Fort Worth Personal Injury Attorney
FAQs
WHO IS RESPONSIBLE FOR AN ACCIDENT OR INJURY?
TYPES OF ACCIDENTS AND INJURIESGENERAL QUESTIONS CONCERNING AUTO ACCIDENTS
GENERAL QUESTIONS CONCERNING THE LAW AND LAWSUITS
GENERAL QUESTIONS CONCERNING EVIDENCE
WHO IS RESPONSIBLE FOR AN ACCIDENT OR INJURY?
Q: What must I prove in order to recover damages from someone who has injured me?
A: Generally speaking, in order to recover damages from the person who has cause your injury, you must prove that the other person injured you by their negligent, reckless (grossly negligent), or intentional act or omission.
Q: What is negligence?
A: Texas law defines negligence as failure to use the degree of care that a person of ordinary prudence would use under the same or similar circumstances. Negligence may consist of doing something that a person of ordinary prudence would not have done or in failing to do something that a person of ordinary prudence would have done under the same or similar circumstances. (PJC 2.1). In order to successful bring a claim for damages caused by negligence, an injured person must typically show: (1) that the person causing the injury had a duty to the injured person or to the general public, (2) the actions of the person who caused the injury were not what a reasonably prudent person would have done, and (3) that damages were proximately caused by those actions.
Q: What is reckless or grossly negligent conduct?
A: Reckless conduct is conduct that constitutes a blatant departure from what a reasonable person would do under the same or similar circumstances and typically involves a substantial, unjustifiable risk of harm to others with a conscious or deliberate indifference to that risk. Under Texas law, gross negligence "means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission in question was the result of actual conscious indifference to the rights, welfare, or safety of the persons affected by it." (PJC 4.2A).
Q: What is intentional conduct?
A: Simply stated, intentional conduct is an act preformed with a conscious purpose or intent.
Q: What is proximate cause?
A: Simply stated, in a negligence action, proximate cause is the action or failure to act that produces the injury or damages, and with which the injury or damages would not have occurred. In order to be the legal proximate cause, the act or failure to act must be such that a person using ordinary care would have foreseen that the injury or damages, or a similar injury or damages, might reasonable result from the act or failure to act. There may be more than one proximate cause for an injury. (PJC 2.4).
Q: What if I am partially at fault for the accident?
A: Under Texas law, even if you might be partly at fault for an accident yourself, you can still receive compensation from anyone else who was careless and partly caused the accident. Texas is a comparative negligence State. This means that you can sue any responsible party even if you are partially at fault in the accident. However, your damage award will be reduced by the percentage of your own negligence. For example, if you were 25% at fault and the other person was 75% at fault, the other person must pay you 75% of the fair compensation for your injuries.
Q: Are children responsible for accidents that they cause?
A: The same basis of establishing negligence based on reasonableness and carefulness is used to determine if a child is responsible for an accident, but because children do not have the same understanding of carefulness as do adults, a different degree of care is used to in examining the actions of children. The law thus applies different standards of care to different age groups. Under Texas law, a child who is younger than five is presumed to be too young to understand that they have been negligent, and thus as they cannot be held negligent under the law. However, parents may be held liable for a child's conduct is they acted unreasonably in failing to control their child. For children who are at least five years of age, but younger than fourteen years of age, their degree of care is measured based on what another child of similar age and experience would consider to be reasonably careful. Children over the age of fourteen are typically held to the same degree of care as are adults. Regardless of the age of the child, if the child intentionally causes damages or injury, the child may be held liable for the damages. The negligent actions of minor children will often be covered by insurance, such as automobile insurance or homeowner's or renter's insurance.
Q: When can a cause of action for wrongful death be made?
A: If the wrongful acts, neglect, carelessness, or unskillfulness that person or entity, or its employee(s), caused a person death, that person's parents, children, and spouse may bring a cause of action against the person or entity that caused the death under the Texas Wrongful Death Statute.
Q: What is an "Act of God"?
A: Under Texas law, the legal phrase "Act of God" refers to an occurrence caused directly and exclusively by the violence of nature, without human intervention or cause, and which could not be prevented by reasonable foresight or care. (PJC 3.5). If an event is an Act of God, then, by definition, it was not caused by anyone's negligence and thus no one may be held negligent for that event.
Q: What is negligent entrustment?
A: Generally, negligent entrustment occurs where a person or entity entrusts a vehicle to a reckless, incompetent, or unlicensed driver, if the person or entity entrusting the vehicle should have known that the driver was reckless, incompetent, or unlicensed. If such a driver causes a collision, then the person or entity who negligently entrusted the vehicle may also be responsible for the damages caused by the collision. (PJC 7.12).
