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What Laws Govern a Personal Injury Case?



Personal injury law has developed through legal precedent

Personal injury law is a separate and distinct area of the law, unlike most other areas of the law. For example, criminal law, tax law, and bankruptcy law base their rules in statutory authorities, such as penal codes, the federal tax code, or the federal bankruptcy code. However, personal injury law has developed in a very different manner to achieve the body of law that we have available today. Instead, the body of personal injury law has grown through court cases and the reported decisions achieved and published in those cases. This body of prior case law is referred to as legal precedent.

Legal treatises and state statutes provide further sources of authority

Another source of personal injury law is the legal treatise. Legal treatises are like textbooks or authoritative texts written on particular subject matters or topics usually by legal scholars or professors. Many U.S. states have also codified the body of personal injury law in their particular jurisdictions through written statutes. Even with these state statutes and treatises available, however, court case decisions are still the primary source of personal injury law in most contexts.

Prior case law is cited to bolster a party's asserted legal position

Legal precedent is useful for attorneys in their personal injury practices or for parties prosecuting their personal injury cases on their own. More specifically, prior case law is utilized by parties to bolster a claimant's personal injury case, whether through informal negotiations, formal pleadings or memoranda filed in court, or arguments made in hearings or at trial by counsel. For example, often during settlement negotiations, the counsel, insurers, and/or parties involved will refer to prior similar court cases decided in a particular state jurisdiction based on issues like those presented in their case. Often, case law is cited on issues involving fault or damages in order to advance a party’s articulated position.

Parties must disclose favorable and unfavorable case law

Predictably, case law is cited by parties when it is favorable to their particular legal position or view on an issue. Yet, court rules and ethical requirements also require the disclosure of adverse or unfavorable case law and decisions by attorneys in certain situations and contexts, as well. Because counsel is required to be candid and forthcoming in their disclosures to the court or tribunal, counsel must equally disclose unfavorable or adverse case law authorities in their pleadings, briefs, and oral arguments.

Such a practice and requirement for fulsome disclosure ensures and builds into the system a measure of integrity and credibility for the attorneys. The disclosure requirement also instills a measure of public confidence in both the legal system and the advocates participating in it. In addition, the citation of adverse or at least neutral authorities helps to build the body of available case law and provide material for making future claims that the law should stretch, abridge, modify, or adapt in a particular way in later contexts.