Part 1
Understanding Negligence

  1. 1
    Learn the elements of a negligence claim. A successful suit for negligence has four elements. You must prove each of them in a lawsuit in order to get compensation:[1]
    • The defendant owed you a legal duty. You cannot recover compensation from someone for negligence if that person did not owe you a legal duty.
    • The defendant breached that duty. You will have to show that the defendant failed to satisfy his or her duty by doing something or failing to do something.
    • The breach caused your injury. In other words, the defendant’s actions or inactions caused your injury.
    • The breach caused damages. You were harmed as a result of the defendant’s actions or inactions.
  2. 2
    Identify a legal duty owed to you. Legal duties can be created by law. For example, a business that invites people to come in and shop owes a duty of care to its customers. A doctor also owes a duty of care to her or his patients.[2]
    • If you are driving a car, you owe the passengers and other people on the road a duty to exercise reasonable care when driving.[3]
    • Not everyone owes you a legal duty, however, even if you think they “caused” your injury. For example, if someone throws a bag of potato chips out of their car window, which causes a bicyclist to swerve, which causes a dog to start barking loudly, which startles you and causes you to drop your child, then you probably can’t claim that the car driver owed you a duty. It was not foreseeable that throwing a bag of chips out a window could potentially harm someone standing down the street.
  3. 3
    Understand a breach. In negligence suits, the duty will be breached by failing to exercise reasonable care. Reasonable care is the care a person of ordinary prudence would exercise in the circumstances.[4] A person driving a car owes passengers and other drivers a duty to drive with reasonable care.
    • If the person who owed you a duty is a professional—say a doctor—then he or she owes you a duty of care based upon what a reasonably competent professional in the field would exercise under similar circumstances.[5]
  4. 4
    Understand causation. If the defendant failed to show reasonable care to you, he still might not be liable for negligence if his breach did not cause your injuries, no matter how reckless he may have been.[6] In many medical malpractice cases, you will need expert testimony to create the causal link between your doctor’s actions and your injury. There are two types of causation:
    • Cause in fact: The way to find the “cause in fact” is to ask, “But for the defendant’s action, would I have been injured?” If the answer is “No,” then you have identified the cause in fact.[7]
    • Proximate causation: After finding the cause in fact, a court needs to decide whether or not the injury was foreseeable to the defendant. This is the “proximate causation” test. If the defendant could not have foreseen that her actions would have caused the injury, then there will be no causation.[8]
  5. 5
    Identify your injury. The defendant’s failure to use reasonable care must have caused you injury. If a doctor order the wrong treatment but discovers his mistake before you are harmed, then you do not have a compensable injury.
    • Injuries are often physical. They can include disability, pain and suffering, and loss of consortium (which means the loss of the ability to have an intimate relationship).[9]
    • Some states will allow you to recover for emotional distress in a negligence suit. Depending on your state, you may be required to show that you suffered a physical injury or at least some physical impact as well. However, some states allow plaintiffs to recover for purely psychological damages.[10]
    • You may also be able to recover lost wages and money spent on medical care in a negligence suit.[11]
  6. 6
    Hire a lawyer. Negligence has many nuances, depending on the facts of your situation. No two cases are alike, and the evidence you will need to prove negligence will depend on the facts of your case. You should try to meet with an attorney to discuss your situation. Some attorneys offer free or reduced-fee initial consultations. During the consultation, you can talk about whether your case has merit.
    • To prepare for your consultation, gather all documents in your possession about your injury: medical records, police reports, insurance information, etc. Make copies to show the attorney.[12]
    • If you decide to bring a lawsuit, then you should hire an attorney. An attorney will know how to effectively gather evidence of negligence and how to bring a strong lawsuit on your behalf.
    • If costs are a concern, then realize that many personal injury attorneys will represent clients on “contingency.” Under this arrangement, the attorney will not get paid a fee unless you win your lawsuit.[13] Typically, the attorney will take 33-40% of your damages award.[14] You will still be responsible for court costs, such as fees related to filing, court reporters, and expert witnesses.

