Delaware Personal Injury Law

Whether an individual becomes victimized through a retailer or restaurant's negligence, medical malpractice or an automobile accident that renders people incapable of working during an extended period, there might be justification for a personal injury lawsuit wherein others are deemed responsible and ordered to pay compensation. Though judicial systems are similar nationwide, Delaware does differ in several aspects.

In What Jurisdiction Will I File My Lawsuit?

Civil litigation can be filed in the county where the incident occurred or in the county where the suffering party resides. In Delaware, which court handles the lawsuit depends upon the amount of compensation the injured person—the plaintiff—is requesting. Litigation involving up to $5,000 in damages can be filed in either Court of Common Pleas or Superior Court; Superior Court is the required venue for lawsuits with in excess of $5,000 damages requested.

How Quickly Must I File the Lawsuit?

For personal injury accusations in Delaware, plaintiffs are permitted two years from the time the incident occurred to pursue litigation.

What Is the Procedure?

First, the plaintiff prepares and files the lawsuit—legally, this document is called the complaint. The individual, business or organization that is the subject of the litigation is permitted 20 days in which to prepare a response. The defendant's response sometimes will incorporate a counterclaim—an allegation that the plaintiff caused any injuries, that the defendant was harmed due to the plaintiff's negligence and that the plaintiff should be forced to financially compensate the defendant. The plaintiff will be permitted to answer the counterclaim.

How Will Damages Be Determined?

The lawsuit can ask for reimbursement for medical expenses and compensation for losses ranging from income to future earnings and additional matters. Additionally, plaintiffs can request punitive damages—compensation for pain and suffering or punishment. There is no financial limitation on punitive damages, though medical malpractice punitive damages are awarded only when the plaintiff proves malicious intent or misconduct. Delaware is a "comparative-fault" state, which means that a jury can award compensation if it determines that the plaintiff was up to 50 percent responsible for the accident.

Preparing for the Trial

As both sides prepare their lawsuits, they exchange information through a process known as discovery; any requested information or evidence must be disclosed. Interrogatories—questions that the other side must answer honestly—often are exchanged as well. Many times depositions, which is out-of-court oral testimony from witnesses, will be taken. Oftentimes the plaintiff must undergo physical or mental examinations.

Alternative Dispute Resolution

The overwhelming majority of the state's lawsuits are settled before trial, often through arbitration, mediation or neutral assessment. All three mechanisms involve appearing before a neutral individual; arbitrators hear cases and decide, while mediators attempt to guide the parties toward an agreement. A neutral assessor formulates a non-binding evaluation of the litigation that oftentimes can help motivate a resolution.

Going to Trial

The trial commences with the selection a jury to hear evidence and decide the verdict. Both sides present evidence in hopes of convincing jurors to issue a favorable verdict. Generally, verdicts must be unanimous, though both sides can stipulate at the beginning of the trial that they will accept a decision upon which a majority of jurors agree. Either side can appeal the verdict, and in personal injury litigation, the amount of damages can be appealed as well.

How Much Will It Cost?

Many litigators in personal injury lawsuits work on a contingency basis—their compensation comes from damages awarded in the case. Delaware limits contingency fees to 35 percent for the first $100,000 in damages, 25 percent for the next $100,000 and 10 percent thereafter.

Contact an Attorney

This article is a general overview of personal injury law in Delaware. For specific questions, consult a local attorney.

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