Posted by Jay McMillian | Jan 19, 2019 | 0 Comments



In previous articles I have published on this website, I have dug deep into the details and the semantics of how potential clients can maximize their injury claims, tactics that can be used in negotiations with the insurance company, and so forth. These previous articles have been more or less like pages from the playbook . . . how to follow a plan to achieve a certain ends. This article will be more focused on the philosophy of a personal injury case, more of a macro view that is the starting point for any potential personal injury claim. This philosophy applies whether the injury stems from an auto accident or a slip and fall. Every single potential case that walks into my office starts from this very generalized premise . . . What makes a good personal injury case?

The answer to that question is usually achieved by considering five specific criteria at the outset of any potential case.


This is is obvious and so clinical that it is an often overlooked factor in the quality of a personal injury claim, but it is a fact that the bigger the injury, the better the case. I am often asked by clients about the television and online ads they see that speak of million dollars settlements and the like. The first thing to understand about any large settlement like that is that it probably involved very quantifiable and serious injuries. What is meant by a quantifiable injury? Surgeries, fractures, tears, brain injuries, permanent disability . . .these are injuries that lawyers refer to as quantifiable. These injuries are easily diagnosed early in the claim, easily verified by medical imaging, and involve expensive corrective medical procedures. 

What would be a less quantifiable injury? Sprains, soft-tissue injuries, pulled muscles, and injuries that require more of a passive treatment plan that is speculative. These injuries types of injuries will almost always involve a personal injury claim that has less of a base value than the serious injuries discussed above. That is not to say these are not valid claims, in fact most cases will involve these types of injuries. The point is that the ultimate value of the case will be at a smaller scale. 


The second factor in determining the quality of the personal injury case is whether the accident is the cause of the injury. The legal standard that I have to meet in any case is that the accident was the legal and proximate cause of the injury. To put it in other terms, the more difficult time that you have proving that your injuries were actually caused by the accident, the more difficult it will be to achieve a large settlement or verdict. 

This relates back directly to the types of injuries discussed above. The easier it is for the doctor to "link up" your injuries to the accident, the easier it is to prove proximate cause. The injuries that are easier to "link up" to an accident are again the more serious injuries - fractures, tears, scars, etc. (it will be obvious whether you had any of the injuries before an accident vs. after an accident). The injuries that are more difficult to "link up" to the accident are the more subjective injuries like soft-tissue injuries, sprains, muscle stiffness, and the sort. The insurance company will certainly scour your medical history to try and find any link to these injuries prior to the accident. Once again, it is not to say soft-tissue cases are not valid claims, the vast majority of claims will be soft tissue cases. This is in comparison to the quality of case involving quantifiable injuries. 


The possibility of any recovery in a personal injury case rests upon one solid premise - is the other person at fault for your injury? You can have injuries, you can establish proximate cause, but if you can't show the breach of a legal duty owed to you by a third-party, then you have no case. The question to always ask is what did the other party do wrong? 

In many instances a legal duty will be established by law. This specific question will often come down to what type of case you are pursuing. Establishing fault is generally easier to do in car accident and traffic cases. There will be a police report issues that will establish who contributed to the accident, and there may possibly be a traffic ticket or citation issued for a driver who failed to adhere to any relevant traffic laws.

In slip and fall cases, establishing fault can be a little tricky. First of all, there is no law enforcement report (unless you suffered an injury that required an ambulance). Second, the owner of the premises may claim defenses that could hurt your claim such as obvious risk (you should have seen the thing that hurt you - it was obvious to see). It will be incumbent for your case to establish that the premises owner breached a legal duty owed to you. Did the premises owner not maintain the premises properly (wet floors), or identify a dangerous condition (signage), or not properly supervise the premises. 

It requires more than showing that you got hurt at a certain place, you have to show what duty was owed to you that could have prevented the injury!


