3 Things a Personal Injury Lawyer Looks for Before Taking Your Case
By Guy Muller | Guy Muller Injury Law | San Antonio, Texas
Not every injury case is a case worth filing. That may sound blunt, but it is the truth, and telling you the truth upfront is more respectful than stringing you along for months before delivering bad news.
When someone calls me after a car wreck, a fall, or any other incident that left them hurt, I am already running through a mental checklist. Before I agree to represent anyone, I need to feel confident about three things: liability, recoverability, and damages. If all three check out, we likely have a case worth pursuing. If one is shaky, that does not necessarily mean we walk away, but it does change the conversation.
Here is exactly what I am looking at, why each piece matters, and how the burden of proof shapes every single one of these decisions.
What Does Liability Mean in a Texas Personal Injury Case?
Liability means proving that someone else’s negligence caused your injuries. In Texas, the injured person (the plaintiff) carries the burden of proving liability by a "preponderance of the evidence," which means showing it is more likely than not that the other party was at fault. That is the baseline for everything.
How Does Comparative Fault Work in Texas?
Texas follows a modified comparative fault system under Chapter 33 of the Civil Practice and Remedies Code. If a jury assigns you 51% or more of the fault, you recover nothing. If you are 50% or less at fault, your recovery is reduced by your percentage of responsibility.
This is where burden of proof gets tactical. It is not enough to show the other driver ran a red light. If the defense argues you were speeding or distracted, you may need to prove that your conduct did not contribute to the crash, or that it contributed less than theirs. Dashcam footage, cell phone records, witness statements, and accident reconstruction reports can all play a role.
Can You Sue Multiple Parties in a Texas Personal Injury Case?
Yes, and sometimes you should. Texas allows claims against multiple defendants when more than one party may share responsibility. Under Section 33.013 of the CPRC, a defendant found to be more than 50% responsible may be held jointly and severally liable for the full amount of damages.
From a burden of proof standpoint, each defendant’s share of fault must be established separately. If a trucking company and its driver are both named, you may need evidence against each: the driver’s logbook violations, the company’s hiring or training failures. More defendants means more evidence to gather, but it also means more paths to recovery.
What Burden of Proof Applies to Liability in Texas?
The standard is preponderance of the evidence, meaning "more likely than not." This is not the "beyond a reasonable doubt" standard from criminal cases. But "more likely than not" still requires real, admissible evidence.
What counts as evidence that may meet this burden:
• Police reports and crash reconstruction analysis
• Eyewitness testimony and recorded statements
• Photographs and video footage from the scene
• Cell phone records showing distracted driving
• Expert testimony (accident reconstructionists, engineers)
• Commercial vehicle black box data and driver logs
Evidence preservation matters too. Texas courts have recognized that spoliation of evidence (destroying or failing to preserve relevant evidence) can result in sanctions or adverse inferences. If a trucking company "loses" its driver’s logbook, that can work in your favor, but you have to act fast because preservation letters and legal holds need to go out early.
What Does Recoverability Mean in a Personal Injury Case?
Recoverability answers the question: even if we prove liability, is there actually a source of money to pay a judgment or settlement? A case can have clear fault and devastating injuries, but if there is no insurance policy, no assets, and no coverage to tap into, a verdict may not be worth the paper it is printed on.
Proving recoverability has its own burden of proof challenges. You need evidence that coverage exists, that it applies to this incident, and that it has not been exhausted or excluded.
Does Governmental Immunity Affect Personal Injury Cases in Texas?
Yes. If a government entity or employee caused your injuries, the Texas Tort Claims Act (Chapter 101 of the CPRC) controls whether you can sue at all. Sovereign immunity is the default, and the Tort Claims Act provides only a limited waiver for specific categories: motor vehicle accidents, premises defects, and injuries caused by the condition or use of tangible personal property.
The burden of proof here shifts in a meaningful way. You must prove not only that the government was negligent, but that your claim fits within one of the Act's narrow waiver categories. If it does not, the case gets dismissed regardless of how strong the evidence of negligence might be.
The Act also imposes damage caps that vary by the type of government entity. Under Section 101.023:
• State government: $250,000 per person / $500,000 per single occurrence for bodily injury or death
• Municipalities: $250,000 per person / $500,000 per single occurrence for bodily injury or death
• Other local government units (counties, school districts, etc.): $100,000 per person / $300,000 per single occurrence for bodily injury or death
• Property damage: $100,000 per single occurrence across all government types
You must also follow strict notice requirementst, or risk losing the claim entirely. Proving you met these procedural requirements is itself part of the burden. Miss the notice deadline, and the merits of your case become irrelevant.
How Does UM/UIM Insurance Work in Texas?
Uninsured/Underinsured Motorist (UM/UIM) coverage may be the most important policy your own insurance carries. Under Texas Insurance Code Section 1952.101, UM/UIM coverage is required to be offered with every auto policy. If the at-fault driver has no insurance or not enough insurance to cover your damages, your own UM/UIM policy can fill the gap.
The burden of proof for a UM/UIM claim works differently than a standard liability claim. You still have to prove the other driver was at fault (same preponderance standard), but you also have to prove that the other driver was uninsured or underinsured. That means obtaining confirmation of the at-fault driver’s policy limits, or proof that no policy existed at all.
