When a child is injured, his or her parents want, first of all, to make sure their child receives the best medical care available. If the child is injured due—at least in some part—to a negligent party, most parents go through the difficult thought process of attempting to determine whether bringing legal action against the negligent party will be in the best interests of their injured child. There is a public perception that legal action or litigation can be difficult for children, and that the costs of bringing a legal action may not ultimately be worth the benefits that may result. This can be especially true in cases of molestation or abuse. To remedy this, the courts and the law in all states provide special protection to children who are involved in the litigation process. In addition, not only do some injury cases settle before a lawsuit is filed, but most that do become the subject of a lawsuit settle before a jury trial date is set with the court. This is particularly true in cases of child injury, because most insurance companies who represent the at-fault party do not want to risk an adverse jury award rising from the sympathy that child injury can produce among jury members. This distinguishes child injury cases from most adult injury cases.
Furthermore, if a child’s injury case goes to trial, the child need not necessarily have to attend the trial; he or she may be too young, or participating in an injury trial may cause undue stress by causing the child to relive his or her injury. Most juries understand that either one or both parents will attend the trial in place of the injured child, unless the injured child is capable of attending the trial. California law allows special protection to children who have to testify at trial; if they are too young, or are not old enough to know the difference between what is true and what is false, they will not be required to testify at all. Also, with the advancement of technology, the jury can meet the child through video and in high definition photographs.
When children have to testify at a trial or hearing, the trial judge will go to great lengths to make sure that neither lawyer asks the child any leading questions (questions that expect or suggest a particular answer), and that the child is not, in any way, harmed or intimidated by the questions, or treated with anything but respect. Every case is unique, and every child injury is different; your injury lawyer can best counsel you as to whether or not your child must attend should the case proceed to trial.
If a case is before trial, if during the “discovery phase” (the part of the trial when the defense obtains answers in written and verbal format) the defense attorney would like to depose the minor child in a formal “deposition” (a question-and-answer interview done under oath in front of a court reporter), the plaintiff attorney who represents the minor child has great leeway to ensure that the minor child is protected in the same way a trial judge would protect the minor child testifying in court. If an attorney for the defense tries in any way to intimidate the child, the plaintiff attorney for the child can halt the entire deposition, and make a legal motion to the court for a “protective order” protecting the minor child. In fact, in some cases of severe intentional abuse, a special judge can be hired or appointed by the court to specifically protect the child at his or her deposition.
Injured children, through their parents or guardians, hold the same legal rights of an injured adult to make a negligent party take responsibility for negligent actions that have caused the child injury. A way to have the negligent party take responsibility is to collect monetary damages against them as recompense for past and future pain and suffering, emotional damages, past and future medical and attendant care expenses, and past and future loss of income. The amount an injured child can collect in damages is not capped at any particular sum, but any monetary settlement or award will be closely monitored and protected by the court system, as discussed in more detail in the coming chapters. Also, remember that an injured child must be represented by a guardian in order to bring a lawsuit or enforce a settlement or monetary award in California (and the rest of the United States) unless the child is legally emancipated from his or her parents. However, although these actions are brought by a “guardian,” as discussed in greater detail in the coming chapters, the injured child still “owns” the lawsuit or petition: the legal action belongs to the injured child.
Mark C. Blane is a San Diego Child Injury/Accident Attorney and the managing lawyer of the Law Offices of Mark C. Blane, a San Diego, California Personal Injury Law Office dedicated to representing families of minor children injured due to the negligence of others. If you or a loved one, who is a minor child, has been injured or killed in a child accident in San Diego, please order your free copy of Mr. Blane's book, The 10 Secrets You Need To Know About Your Injury Case, BEFORE You Call A Lawyer. It is full of helpful information that will help you protect your legal rights and it normally sells for $16.95. However, it is free to all California residents, or those injured in a California accident. Also, you can check out Mr. Blane's book on California child injuries called Justice for the Injured Child available for sale; this book has become a California parent's legal survival guide to their child's California accident case.