Last month I talked about what to do at the scene of a crash after a motorist turned left in front of you and you crashed. This month, we’re assuming you want to pursue a personal injury claim against that motorist. What’s involved? What should you do? Do you need a lawyer? What pitfalls are there in handling it yourself?
As soon as a crash occurs many legal concepts, events and contracts kick into play. First, if you were not at fault and someone else was, a “claim” arises. A “claim” is your right to pursue “damages” for someone else’s misbehavior. Typically a claim is made against the negligent person’s insurance company, but sometimes it has to be made against YOUR insurance company.
In fact, numerous insurance contracts that fire up include your auto/motorcycle policy including its liability provisions, “medical payments” coverage, uninsured/underinsured motorist coverage and more. Your health insurance policy may be triggered as well as insurance policies from your employer such as short or long term disability and benefits such as vacation or sick leave. Each of these can impact your claim, and your ultimate recovery.
The question I hear a lot is “Can’t I do this myself and not pay a lawyer a third of the money?” The answer is” .. Well .. Yea, of course you CAN. but why would you want to?” Just what do lawyers DO anyway?
As a personal injury lawyer, what I really “do” is a large number of relatively simple things – followed by some complex analysis and negotiations based on almost 25 years of experience handling hundreds of similar claims. When you hire a lawyer, it’s this experience, analysis and negotiating skill you are paying for. You are also paying the lawyer to be a buffer between you and the insurance carrier as well as your advocate, confidante, information organizer, adviser, appraiser and counselor.
To get your claim started hopefully you read last month’s article and got all of the information from the other driver, witnesses, your care providers and others and provided that to your lawyer! This certainly makes MY life easier, [.but we’re very used to gathering this information too!]
In the beginning of a claim, I am a paper gatherer and a fact gatherer. I talk to the witnesses, get statements, get the police report and photographs, go to the scene and take my own photos or videos, get the physical evidence, gather up records – from the EMT’s, the Emergency Room, your family doctor, your specialist, your physical therapist, your surgeon. I make sure I get ALL the records – cover to cover. This is critical in presenting your claim.
I need to nail down the facts of your claim as quickly as possible and analyze any liability issues. In motorcycle claims, the insurance company frequently argues that the motorcycle operator did something wrong, or was “contributorily negligent.” Under Ohio law a jury could determine that your actions were part of the cause of the crash. A jury would assess a percentage of fault to each party. If your degree of fault is MORE THAN 50%, you LOSE the case. If your percentage of fault is 50% or less, you still win, but the amount of money you would win is reduced by that percentage. Thus, if you win $100,000, but a jury says you are 40% at fault, you would only get $60,000.
This makes the lawyer’s initial factual investigation critical. The insurance adjustor will be tracking down witnesses immediately. We know that witnesses tend to identify with one side or the other and that early discussions are important for preserving their memories. That’s why I try to contact any witnesses as soon as a case comes in.
While I am gathering facts and paper, I expect you to go about the business of healing and getting better. I tell clients that there are several important things they need to do. Do what your doctors tell you to do. Keep your appointments. Take the medicines. Do the exercises. Follow up if it keeps hurting. Keep a log – a diary – that catalogs and describes your recovery. Describe your pain vividly. If appropriate, use words like burning, throbbing, radiating, aching, shooting, fire-like.
As you heal, your lawyer remains in contact with the insurance “adjustor.” An “adjustor” is professional employee of an insurance carrier who is specially trained to investigate and negotiate claims. She or he has a career which requires the spending as little of the insurer’s money as possible to resolve your claim! Sometimes adjustors are nice, sometimes mean but they are always looking for ways to minimize the amount of money the insurer will spend – that’s their job, and they do it well.
A claim is a “thing” that has a value in a special marketplace. Just as you might not have a clue as to what makes an old painting, a 1965 Fairlane or a Pete Rose rookie baseball card valuable, I would not expect you to know what makes a “claim” more or less valuable. You would be well advised to get an independent evaluation of your painting, Ford or baseball card and to NOT trust the “value” assigned by someone who wants to buy it! Part of your lawyer’s job is knowing how to properly evaluate your claim and to understand what factors make it more or less valuable.
The “value” of your claim is based on the nature and extent of the injuries caused by the crash, the treatment received, how long the recovery took or, if you didn’t get better, the extent of any permanency. Your medical bills, lost wages, property damage and other out of pocket financial losses are all recoverable. Under Ohio law, you can also recover money to compensate you for pain and suffering and other “non economic” damages. How do you determine a good “number” or value though? Is your claim worth $5,000.00 or $50,000.00?? What’s the value of a scar over your eyelid, a fractured tibia or soft tissue neck and back injuries?
Factors that make claims more valuable include blatantly painful injuries [fractures, scars, burns], obvious permanency [eye damage, hearing loss, mangled arm, leg], intense treatment [brain injury, ICU care, surgery, extensive physical or occupational therapy] and significant financial losses [large medical bills and weeks/months of wage loss].
Factors that may negatively effect value are more subtle and can include: whether you did anything wrong, the “Likeability” of the claimant and the negligent party, the amount of property damage, the location of the crash, the location of a court where the matter would be heard, the extent of broken bones or scars, rural vs. urban counties and chiropractic vs. medical care.
Once I have developed my evaluation of the case [usually a range of values], I meet with the client and discuss my evaluation extensively. The client ALWAYS has the final say – it’s his or her case, not mine. However, I will always give my very best opinion as to value and negotiation strategy. Once a strategy is agreed upon, I submit an extensive letter to the insurer which outlines the entire case – liability, treatment, damages, legal analysis – and sets forth the amount of money “demanded” by the client to settle. An organized binder of all supporting documents is also submitted.
Once your demand is out there, you have no control over what the insurer does. Typically, within a week or two I get an “offer” from the insurer – this is ALWAYS considerably lower than the “demand.” The high/low negotiation parameters are now set, and the process becomes a bit like buying a used car! Demands and offers usually continue and, hopefully, there is an overlap at some point in the process and case is settled.
In my practice, I usually settle 70-80% of all claims before a lawsuit is required. Even among those cases in which a lawsuit is filed, MOST settle short of trial. Only 1-2% of all claims ever end up in a courtroom. As a “trial” lawyer, I have taken many cases from intake to trial in many counties throughout the state of Ohio.
Always remember that your claim has a “statute of limitations” which varies based on your location and the type of claim. If you fail to file a lawsuit within the limitations period, the claim is lost forever!
So that’s it – gather all the data, review, analyze and organize it, prepare a demand and negotiate, or file and prosecute a lawsuit if necessary! That’s what lawyers do. Can YOU do this too? Of course, there’s no magic in gathering data. What you may lack is the knowledge of law, medicine and engineering/physics needed to analyze the issues and put a case together, the experience of evaluating and handling hundreds of other claims, and the negotiation skills necessary to deal with an aggressive adjustor.
Good Luck & Good Riding!
GOOD LUCK AND GOOD RIDING!