Q: Is a business responsible for the negligent actions of its employee(s)?
A: A business will generally be held responsible for the wrongful acts of its employee(s) if those acts were committed within the scope of the employee's employment, that is, if the acts were committed in the furtherance of the employer's business. (PJC 7.6).
Q: If I or someone related to me was injured or killed by a drunk driver, is the bar where the drunk driver became intoxicated liable for the injuries?
A: Under the Texas Dram Shop Act, if a bar or other establishment that sells alcoholic beverages (1) serves an alcoholic beverage to a person who was obviously intoxicated to the extent that he presented a clear danger to himself and others at the time the beverage is served and (2) the intoxication of the person being served causes damages to another, the bar or other establishment may be held liable for the injuries caused by the intoxicated individual.
Q: How long do I have to file a case (i.e., what are statutes of limitations)?
A: Statues of limitations are laws that set the maximum amount of time during which a case may be filed. Statutes of limitations vary by state. If a case is not filed by the expiration of the statute of limitations period, then courts will typically dismiss the case if an attempt is made to file after the statute of limitations. In Texas, a personal injury action must be filed within two years of the date of the injury, a products liability action liability action must be filed within two years of the time the injury is suffered, and a medical malpractice action must be filed within two years of the act giving rise to the injury. For minor children, the statute of limitations will typically not begin to run until the minor's eighteenth birth day.
TYPES OF ACCIDENTS AND INJURIES
Q: What are the most common personal injury lawsuits?
A: The most common personal injury lawsuits are automobile accident. Slip and fall accidents, where a person was injured when they slipped or tripped on another's property because the property owner failed to keep his property in a safe condition, are also common personal injury lawsuits. Other common personal injury actions included suits for wrongful death, on-the-job-injuries, animal bites, medical malpractice, defective products, and violent crimes.
Injuries at a Store or on Someone Else's Property
Q: What duty of care does a property owner owe to someone who comes on his or her property?
In a premises liability case, the duty owed by a property owner to visitors will depend on the legal relationship between the property owner and the visitor. A person who enters another's property is legally classified as either an invitee, a licensee, or a trespasser.
An invitee is a person who enters another person's property at the owner's express or implied invitation and either for the owner's benefit or for the mutual benefit of both entrant and the owner. The typical example of an invitee is a customer in a store. A property owner generally has a duty to use reasonable care to make and keep the premises safe for invitees. In order to establish an owner's liability for an injury suffered on the owner's property, the invitee must show: (1) that condition of the premises created an unreasonable risk of harm to the invitee, (2) the owner knew or reasonably should have known of the condition, (3) the owner failed to exercise ordinary care to protect the invitee from danger, and (4) the owner's failure caused the injury to the invitee.
A licensee is a person who enters another person's property at the owner's express or implied invitation, but who does so only for his or her own benefit or purposes. A social guest is a typical example of a licensee. A property owner owes a licensee two basic duties - (1) not to injure the licensee by the owner's willful, wanton, or grossly negligent conduct and (2) if the owner has actual knowledge of an unreasonably dangerous condition and the licensee does not, the owner must either warn the licensee of the condition or make the condition reasonably safe.
A trespasser is a person who enters the owner's property without the owner's express or implied permission. The standard of care owed to trespassers is the lowest standard of care a property owner can owe to those who enter his or her property. Duty of care owed to a trespasser is to refrain from causing injury through willful, wanton, or grossly negligent conduct. Trespassers take the premises as they find them, and property owners owe them no duty to warn of dangerous conditions.
Q: What is a "slip and fall" accident?
A: A "slip and fall" accident is a general term for an accident that occurs when someone trips, slips, or otherwise falls because of a dangerous condition on someone else's property. Common types or causes of slip and fall accidents including falls as a result of water or ice, slipping on slick stairs or a slick ramp, food or other substances in the floor or on the ground, gaps and difficult to see holes in the floor or ground, improperly maintained bathrooms, and abrupt changes in the type of floor covering. If you fall on someone else's property as a result of some defect or other danger condition on their property, the property owner may be liable for any resulting injuries.
Accidents Cause By Animals
Q: Is an animal's owner responsible for accidents caused by the animal?
