Friday, October 27, 2023

Alternatives to Litigation in Personal Injury Cases


Personal injury cases can be emotionally draining and financially taxing for all parties involved. Traditional litigation is often considered the default method for resolving these disputes, but it is typically a lengthy process. However, alternative forms of dispute resolution can help streamline the process, reduce costs, and in some cases, offer more control over the outcome.

The first alternative to look at is mediation. This is a voluntary and informal dispute resolution process where a neutral third party, the mediator, facilitates communication and negotiation between the parties involved. Unlike a judge in litigation, a mediator does not make decisions or rulings. Instead, they help the parties reach a mutually acceptable agreement.

Mediation is a viable option in personal injury cases when both parties are willing to engage in open and constructive dialogue. This option is especially useful when there is a desire to preserve relationships, such as in workplace accidents or disputes between neighbors. Additionally, it is often faster and less expensive than litigation, making it a cost-effective alternative.

Arbitration is another alternative. Compared to mediation, this is a more formal process where the parties present their cases to a neutral arbitrator or panel of arbitrators, who then make a decision. This decision is typically binding, meaning the parties must abide by the arbitrator's ruling. Although the losing side may have the option of appeal, this is often unsuccessful.

Arbitration is a suitable alternative to litigation when both parties want a resolution but cannot reach an agreement through negotiation or mediation. It offers a faster resolution than traditional court proceedings and can be less confrontational. Additionally, it is not public. In the presence of contractual disputes or mandatory arbitration clauses, personal injury cases must go through arbitration.

Last, settlement negotiations involve the parties and their attorneys engaging in direct talks to reach a mutually agreed-upon settlement. This process can occur at any stage of a personal injury case, even before a lawsuit has been filed (pre-litigation settlement).

Settlement negotiations are a flexible and often cost-effective way to resolve personal injury disputes. They are suitable when both parties are open to compromise and want to avoid the time and expense associated with litigation. Many personal injury cases are resolved through negotiated settlements, allowing the parties more control over the outcome.

When assessing alternatives to litigation in personal injury cases, several factors should be considered, including the parties' willingness to cooperate, the complexity of the case, the cost and time involved in each alternative, and the enforceability of the agreement.

First, both parties involved in a personal injury case must be willing to engage in the chosen alternative dispute resolution process. If one party is uncooperative, the mentioned methods may not be effective.

Second, the parties must consider the costs and time involved in each alternative. While some methods may be quicker and more cost-effective, they may not provide the same level of recourse as litigation. Additionally, some cases, such as those involving complex legal or factual issues, may be better suited for traditional litigation, where formal discovery and court procedures can be employed.

Furthermore, the parties must ensure that any agreement reached through alternative methods is legally enforceable. This may require court approval or other formalities, depending on the jurisdiction.

In a case of personal injury, the parties should always consult with an attorney experienced in alternative dispute resolution methods to assess the suitability of each approach for their specific case.

Each alternative to litigation has its own advantages and disadvantages in personal injury cases. Choosing the right approach depends on each case and the willingness of the parties to cooperate. Consulting with an experienced attorney is crucial in making an informed decision about which method is most suitable for achieving a fair and efficient resolution to a personal injury dispute.

Friday, October 13, 2023

A Look at the Tort of Negligence

 According to Oxford Languages, a tort is a wrongful act or infringement of a right leading to legal liability. The doctrine of negligence as a tort emphasizes that an individual should be liable in instances where they caused harm to another individual under careless circumstances. The doctrine of negligence is founded on the idea that both individuals and institutions have a duty of care toward people, so they have the responsibility or obligation to act with reasonable care. When individuals fail to exercise their duty of care toward other people, this might result in a personal injury dispute, requiring that the defendant compensate the plaintiff.

However, before the defendant is deemed negligent, the plaintiff is obligated to prove the existence of specific elements, otherwise known as the five elements of negligence. The case of Brown v. Kendall laid the framework for the principle of being a separate tort in the United States. Also, this decision emphasized the fact that there is a link between a defendant’s failure to fulfill their legal duty to the plaintiff and any proximate damage that the plaintiff suffers.

So, to prove that a defendant has been negligent in carrying out their duty of care to the plaintiff, the plaintiff must prove that the defendant owes them a duty of care. In a negligence dispute, the court often asks the question, “What would a reasonable person do?” This means that the defendant has a duty to show the same level of care an average person would display under such circumstances (that led to the injury).

Note that there are instances when the “reasonable person” test might not suffice. Certain professions have their own duty of care. For example, in the medical profession, a doctor is expected to exhibit a duty of care consistent with that of every trained medical professional.

Further, the plaintiff must prove that the defendant breached that duty and the breach was a direct cause of their injury. For instance, school administrators have the duty of care to ensure that their students are safe within the school premises. This will imply that the school is obligated to provide security personnel at volatile points within the school property. Failure of a school to take such measures might amount to a breach of the duty of care.

Also note that if a defendant breaches a duty of care, but that breach does not directly cause harm or injury to the plaintiff, the defendant will not be liable for negligence. For a person to be liable, their actions must be the proximate cause of the plaintiff’s injury. For example, if a construction company refuses to put necessary safety measures on their construction site and a visitor comes onto the site and dies of cardiac arrest, the family of the deceased cannot sue the construction company for negligence.

Also, the plaintiff must prove that the defendant should have foreseen the likelihood of the injury happening. This means the likelihood of the harm happening must have been foreseeable to any reasonable person. This is sometimes referred to as the foreseeable doctrine. The foreseeable doctrine posits that a reasonable person should be able to foresee that their actions might result in a chain of events that might harm the plaintiff.

Finally, for the defendant to be held liable for negligence, the plaintiff must prove that they have suffered harm or injury that is actually worthy of compensation. The injury or harm must be such that the plaintiff should be compensated for lost wages, emotional distress, pain and suffering, or medical bills from injuries.

Tuesday, January 31, 2023

Benefits of Weight Training


John Biernat

A member of the State Bar of Michigan, John Biernat has served as an associate attorney with Padilla Law Group in Birmingham, Michigan, since 2019. When he is not representing clients in personal injury cases, John Biernat enjoys weight training.

Weight training, recommended by the American Heart Association for maintaining overall cardiovascular health, can play a key role in physical health. Consistent strength training that uses free weights or body weight can increase bone density, resulting in stronger bones with a lower risk of fractures.

Weight training also increases muscle mass, reversing the natural decrease with age. Because muscles burn three times as many calories as fat, building muscle supports healthy weight maintenance.

Strong muscles help improve balance, which can reduce the risk of fall-related injuries, especially among older adults. Strong muscles also increase resistance to general aches and pains. Weight training even makes joints stronger and more flexible, reducing symptoms of painful conditions such as arthritis.


Alternatives to Litigation in Personal Injury Cases

  Personal injury cases can be emotionally draining and financially taxing for all parties involved. Traditional litigation is often conside...