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Despite what you hear on the news, lawsuits are just plain difficult in Virginia. This is especially true when it comes to making personal injury claims based upon car accidents. The difficulty typically arises from proving “liability” or that the defendant was negligent in causing your injury. Indeed in many cases, in order to establish liability, you're required to prove facts that may simply be unprovable. 

One common instance is in car accident cases where there are pre-existing injuries. If you injure your spine in a car accident and have a history of back problems, the insurance company may refuse to pay for expenses relating to your back. Though their insured caused the accident, the insurance company believes the accident didn't cause your injuries and disputes liability.

You may be surprised to learn that if you're unable to prove “notice,” you simply won't win in Virginia.  It's that plain and simple.  (The Court typically reason that if a property owner had no notice of a dangerous condition, what could they have done to prevent it?  Therefore they are not liable for any resulting injuries.)  Given that, in many instances, when people call us even with the most serious and traumatic of injuries, if we do not believe that we can prove notice, we will ultimately have to decline the case.

I want to be clear, that when we at BenGlassLaw turn down a case because of an issue with proving liability, this does not mean that we question that you’ve suffered devastating injuries due to an accident.  It's also not because "we don't want to fight the hard fight."  It's simply because we do not want to take you through possibly years of litigation, spend thousands of dollars and many hours, only for you to be award no money from a judge or jury.  And to add insult to injury, we then send you a bill for the litigation costs for your case, which is mandated by the Virginia State Bar (we are not permitted to waive unpaid costs at the end of a case).

Because of this, when we have an initial call with a client, we are going to be upfront about the concerns that we have.  And if it turns out that we are not confident that we can prove liability, we will outright reject the case. 

What Can I do if BenGlassLaw doesn’t believe they Can prove liability in My Case?

One thing I always tell clients is if I come to learn additional facts with enough time left to file a lawsuit, I'm always willing to reconsider my position on a case (assuming there’s enough time to properly file a lawsuit before the statute of limitations runs).  That means if you're able to establish facts that after we've talked and I've rejected the case but now you believe you can prove liability, you can always reach back out to us with those additional facts so that we may reconsider taking on your claim.  If after reconsideration, we feel that those additional facts needed do prove it, then we may be able to help you out.

So What Can I Do to Try to Determine Additional Facts to Prove Liability in my Case? 

First, you can ask questions.  Whenever someone I believe will have issues with liability, I always tell them that it can't really hurt for you the injured individual to go back to the place that you were injured and ask questions.  That means being charming, and open, and simply saying, "Look, I just want to know what went wrong?"  Because you're not an attorney, and if you do it in a non-intimidating or rude way, it's quite possible that an employee or someone else might feel bad about what happened and be willing to be open and honest with you.  If they're willing to share that information that ultimately can be used to prove liability, that may help out in your case.

Second, you should always do is ask if there are surveillance videos of the location that you were injured.  If you can obtain that video or at least watch it, that may provide additional facts.  Therefore I would recommend asking for it upfront and if they refuse to provide it I would then send a letter to both the store as well as the corporate owners saying that you wish to see the letter and that you're directly asking that it be preserved and maintained because you're considering a claim.  If after you've notified a business owner that you may bring a claim, by law they are required to preserve that evidence.

Also, you should consider is hiring your own private investigator.  If you are willing to invest in your case and hire somebody that may be able to interview witnesses who are willing to talk, that investigator may come up with additional information.  Now I want to be clear that this firm would not in any way be funding or directing such an investigation, but you are certainly free to hire your own private investigator who may be able to find facts that you are not.

Of course, we don't have any private investigators at Ben Glass Law.  However, I would recommend you contacting Marivette Castellano (ph 571-277-4510).  We've worked together on cases before, and she does good work

What if I’m able to Learn Additional Facts that May Prove Liability in my Case?

If you are able to find additional information that you think may help prove your case, again you can always reach out to us.  When we get more information, again we will always be straight up with our clients, and we may end up still turning down a case.  But perhaps you've come up with something that may change our position.

What Kind of Information are we Looking For?

It's usually the common-sense information that can help prove your case.  For instance, if you were injured by a defective door and an employee says that they were aware of the defective door a week ago and told somebody to fix it but didn't.  That's the kind of evidence we are looking for.  Evidence that you can imagine would be straightforward in proving your case.

Brian Glass
Virginia personal injury lawyer selected to SuperLawyers Rising Stars List and the NTLA's Top 40 Under 40.