In the court system, the two sides in a personal injury case are known as the plaintiff and the defendant. The plaintiff is the person, family, or party who was wronged by the injury. In a car accident case, for example, the person hurt in the car accident is the plaintiff. Similarly, in a nursing home abuse case, the person who was abused in the nursing home—or their family members—would be the plaintiff.
An easy way to remember the term is to think of a personal injury claim as a formal “complaint” about the injury. The person introducing the complaint is the plaintiff.
When can family members act as the plaintiff?
Normally, the individual who was harmed is the plaintiff in a personal injury case—not their loved ones. But there are two main situations where family members can stand in and file the claim on their behalf, acting as the plaintiff:
- Wrongful death cases. When a person died rather than simply being injured, or if they later passed away from their injuries, it is considered a wrongful death claim. The family has a right to claim a financial recovery on behalf of their loss. (A family can also handle a claim for a relative who passed away for unrelated reasons—although this is not considered “wrongful death.”)
- The person is not sound of mind. If the person who was actually harmed by the injury is not capable of going to court or handling a claim, for any reason, family can do it on their behalf. For example, if a father with advanced Alzheimer’s was injured in a car accident, his adult children could potentially file the claim. Or, if a car crash victim is left in a coma, the person’s family could also handle the claim.
If the person who is injured is alive and sound of mind, in most cases it is only that individual who can file the claim. But the family often plays an important role, helping urge that individual to protect their rights and file the claim in the first place.
How does the plaintiff start a personal injury case?
To start a lawsuit, the Plaintiff must fill out the necessary forms and file them with the court. Every jurisdiction has different rules insofar as how forms should be formatted, filed, and served upon the Defendant, so it’s a good idea to let your attorney do this so you don’t miss any deadlines by filing or serving the documents incorrectly. The Plaintiff must also pay a filing fee when filing the first set of documents, and the court will then stamp the documents with the filing date.
The lawsuit does not officially begin until the Plaintiff serves the Defendant with hard copies of the documents either via a licensed process server or another person who is not a party to the action. Then, the Plaintiff must file an “Affidavit of Service” with the court.
What does the plaintiff have to prove in a personal injury case?
Unlike criminal cases, personal injury cases do not have to be proven “beyond a reasonable doubt.” They only have to be proven on a “preponderance of the evidence.” This means that if a reasonable person looks at the facts of the case, they would conclude that the plaintiff is probably right. This is a much easier standard to meet.
However, the burden of proving the case falls on the plaintiff. It is up to them to prove the facts of the case; if they cannot, then the court will likely not award any financial recovery at all. This is why it’s so important to have a good lawyer on your side.
Contact our attorneys for help today
Have you been injured? John Foy & Associates offers a free consultation with some of the most experienced and respected Atlanta personal injury lawyers in Georgia. Fill out the form to your right or call us at 404-400-4000 to get your FREE consultation today.
