Badger Lawyer's Personal Injury FAQ's

What are the “elements” of a cause of action?

Every cause of action has “elements” that have to be proved. “Elements” is a legal term meaning “required piece.” Think of it like a jigsaw puzzle. If you don’t have all the pieces, you don’t have the picture. Take negligence for example. The four elements are duty, breach, causation and damages. If even one piece is missing, you don’t have a case. Very often, in lawsuits, defense attorneys will focus on only one minor element, trying to knock it out, because if they can do that the whole case sinks.

What if I am partly to blame?

In general, the amount of your damages will be reduced by the percentage of blame that you share for your injuries. So, if your damages are determined to be $100,000, but the jury thinks you were 40% to blame, you would only receive $60,000.

If you are more to blame than the person you are suing, you cannot recover from them at all. This is true if you are suing more than one person as well. So, if you are 20% to blame, and one of the other parties is 10% and the last one 70%, you can only recover from the 70% party.

Finally, if a defendant is found 51% or more at fault, they can be forced to pay the total allowable award (the verdict amount minus your fault, including the fault of lesser defendants). If the defendant is less than 51% at fault, he can only be required to pay his portion.

What is the statute of limitations?

The law believes that individuals should have an opportunity to bring their lawsuits, but the law also believes in the “doctrine of finality.” That means that you can bring your case, but only if you bring it in a timely manner. If you wait too long, it will be barred by the statute of limitations, which is basically just a deadline for filing your complaint.

Statutes of limitations vary from cause of action to cause of action. It is very important if you have an actual case to get a legal opinion about when your statute of limitations runs. In the typical case, the statute of limitations is three years. In many cases, the deadline is two years. In some cases, it is one, and others it is six. In cases against the government, you have to file a document called a Notice of Claim within 120 days of the incident. As you can see, the deadlines vary widely.

Another question that has to be answered is when the time starts running. It does no good to have a deadline, if you don't know when to start counting it from. In most cases, the deadline is pretty straightforward. If you have a car accident, that's the day that the clock starts ticking. But if you have a car accident and end up in a coma or are otherwise completely incapacitated, the deadline may not start running until after you recover, or until a guardian is appointed to proceed on your behalf. If you are under the age of majority, the deadline doesn't start running until you reach that age. If something was done to you (the typical example is a piece of gauze left inside you during surgery) that you don’t know about, the "discovery rule" often prevents the clock from starting until you discover the wrongdoing.

Many factors can affect the statute of limitations. The safest thing you can do, aside from consulting an attorney, is to file your complaint as soon as possible after the harmful event.