A: Animals often cause injuries by biting or clawing someone, jumping on people, causing people to lose their balance, and running into the street and causing an auto accident. The key issue in whether the owner will be held legal responsible for accidents caused by animals is typically a question of whether the owner was aware or should have been aware of that the animal was likely to cause injury. Factors such as the animal's behavior in the past, the type of animal and type of breed, the size of the animal, and whether the animal has caused injuries in the past are important considerations in making this determination. Injuries caused by animals will often be covered under the owner's homeowner's insurance policy.
Injuries Caused By Defective Products
Q: What is products liability?
A: Many injuries are caused by defective or dangerous products. The doctrine of products liability often makes recovery easier than a typical negligence action because negligence is automatically presumed. The doctrine of products liability applies to anyone who is engaged in the business of selling a product and who suspected the product to reach the consumer without substantial change in the products condition. Under this doctrine, both the manufacture and the store where the defective or dangerous product was sold will typically be held responsible. In order to recover for an injury on the theory of strict products liability in tort, the plaintiff must prove that: (1) the defendant placed a product into the stream of commerce (i.e., typically the manufacturer, the supplier, or the store that sold the product); (2) the product was in a defective or unreasonably dangerous condition at the time the product left the hands of the defendant; and (3) the defective or dangerous condition caused the plaintiff's injuries. A product may be unreasonably dangerous due to a defect in manufacturing or design, or because of a failure to provide adequate warnings or instructions. A lack of adequate warnings or instructions can render an otherwise adequate product unreasonably dangerous. Products liability claim do not require the plaintiff to prove how the product became defective. This rule evolved because the consumer is not in a position to know the manufacturing process and how the defect might have occurred and based on the consumer's right to receive a safe product from the manufacturer.
Intentional Injuries
Q: What is assault and battery?
A: Under Texas law, a person commits an assault if he or she: "(1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when he or she knows or should reasonably believe that the other will regard the contact as offensive or provocative." (PJC 6.6).njuries.
WHAT DAMAGES MAY I RECOVER?
Q: What are damages?
A: In a lawsuit, the term "damages" refers to the money claimed by the plaintiff in order to compensate for his or her injury or loss due to the wrongful act or omission of the defendant. Damages often include loss, injury, or harm to a person, to property, or to reputation. Common types of damages include medical expenses, rehabilitation therapy, lost wages, compensation for pain and suffering, compensation for property that was damaged, compensation for disfigurement or disability, and compensation for any other cost that are a direct result of your injury. If a lawsuit goes to trial, the amount of damages, that is the amount of money need to compensate the plaintiff for the wrongful acts or omissions of the defendant, will be determined by the judge or jury.
Q: How are damages determined?
A: At trial, damages are determined by the judge or jury based on the evidence that is presented at trial. This evidence may include medical bills, other bills or evidence of expenses, evidence of lost wages, evidence of property damage and repair costs, witness testimony, and the testimony of doctors or other expert witnesses. If a case is settled before trial, each party analyzes this same type of evidence to come to an agreement on how much the case is worth. A lawyer will know what type of expert witness to hire and what type of evidence to present to best prove your damages.
Q: What type of damages may I recover for a personal injury?
A: If someone else negligently or recklessly caused your injury, you may be entitled to recover damages for your physical pain and mental anguish, any loss of earning capacity, disfigurement, physical impairment, and medical care. (PJC 8.2).
Q: Is my spouse entitled to recover any additional damages due to my personal injury?
A: If someone else negligently or reckless caused your injury, your spouse may be entitled to recover an amount that would fairly and reasonably compensate them for any loss of household services or loss of consortium that they have or will suffer. Under Texas law, household services are defined as "the performance of household and domestic duties by a spouse to the marriage." Under Texas law, consortium is defined as "the mutual right of the husband and wife to that affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love, and felicity necessary to a successful marriage." (PJC 8.3).
Q: What type of damages may be recovered for wrongful death?
A: If a person death was caused by the wrongful acts, neglect, or unskillfulness of another, the decedent's parents, children, and spouse may be able to recover an amount that would fairly and reasonably compensate then for (1) the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a monetary value (other than inheritance), that they would have received from the decedent had he or she lived; (2) the loss of the positive benefits flowing from the love, comfort, companionship, and society that they would have received from the decedent had he or she lived; and (3) the emotional pain, torment, and suffering experienced by the decedent's death. (PJC 9.2 - 9.5). When the death is caused by a willful act or omission or gross negligence, exemplary as well as actual damages may be recovered. Q: What types of damages may be recovered for damage to personal property?
A: If someone else is found liable for damages to your personal property, you may be entitled to recover the difference between the market value of the property before the damage and after the damage or the reasonable cost to repair the property as well as any damages for loss of the use of the property for the period of time required to repair the damage. (PJC 11.2 - 11.3).