Part 2
Gathering Evidence of Negligence

  1. 1
    Write down your memories of the accident. As someone who was injured, your testimony is evidence of some of the elements of negligence. As soon as you can, sit down and write everything you remember about the accident. Focus on:
    • What happened: who did what and when.
    • What you were doing: did you contribute at all to the injury?
    • Witnesses: try to remember who might have seen the incident.
  2. 2
    Take photographs. If possible, you should take photographs of the area where you were injured. If you were in a car accident, have someone take photographs of the street, the cars, and the stop signs. If you fell in a parking lot or a store, then return and take pictures.
    • Try to get pictures from many different angles.[15] Also, take pictures as soon as possible after the accident.[16]
    • Remember to take color photographs of your injuries.[17] Take them as soon after the accident as possible.
  3. 3
    Seek medical help. If you seek immediate medical treatment, then your medical records will also serve as critical evidence.[18] You should try to get treatment from an M.D., as opposed to a chiropractor or someone who specializes in non-mainstream treatments.[19]
    • Hold onto all medical records as well as all medical bills. Holding onto your bills is a key part of proving the amount of economic damages you suffered.
  4. 4
    Find witnesses. Witnesses are important since they can back up your version of events. A witness may also have seen things you didn’t see. Ideally, you would have gotten the names of witnesses while at the scene of the accident.[20]
    • If you didn’t speak to anyone at the scene of the accident, then you can check police reports. A witness may have spoken to the police.
  5. 5
    Locate evidence you already have. Before even meeting with a lawyer, you probably have some evidence of each element of negligence. For example, you probably have proof of damages. This proof can be in the form of medical records, therapist records, your journal entries, etc.
    • You also probably have proof of a legal duty. For example, your testimony that you were in the proximity of the defendants can show that they should have known that their actions could harm you. This foreseeability would help establish a legal relationship.
    • Also, you may have medical records that show you were a patient of a doctor or prescription drug bottles that show you were a user of a particular medicine. This evidence helps establish a legal duty owed to you by the doctor or pharmaceutical company.
    • You may also have some proof that the defendants breached the duty. For example, your written memory of what the defendant did or did not do can serve as evidence of a breach of the duty of reasonable care.
  6. 6
    Identify all defendants. To build a negligence case, you need to identify those people who you think caused your injury. Defendants could include anyone in the operating room, if you were injured in surgery. Or it could be the owners of a store if you slipped and fell in the store or in the parking lot.
    • Cast a wide net. Remember, negligence is a breach of a duty of reasonable care. Often, the person who breaches that duty is a decision-maker in a business or organization. For example, if you slip in an icy parking lot, you might think to hold the store owner liable for your injury. But the store owner may not use salt on its parking lots because of a decision made at corporate headquarters. This decision, itself, could be negligent.
  7. 7
    File a lawsuit. A lawsuit is initiated by filing a formal complaint in court. The complaint will allege the circumstances surrounding the lawsuit as well as your negligence cause of action. Filing a lawsuit helps you start the “discovery” process, which allows you to request information from the other party.
    • Your attorney should draft the complaint and file it for you in court. Your attorney will also arrange to have the complaint served on the defendants along with a summons. These documents serve as notice on the defendants that you have filed a lawsuit. Most notices are served using the sheriff or a professional process server. You will probably pay for the cost of service (between $20-100).
    • If you are proceeding without an attorney, then you will need to draft your own complaint. Many states have forms you can fill out to initiate a suit. For example, California has a form complaint here that you can fill out. Check to see if your state has forms you can use. Often, they are published on your state Supreme Court’s website.
    • A properly drafted negligence complaint will allege the facts as you understand them and then identify “Negligence” as one of its counts.
  8. 8
    Start discovery. After a lawsuit has been filed, each party is able to request information from the other party. The discovery process is critical for getting the evidence you need to prove negligence. There are many discovery techniques available:
    • Requests for Production: You can request documents in the custody or control of the other party. For example, you may try to show that corporate headquarters told your local fast food franchise how hot to brew its coffee. If you were burned by the coffee, you may want any document related to policies regarding coffee.
    • Interrogatories: You can also request that the other party answer written questions. These are called “interrogatories” and they are a good way to get information out of the defendant. For example, you can ask if a defendant has a written policy of shoveling a parking lot. You can also ask for the names of the individuals who shovel. This website has sample interrogatories for various negligence suits.
    • Requests for Admission: You can use these strategically. You ask the defendant to admit to certain facts. If the defendant doesn’t deny them, then you can get the facts admitted at trial. This website has sample Requests for Admission you can use as templates for crafting your own.
    • Deposition: An oral questioning is called a deposition. It is usually taken under oath in front of a court reporter.[21]
  9. 9
    Hire an expert witness, if necessary. You may need an expert witness to help establish causation. This is particularly true in medical malpractice cases. The expert will testify that the defendant’s actions fell below the required standard of care. Experts are not used in every case; rather, they are necessary when the average juror cannot rely on his or her own experience to determine if the defendant’s conduct was unreasonable.
    • Your attorney will know where to find an expert. Experts are usually professionals who have practiced in the same field as the defendant.
    • You will need to pay for the expert. Even in contingency fee cases, the client usually has to pay for the expert. Expert witness testimony can cost around $250 an hour for non-medical experts and over $550 for medical experts.[22] You will also need to pay for preparation time and for any depositions that the expert sits for. In total, an expert witness can cost over $10,000.
  10. 10
    Defend against a motion for summary judgment. Depending on the facts of your case, the defendant may file a motion for summary judgment. Essentially, the defendant will argue that there are no issues of material fact in dispute, so the case can be decided by the judge on the basis of the law.[23]
    • In a negligence case, the defendant may argue that he or she did not owe you a duty. Alternately, the defendant could argue that their conduct, as alleged, does not fall below the required standard of care.
    • Your attorney will defend against a motion for summary judgment by arguing that a trial is necessary because whether the defendant owed you a duty or did not use reasonable care is not clear-cut and only a jury can decide it.
  11. 11
    Participate in alternate dispute resolution (ADR). You should be aware that you may participate in ADR rather than go to trial. The most common forms of ADR are negotiation, mediation, and arbitration.
    • In negotiation, you and the defendant try to settle your claims, usually with your lawyers involved. Settlement will help the parties avoid trial and come to an agreement on the amount of money you should be compensated.
    • Consider mediation. In mediation, a third-party neutral listens to each party state its case and then identifies strengths and weaknesses in each party’s case. The mediator also proposes areas of agreement between the parties. The mediator does not decide the case. Rather, the mediator works with the parties to come up creative, mutually-satisfying solutions.
    • Consider arbitration. Arbitration is like a trial, except you present evidence to a private party instead of a judge. Arbitration has many advantages for large corporations: principally, the proceedings are private and the process may be less expensive. However, as a plaintiff, you may not want to pursue arbitration. Although you may resolve the dispute faster, arbitration can have downsides. For example, you will probably give up any right to appeal.