Here is something a lot of people do not realize: UM/UIM coverage may extend to household members. If you live with a relative who has a separate auto policy with UM/UIM coverage, that policy may also be available to you, even if you were driving your own car. This is called "stacking" in some contexts, and identifying every available policy in a household is one of the first things we do on any case.
Proving that a household policy applies to your claim requires evidence of the living arrangement, the family relationship, and the policy language itself. Insurance companies will push back on this, which means the evidence needs to be organized early.
What Burden of Proof Applies to Recoverability?
You must prove that a valid source of recovery exists and that your claim qualifies under the relevant policy or statute. This is a different kind of evidentiary challenge than proving fault.
Evidence that may be needed to establish recoverability:
• The at-fault party’s insurance declarations page showing policy limits
• Your own auto policy showing UM/UIM coverage and limits
• Household member policies that may provide additional UM/UIM coverage
• Proof of timely notice to government entities under the Tort Claims Act
• Asset searches when dealing with uninsured or self-insured defendants
• Commercial insurance certificates for trucking companies or businesses
A case with strong liability and catastrophic injuries is still a problem if the at-fault party has minimum limits (0,000 in Texas) and no UM/UIM coverage exists. That is why recoverability is part of the evaluation from the very first phone call.
What Are Damages in a Texas Personal Injury Case?
Damages are the harms you suffered and the compensation the law allows for those harms. Under Section 41.001 of the Texas Civil Practice and Remedies Code, damages in personal injury cases fall into two broad categories: economic damages (things you can put a receipt on) and non-economic damages (things you cannot).
But having damages is not the same as proving damages. You carry the burden of proving both the existence and the extent of every category of harm you claim. That burden shapes everything from what doctors you see to what records you keep to what experts you hire.
What Economic Damages Can You Recover in Texas?
Economic damages include medical expenses (past and future), lost wages, loss of earning capacity, and property damage. These are the damages you can generally document with bills, pay stubs, tax returns, and expert calculations.
The burden of proof for future economic damages is particularly important. Texas law requires that future medical expenses and future lost earnings be proven with "reasonable medical probability," which generally means a qualified expert (usually a treating physician or a life care planner) must testify that these future costs are more likely than not to occur. Speculation is not enough.
What Non-Economic Damages Can You Recover in Texas?
Non-economic damages cover pain and suffering, mental anguish, physical impairment, disfigurement, and loss of enjoyment of life. Unlike medical bills, there is no receipt for these. But that does not mean there is no burden of proof.
Texas courts require evidence that non-economic damages are real, not speculative. This can come from your own testimony about how the injury changed your daily life, testimony from family members and friends who witnessed the change, medical records documenting psychological impact, and expert testimony on future pain and limitations.
There is no statutory cap on non-economic damages in most Texas personal injury cases. Medical malpractice is the notable exception. Under Chapter 74 of the CPRC, non-economic damages in healthcare liability claims are capped at $250,000 per claimant against all individual healthcare providers combined, and $250,000 per claimant against each healthcare institution (up to $500,000 if two or more institutions are liable). That means the maximum non-economic recovery in a med mal case is $750,000. But for car wrecks, truck accidents, premises liability, and most other PI cases, there is no cap on non-economic damages.
What Is the Eggshell Skull Rule in Texas?
The Eggshell Skull Rule (also called the Thin Skull Doctrine) means a defendant takes the plaintiff as they find them. If you had a pre-existing condition that made you more vulnerable to injury, the defendant is still responsible for the full extent of the harm, even if a healthier person would have walked away fine. Texas courts have consistently applied this principle, including in Darden v. City of Fort Worth.
The burden of proof here is nuanced. You do not have to prove you were perfectly healthy before the incident. But you do have to prove that the incident aggravated or worsened your pre-existing condition. This typically requires medical expert testimony showing the difference between your condition before and after the incident. Medical records from before the injury become critical evidence, not to minimize your claim, but to establish the baseline that the defendant’s negligence disrupted.
What Burden of Proof Applies to Damages in Texas?
You must prove both that the damages exist and that they were caused by the defendant’s negligence, not by something else. This is called "causation," and it is where a lot of cases get fought hardest.
Evidence that may be needed to prove damages:
• Complete medical records from before and after the incident
• Itemized medical billing statements
• Employment records, pay stubs, and tax returns for lost wage claims
• Expert testimony from treating physicians on causation and future care needs
• Life care plans for catastrophic or long-term injuries
• Economist testimony on future lost earning capacity
• Personal journals, photographs, and testimony documenting quality-of-life changes
• Testimony from family members about how the injury changed daily life
The defense will almost always argue that your injuries were pre-existing, that your treatment was excessive, or that your claimed future damages are speculative. Meeting the burden of proof on damages means building a record from day one that tells a clear, documented story.
Why Do These Three Things Matter Together?
Liability, recoverability, and damages are the three legs of the stool. Remove any one of them and the case does not stand. But what ties them all together is the burden of proof. In every section, at every stage, the plaintiff carries the responsibility of producing sufficient evidence to meet the preponderance standard.
That is why case evaluation is not just about whether something bad happened to you. It is about whether we can prove what happened, prove who is responsible, prove there is a source of recovery, and prove the full extent of your harm. That is the real work of a personal injury case, and it starts before we ever file a lawsuit.
If you have been injured and want to know whether your case checks these three boxes, call my office. The consultation is free, and I will tell you the truth about where your case stands.
Guy Muller Injury Law | San Antonio, Texas | (888) 415-1312 | guymullerlaw.com
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