Q: What are compensatory damages?
A: The term "compensatory damages" refers to the amount of money adequate to compensate for the actual damages caused by the defendant to the plaintiff.
Q: What are medical expenses?
A: Medical expenses include doctors fees, hospitalization costs, and other costs necessary to receive diagnosis or treatment from a doctor or health care facility.
Q: What are lost wages?
A: Lost wages include money from wages and earning that would have been earned by the injured person, but which were not earned because of the injury resulting from the defendant's negligence.
Q: What is pain and suffering?
A: The term pain and suffering refers to damages in the form of monetary compensation for the hurt, aches, and pain, including physical and mental distress, that an injured party is caused to endure as a result of the negligence of the defendant. Pain and suffering may include not only your physically pain, but also the mental anguish of going through potential surgery and avoiding activities that you used to do before your injury.
Q: What is a soft tissue injury?
A: A soft tissue injury is an injury that is not easily observed by objective medical tests, but rather is mainly evidenced by the description of pain and discomfort by the injured party. Sprains, strains, and other injuries that involve only muscles and soft connective tissue are examples of soft tissue injuries. Insurance adjusters distinguish between soft tissue injuries from so called "hard injuries" in that hard injuries can be specifically observed through medical evaluation, such as by x-ray or other test. Examples of hard injuries include broken bones, wounds that need stitches, and compressed nerves. Insurance adjusters typically place less value on soft tissue injuries, as compared to observable hard injuries, because soft tissue injuries are typically not permanent and because they cannot be readily observed and thus are more difficult to prove. Thus, it is important to give a through description of the pain suffered with soft tissue injuries especially when the injury has caused significant pain and suffering.
Q: Will a prior injury affect the value of my claim?
A: A negligent defendant is typically only responsible for the damage that he or she caused to the plaintiff. Therefore, if the plaintiff has a prior injury, the defendant cannot be held responsible to the extent that the injury already existed because, to this extent, the plaintiff's initial injury was not caused by the defendant's negligence. However, if the defendant's negligence aggravated the plaintiff's initial injury or made the prior injury worse, the defendant will be liable to the extent that the injury or condition was been aggravated. Therefore, if someone negligently aggravates a prior injury, you may collect damages against them to the extent that the injury was aggravated or made worse.
GENERAL QUESTIONS CONCERNING AUTO ACCIDENTS
Q: What must I prove in order to recover damages from someone who has injured me?
A: Generally speaking, in order to recover damages from the person who has cause your injury, you must prove that the other person injured you by their negligent, reckless (grossly negligent), or intentional act or omission.
Q: What is negligence?
A: Texas law defines negligence as failure to use the degree of care that a person of ordinary prudence would use under the same or similar circumstances. Negligence may consist of doing something that a person of ordinary prudence would not have done or in failing to do something that a person of ordinary prudence would have done under the same or similar circumstances. (PJC 2.1). In order to successful bring a claim for damages caused by negligence, an injured person must typically show: (1) that the person causing the injury had a duty to the injured person or to the general public, (2) the actions of the person who caused the injury were not what a reasonably prudent person would have done, and (3) that damages were proximately caused by those actions.
Q: What is reckless or grossly negligent conduct?
A: Reckless conduct is conduct that constitutes a blatant departure from what a reasonable person would do under the same or similar circumstances and typically involves a substantial, unjustifiable risk of harm to others with a conscious or deliberate indifference to that risk. Under Texas law, gross negligence "means more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission in question was the result of actual conscious indifference to the rights, welfare, or safety of the persons affected by it." (PJC 4.2A).
Q: What is intentional conduct?
A: Simply stated, intentional conduct is an act preformed with a conscious purpose or intent.
Q: What is proximate cause?
A: Simply stated, in a negligence action, proximate cause is the action or failure to act that produces the injury or damages, and with which the injury or damages would not have occurred. In order to be the legal proximate cause, the act or failure to act must be such that a person using ordinary care would have foreseen that the injury or damages, or a similar injury or damages, might reasonable result from the act or failure to act. There may be more than one proximate cause for an injury. (PJC 2.4).
Q: What if I am partially at fault for the accident?
A: Under Texas law, even if you might be partly at fault for an accident yourself, you can still receive compensation from anyone else who was careless and partly caused the accident. Texas is a comparative negligence State. This means that you can sue any responsible party even if you are partially at fault in the accident. However, your damage award will be reduced by the percentage of your own negligence. For example, if you were 25% at fault and the other person was 75% at fault, the other person must pay you 75% of the fair compensation for your injuries.