Something that is as important as determining the fault of a third party is making an honest evaluation of your possible contribution to the accident. This is commonly referred to as comparative fault. Comparative fault is usually reduced to an actual percentage. A case that involves the clear cut liability of the third-party would mean that you have 0% comparative fault. These are the cases that are obviously the most desired!

What happens in cases where you may have contributed to your own injury? This would involve facts like you were running though the store and failed to see the spill on the floor that caused you to slip. Maybe if you were walking, you wouldn't have slipped or maybe the injuries would not be as severe. Maybe you were texting while driving when the other driver came across the center line and side swiped you? These are all actions that involve the principles of comparative fault. 

Comparative fault works like this at trial . . . If the jury determines that you should be compensated $100,000 for your case, but that you were also 30% at fault, then your actual damages would be $70,000 (Your award reduced by 30%, the amount of your comparative fault).


How are you going to be compensated for your injuries? Unless you have the fortune of being injured by Bill Gates or you happen to experience a slip and fall inside of an Apple Store, the essence of converting the case to cash is whether there is insurance? You can have all of the four factors mentioned above covered, but if there is no insurance of a place to get the funds, then a million dollar case is worthless. Many lawyers (myself included) have had to leave hundreds of thousands of dollars on the table simply because all sources of payment were exhausted. 

Again, the type of case that you have will be a big factor in the availability of the funds. The one big advantage usually found in slip and fall cases is that they occur on the premises of businesses and large companies that either have very large commercial liability policies or have enough funds to be self-insured. The availability of insurance is very critical in car accident claims. In the majority of circumstances, a car accident recovery may be limited to the amount of insurance carried by the at-fault driver. State minimums in South Carolina require drivers to carry at least $25,000/$50,000 (per person / per accident) of liability insurance. What happens if you are hit by someone with state minimum coverage but you have $100,000 in medical bills? A secondary source of insurance will be your own under-insured and uninsured motorist coverage on your own auto policy. Yet even with this extra layer of protection, your recovery will be limited by your own limits of coverage and the number of cars you have insured. 

The value of a case is only as good as the actual amount of money that can be recovered . . . 



As a Car Accident and Personal Injury lawyer in my solo practice, I will take all necessary steps to protect your rights and earn just compensation for you as a result of your accident. Through my efforts, I can bring about much needed financial relief to a victim who may be suffering from serious injuries and permanent disability. Being a small firm allows you to have direct access to your lawyer during this entire process, with open lines of communication as we work together towards a viable solution to your specific case. 

Being an experienced personal injury attorney, I have experience dealing with insurance companies. I also know where the courthouse is and will not be afraid to call the insurance company to the mat in front of a judge and jury if necessary.

If you or a loved one has been injured in a car accident or due to the negligent or reckless acts of another in Charleston, Summerville, Mount Pleasant, James Island, West Ashley, Goose Creek, Moncks Corner, North Charleston, or any of the other fine communities of the Low Country, and need to meet with an experienced personal injury lawyer, please contact me to set up your free case evaluation today. Let me help prevent you from being taken advantage of by the insurance company. I am serious and I am here for you! Contact The McMillian Law Firm today @ 843-900-1306

About the Author

Jay McMillian

Background I chose to build my law practice in the areas of Car Accident and Personal Injury because these areas of the law are the most accurate reflection of my values and my upbringing. Being the son of a breakfast hostess and a retired US Army Sargent turned construction worker, the values instilled upon me by my par...


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The McMillian Law Firm

Attorney Jay McMillian operates a solo practice with an emphasis on two core principles. First, to provide competent legal advice in the areas of Auto Accident and Personal Injury Law to the people he is proudest to serve, the people of the South Carolina Low Country. Second, to provide the most personal and intimate service to each and every client and give them the attention and compassion that they deserve while going through the stress and strain of negotiating or litigating an injury claim. If you live in Charleston, Summerville, Mount Pleasant, Goose Creek, James Island, Walterboro, Moncks Corner, and you or someone you love has been injured by the negligence of another, please call Jay at The McMillian Law Firm today.

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