The Anatomy of A Personal Injury Case A personal injury law practice differs from many other types
of law practices in that most people with personal injury
claims have had little or no exposure to attorneys before their
injury.
In this part of my practice, I have found common misconceptions
about how the legal system works, and about what people should
expect when pursuing personal injury claims. Here is a brief outline of the steps taken in the preparation
and presentation of a typical personal injury claim. This
outline describes an automobile accident case, but medical
malpractice,
defective products, and other personal injury cases follow
a similar pattern. The outline assumes that the claimant has an attorney,
but the same principles would apply to individuals who
decide to
handle
their own case. A typical case has four stages:
Stage 1: Information Gathering
Stage 2: Preparing Settlement Package
Stage 3: Negotiation and Settlement/Trial
Stage 4: Disbursement
Stage 1 – Information gathering.
There are certain basic
types of information that need to be gathered at the start
of a personal injury case. Your
attorney
needs a comprehensive understanding of the case in order
to advise you regarding the strategy that will bring you
the greatest
recovery
in the least amount of time.
The main categories of information your attorney will
need are:
- Basic Facts: Your attorney will need
to know what happened to cause your injury. This sort
of information is gathered
from
interviewing you, the investigating police officers,
and witnesses to the accident. Usually it makes sense
for the
attorney to
visit the scene of the accident to get a better
feel for what happened.
Your attorney will also get a copy of the police
accident report.
- Medical Bill and Records: Your attorney
will also request medical records and bills from the
hospital and doctors
you saw after
the accident, and pre-injury medical records
in order to respond to insurance company claims that
your symptoms
are not the
result of the accident, but rather a pre-existing
condition.
The process of collecting records will continue until
you have finished treating for your injuries. It is
essential, therefore,
that you keep the attorney informed of your progress
and
doctor visits.
- Insurance Coverage: There are many potential
sources of insurance coverage from which you might be able
to receive
compensation
for your injuries. The coverage types pertaining
to
automobile accidents fall into three categories:
liability coverage;
uninsured/underinsured motorist coverage; and medical
expense coverage (also known
as medical payments coverage or "med pay").
Determining which types of coverage apply to a
given case can be quite
complicated. Suffice it to say that sources of
potential coverage can be found
in some unexpected places. Be sure your attorney
is aware of every policy that might apply.
Your attorney will send the appropriate insurance carriers
letters to inform them that you have retained legal
counsel. The purpose
of these letters is to establish contact with the insurance
companies and ensure that they communicate with the
attorney, not you.
- Lost Wages and Other Damages: If you have missed time
from work because of your injury, your attorney will
request
that your
employer complete a form stating the amount of time
you missed and the amount of wages you lost. In addition,
you and your
attorney will need to determine whether you have suffered
losses in addition
to direct medical expenses and lost wages. For example,
if you have a permanent injury that will prevent you
from doing
certain
tasks, you might have a claim for lessened earning
capacity.
There are other types of damages for which you might
be entitled to compensation, and each case is unique.
You
will need to
work with your attorney to ensure that all avenues
of recovery are
explored.
The success of this first stage of a personal injury
case depends in large measure on the client cooperating
with
the attorney.
Because this is your case, you are the attorney's best
source of information. Good communication is important
at this stage
of the case, and will remain so throughout.
Stage 1 typically lasts until you have finished treating,
or, if you have a permanent injury that will require
treatment for some time in the future, until you reach
maximum medical
improvement
and your doctors have determined what your future needs
will be. In general it is not feasible to make a settlement
demand
until the completion of treatment or maximum medical
improvement because, when you settle, you will be required
to sign
a release
that will forever bar you from making any further claim
against the persons responsible for your injuries or
against their
insurance carriers.
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Stage 2 – Preparing settlement materials.
Once your attorney and staff have gathered all of the
information about your injuries and your damages,
they will prepare
a settlement package for the insurance companies
from whom a recovery is
sought. This package will include a narrative description
of your accident,
a discussion of the legal basis for claiming liability
against
the carriers' insured, an explanation of you injury,
treatment, and prognosis, a statement of your damages,
and a settlement
demand. The damages statement will include specific
items of economic loss such as your medical bills
and lost
wages, often
referred to as "special damages," as well as a claim
for the pain, suffering, and inconvenience suffered as a result
of your injuries. These intangible elements of damage are called "general
damages", and often make up the largest part
of the settlement demand.