Q: Are children responsible for accidents that they cause?
A: The same basis of establishing negligence based on reasonableness and carefulness is used to determine if a child is responsible for an accident, but because children do not have the same understanding of carefulness as do adults, a different degree of care is used to in examining the actions of children. The law thus applies different standards of care to different age groups. Under Texas law, a child who is younger than five is presumed to be too young to understand that they have been negligent, and thus as they cannot be held negligent under the law. However, parents may be held liable for a child's conduct is they acted unreasonably in failing to control their child. For children who are at least five years of age, but younger than fourteen years of age, their degree of care is measured based on what another child of similar age and experience would consider to be reasonably careful. Children over the age of fourteen are typically held to the same degree of care as are adults. Regardless of the age of the child, if the child intentionally causes damages or injury, the child may be held liable for the damages. The negligent actions of minor children will often be covered by insurance, such as automobile insurance or homeowner's or renter's insurance.
Q: When can a cause of action for wrongful death be made?
A: If the wrongful acts, neglect, carelessness, or unskillfulness that person or entity, or its employee(s), caused a person death, that person's parents, children, and spouse may bring a cause of action against the person or entity that caused the death under the Texas Wrongful Death Statute.
Q: What is an "Act of God"?
A: Under Texas law, the legal phrase "Act of God" refers to an occurrence caused directly and exclusively by the violence of nature, without human intervention or cause, and which could not be prevented by reasonable foresight or care. (PJC 3.5). If an event is an Act of God, then, by definition, it was not caused by anyone's negligence and thus no one may be held negligent for that event.
Q: What is negligent entrustment?
A: Generally, negligent entrustment occurs where a person or entity entrusts a vehicle to a reckless, incompetent, or unlicensed driver, if the person or entity entrusting the vehicle should have known that the driver was reckless, incompetent, or unlicensed. If such a driver causes a collision, then the person or entity who negligently entrusted the vehicle may also be responsible for the damages caused by the collision. (PJC 7.12).
Q: Is a business responsible for the negligent actions of its employee(s)?
A: A business will generally be held responsible for the wrongful acts of its employee(s) if those acts were committed within the scope of the employee's employment, that is, if the acts were committed in the furtherance of the employer's business. (PJC 7.6).
Q: If I or someone related to me was injured or killed by a drunk driver, is the bar where the drunk driver became intoxicated liable for the injuries?
A: Under the Texas Dram Shop Act, if a bar or other establishment that sells alcoholic beverages (1) serves an alcoholic beverage to a person who was obviously intoxicated to the extent that he presented a clear danger to himself and others at the time the beverage is served and (2) the intoxication of the person being served causes damages to another, the bar or other establishment may be held liable for the injuries caused by the intoxicated individual.
Q: How long do I have to file a case (i.e., what are statutes of limitations)?
A: Statues of limitations are laws that set the maximum amount of time during which a case may be filed. Statutes of limitations vary by state. If a case is not filed by the expiration of the statute of limitations period, then courts will typically dismiss the case if an attempt is made to file after the statute of limitations. In Texas, a personal injury action must be filed within two years of the date of the injury, a products liability action liability action must be filed within two years of the time the injury is suffered, and a medical malpractice action must be filed within two years of the act giving rise to the injury. For minor children, the statute of limitations will typically not begin to run until the minor's eighteenth birth day.
GENERAL QUESTIONS CONCERNING THE LAW AND LAWSUITS
Q: What is litigation?
A: Simply stated, litigation is a lawsuit, that is, it is the legal process by which individuals and business settle disputes, enforce rights, and collect damages. Litigation does not just mean going to court - in fact, most lawsuits are resolved without ever going to court.
Q: How long does a lawsuit take?
A: The length of a lawsuit will depend on the facts of the individual case and the parties involved. Some cases may be settled in just a couple of weeks, while others may take more than a year to settle or go to trial.
Q: Who is the plaintiff?
A: The plaintiff is the person or persons who brings a legal action seeking to enforce rights or recover damages against the defendant or defendants. A lawsuit may have one or more plaintiffs.
Q: Who is the defendant?
A: The defendant is the person or persons against whom a lawsuit is filed, that is the person or persons against whom the plaintiff(s) is seeking to enforce rights or recover damages. A lawsuit may have one or more defendants.
Q: Who are the parties of a lawsuit?
