a list of books that may help you. These books can be found at many Circuit Court Libraries. There are no official court forms for making a personal injury claim. Any potential plaintiff who is not clear on what to do should consult an attorney. Circuit Court Clerks cannot give legal advice. A Clerk will not review a complaint and acceptance by a Clerk does not mean that the complaint meets all of the requirements of the law.
Paul T. Gilbert & Richard J. Gilbert, Maryland Tort Law Handbook (3d ed. 2000).
Paul Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland, Chapter 3 (6th ed. 2018).
American Law Institute Restatement Third, Torts: Liability for Physical and Emotional Harm