Part 3
Proceeding with Your Negligence Lawsuit

  1. 1
    Select a jury. You will select jurors from the pool of available jurors called into court on any given day. To identify good jurors, the lawyers will ask them questions, in a process called “voir dire.”
    • You will want to identify jurors who are prejudiced against your case. Prejudice could take many forms. For example, in a medical malpractice case, some jurors may fear that a large verdict for you will impact their ability to secure medical care.[24] If you are suing a store owner, jurors may fear that the store will shut down if you win your lawsuit.
    • Your attorney can draw out prejudices by asking jurors if they know the defendant, have done business with the defendant, or have family members who work in the same field as the defendant. If any of these are true, the juror may be biased against you.
    • Alternatively, you may present the case to the judge. In a jury trial, the judge decides questions of law while the jury decides facts. In a bench trial, the judge decides all issues. Typically, however, both parties must agree to a bench trial. If one party requests a jury, then there usually is a jury trial.
  2. 2
    Deliver opening statements. In the opening statement, your attorney highlights the evidence he will present to prove negligence. Your attorney’s opening statement is not itself evidence. Instead, the opening statement lays out a roadmap of the evidence to be presented.
    • An effective opening statement will be under 15 minutes.[25]
    • Your attorney will also disclose “bad facts” in the opening statement.[26] A bad fact is anything the defense would want to bring to the jury’s attention because it makes the defense case much stronger. For example, if you were speeding yourself when you got struck by a car, then your attorney can disclose this information to take the “sting” out of it.
  3. 3
    Present evidence of negligence. As the plaintiff, you will present evidence first. You will present your evidence of negligence. This evidence will take the form of witness testimony and documentary evidence.
    • You will be called as a witness. Your testimony can be critical in establishing that the defendant owed you a duty. Also, you can establish what actions the defendant took or did not take. You will be limited to testifying about what you saw, heard, and physically felt. You cannot offer a conclusion that the defendant was negligent.
    • Your attorney will also call an expert witness, if necessary. In a medical malpractice case, the expert will testify as to what treatment a competent doctor would have given in the situation. Then, the expert will compare your doctor’s treatment to that standard. Unlike a lay witness, an expert may offer an opinion, i.e., that your doctor’s treatment fell below the required standard of care.[27]
    • Expert testimony may also be necessary to establish causation. If you sue a pharmaceutical company, for example, expert testimony may be necessary to link the medication to any illness or disorder you suffer from. Only an expert can speak authoritatively on whether the drugs caused your injury.
  4. 4
    Cross-examine witnesses. Your attorney will have the opportunity to cross-examine the defense witnesses. Your attorney will try to impeach the witness with a prior inconsistent statement or otherwise try to show gaps in the witness’s testimony.
    • Your attorney will also question the defense expert witness. If you have an expert, then you should expect the defendant to have one as well. Your lawyer will try to undermine the expert by questioning his credentials and by asking him about the fee he will be paid for testifying. Your lawyer may also try to impeach the expert through use of an expert treatise that contradicts the testimony given by the expert.
  5. 5
    Deliver a closing argument. The closing argument is your lawyer’s chance to explain how the evidence shows that the defendant was negligent. To be effective, your lawyer will rely on the jury instruction for negligence. She will try to “link up” the evidence presented during the trial to each element of a negligence claim: duty, breach, causation, and damages.
    • In a bench trial, the court will often request that the attorneys write briefs. These briefs are legal arguments which discuss the evidence and other cases that are controlling legal authority.
  6. 6
    Wait for the verdict. In a jury trial, the jury will retire for deliberations. In about half of all states, jury verdicts for negligent suits do not have to be unanimous. Instead, a plaintiff can prevail if a supermajority of jurors decides for her.
    • For example, if there are 12 jurors, you may only need nine or 10 in order to win.
    • In a bench trial, the judge may take the issue under advisement and issue a written opinion at a later date.

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