A: Collectively, all of the plaintiffs and defendants in a lawsuit are referred to as the parties.
Q: What is a petition?
A: In Texas, a petition is the document that typically begins a law suit. The petition states that names of the plaintiffs and the defendants, defines the issues that will be address in the lawsuit, states the basis for the causes of action the plaintiff is assertion against the defendant, and request some form of action from the Court, such as an award of monetary damages.
Q: What is an answer?
A: An answer is the document filed by the defendant in response to the allegations made by the plaintiff's petition. In the answer, the defendant may admit some or all of the allegations made by the plaintiff, deny some or all of the allegations made by the plaintiff, and/or make new allegations.
Q: What happens after the petition and answer are filed?
A: After the plaintiff has filed a petition and the defendant has responded with an answer, the parties begin to evaluated whether or not the plaintiff has a valid claim against the defendant, and if so, the amount of damages the plaintiff may be entitled to recover. This evaluation is typically conducted through a process called "discovery." During the discovery process, each side will try to determine the facts of the case as well as the strengths and weaknesses of their position and the other side's position. Before, during, and after the discovery process, the parties will typically try to reach a settlement that is agreeable to all of the parties. If a settlement is not reached, the case will proceed to trial, where a judge and/or jury will decide the proper resolution of the lawsuit.
Q: What is discovery?
A: Discover is the process by which each side attempts so to determine the facts of the case as well as the strengths and weaknesses of their position and the other side's position. The purpose of discovery is for the parties to either reach an agreeable settlement of the case or prepare the case for trial. Discovery will typically consist of each side presenting interrogatories and requests for production to the other side and taking depositions of the parties and key witnesses in the case.
Q: What are interrogatories?
A: Interrogatories are a set of written questions concerning the facts of the case that one side of the case requests the other to answer. Interrogatories are used during the discovery process to evaluate the strengths and weaknesses of the case.
Q: What are request for production?
A: Requests for production are a written list of documents and other tangible things that one side requests the other to produce because of their relevance to the case. Requests for production are used during the discovery process to evaluate the strengths and weaknesses of the case.
Q: What is a deposition?
A: A deposition is meeting between the parties of the case and their attorneys, typically held in an attorney's office, in which one party (by or through his or her attorney) asks questions of another party or of another person with some knowledge of the case. The party or other person who is answering the questions is called the "deponent." Depositions are less formal than court, but a court reporter is present to take down a word for word account of the questions and answers and the deponent is placed under oath. Depositions are used during the discovery process to evaluate the strengths and weakness of the case. The transcript of the deposition may also be used during the trial of the case.
Q: What is a settlement?
A: Parties are often able to resolve their disputes without going to trial. In fact, most lawsuits are settled without ever going to trial. A settlement is when both parties agree on a resolution of the case that is acceptable to both parties. A settlement will only occur when both parties agree to its terms and typically involves the defendant paying some sum of money to the plaintiff in exchange for the plaintiff dismissing the lawsuit.
Q: What is mediation?
A: Mediation is an informal process in which parties in a lawsuit meet to try to settle the lawsuit. A mediator is present during this process to guide the discussion and help each side to see the strengths and weaknesses of the other side's case as well as of their own case in an effort to resolve the lawsuit in a manner agreeable to both parties. Mediation may be voluntary or ordered by the court, but a settlement will only occur during the mediation if both parties agree to settle the case.
GENERAL QUESTIONS CONCERNING EVIDENCE
Q: What is evidence?
A: Generally speaking, evidence is anything that tends to prove or disapprove an alleged fact. Evidence may include witness testimony, documents, video or tape recordings, bills and evidence of expenses, medical records, deposition testimony, and other tangible things. Evidence must generally be relevant to the facts and allegations of the case in order to be admissible at trial.
Q: What is circumstantial evidence?
A: Circumstantial evidence is evidence that is based on inference rather than documents or what a witness saw or heard. Under Texas law, a fact is established by circumstantial evidence when it may be fairly and reasonably interpreted from other proven facts. (PJC 1.7).
Q: What does the term "preponderance of the evidence" mean?
A: At trial, a plaintiff must generally prove by a "preponderance of the evidence" that what he or she is claiming happened, actually happened. This means that the plaintiff must show that it is more likely than not that what he or she is claiming happened, actually happened. Viewed in terms of a percentage, a preponderance of the evidence means it can be said that there is at least a 51% likelihood that the plaintiff's claims are true. Simply stated, this means that the plaintiff must present stronger evidence for his or her version of how the accident happened than is presented by the defendant of how the accident happened.