Unlike many other law areas, personal injury laws are unique. For instance, criminal law is based on penal codes; tax law is based on the federal tax code. However, laws governing personal injury are developed in quite a different way. The main body of personal injury law has developed through decisions of past court cases, which is referred to as legal precedent.
Further Authority Provided by State Statutes and Legal Treatises
Apart from legal precedent, the authority of personal injury law is based on state statutes and legal treatises. Most states in the United States have codified personal injury law for their jurisdictions, which are called statutes. On the other hand, legal treatises are authoritative texts or books written on certain topics or subject matters by legal experts. However, even with state statutes and legal treatises, legal precedent will be the main factor used in deciding most personal injury cases.
Asserting Position through Legal Precedent
Most personal injury attorneys use legal precedent for asserting their legal stand in their cases. A prior case law can be extensively used for strengthening the case, and can be stated during negotiations or during formal proceedings of the court. For instance, during negotiations for a personal injury settlement, the adjuster, the counsel, or one of the parties involved will often refer to the decision of a similar court case in the past where similar issues were present in the case. A case law is often cited for advancing the party’s position on issues that involve damages or proving fault.
Disclosure of Case Laws that are Favorable and Unfavorable
Obviously, the party will be citing a case law that is favorable to their legal position on the issue. However, ethical requirements and rules of court require disclosure of unfavorable case law as well, for certain contexts and situations. You just cannot ignore legal history just because it does not assist you in your case. That would be irrational and legally ignorant.
The other side may in turn even prevent some cases that are deemed ridiculous to the court in the first place. If you know that legal precedent and perhaps logic does not suit your case, then this is a case that perhaps should not see the light of day. You may want to settle out of court if you can convince the other side that settling for a low figure is the right move to make to put this case behind them. This is the time to be very humble though because if this does not work out taking this case to court may be a quick victory for the other side.
And then you and your legal representative realize everything was for naught and you are compelled to walk away with nothing to show for your efforts. Not even gas money!