In Stage 2, the goal is to present your claim to
insurance adjusters who are trained to evaluate injury
cases
and whose job is to
be skeptical. Considerable effort will go in to making
the package comprehensive and easy to read, with
copies of all
medical records,
photographs, bills, and other information the adjusters
will need to evaluate the case. A properly prepared
settlement package will demonstrate that you and
your attorneys
are willing and
able to go to court if a settlement cannot be reached.
It
is no secret that insurance companies exist to make
a profit, and no matter how meritorious a claim may
be,
the insurance
companies
will not pay unless they know they will be taken
to trial by
someone who knows how to present a case.
Stage 2 lasts approximately several weeks or months,
if the attorney is missing information needed to
complete the settlement
package.
The attorney requires a few days to prepare the package.
I then send a draft of it to you for your review.
You call
me
and let
us know if it is accurate. If so, we send it to the
insurance company.
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Stage 3 – Negotiation and settlement/trial
Insurance companies differ in the amount of time
it takes them to review the settlement package
and make
a counter
offer.
Some take weeks, others months. If they do not
call within two to
three weeks, we call them to check the status
of their review. Often times your attorney and the
insurance companies exchange
several phone calls before an offer is made.
Sometimes the insurance companies will make no offer at all
based
on their
determination
that their insured would have a good chance of
prevailing at trial. This probably happens more often
in
Texas
than in most
other jurisdictions because of certain Texas
laws favoring defendants. In automobile accident cases,
the most
important pro-defendant
law is the doctrine of comparative negligence
which can completely bar recovery against a negligent
defendant if the plaintiff
was more than 50% at fault. This rule is well-loved
by
insurance companies and is often overstated because
of a common misconception
that it bars recovery whenever the plaintiff's
negligence contributes to the accident "even in
the slightest degree."
If an offer is made, you will need to discuss it
with your attorney to determine an appropriate
response. Typically, there will be
a series of offers and counteroffers before it
can be determined
whether a settlement will be achieved. Many people
find this to be the most frustrating stage of
the process.
Lead by
insurance industry advocates and tort reformers
to believe
that the United
States is in the grip of a litigation explosion
and that juries are running out of control with
huge
verdicts, personal injury
claimants quickly learn the truth. Juries, particularly
in Houston and Dallas, have become very conservative
in the
amounts they
will consider as being “fair and reasonable” compensation.
A favorite saying of mine is that Harris County
jurors have a high tolerance for other people's
pain. We encourage
people
with
injuries to not be discouraged, but it is also
important to realize that the settlement value
of any case is
ultimately measured
by what a jury would award, not what the plaintiff
believes he or she is entitled to receive.
If settlement is not possible, your attorney will
advise you whether or not you should consider filing
a law
suit. More
and more cases are going to litigation because
the insurance companies
have become so conservative with their settlement
offers. Even so, most cases still settle before
trial.
The decision to go to trial is not one that is
made lightly. To go to trial, two issues must be
clear:
- Liability - meaning that it is clear that the
other party caused the accident; and
- Damages - meaning that you must have incurred
significant expenses as a result of the accident.
An example of liability without damages:
You are rear ended by another vehicle. You hit
your head on the steering wheel. Your bumper
is knocked
out of
alignment. The rescue squad is called
by a witness.
A paramedic examines you and determines that you have a simple
bump on your head. You do not need to go to
the hospital
nor
do you require any further
medical
treatment. Although scared out of your wits by the other driver's
carelessness, you have no permanent injury.
While you have a property damage claim, you
probably do not have a viable personal injury
claim. Although
it may be clear that the
other
driver
is liable, you
did not sustain any damage to your person that required you
to spend money.
An example of damages without liability:
Your vehicle and another vehicle collide. You
and the other driver are seriously injured
and have
to be transported to the hospital.
There are
no witnesses
to the accident, and it is not clear to the responding police
officer who caused the accident. It will
be your word against the other
driver's as
to who was
responsible.
You have an extended hospital stay, months of therapy and
lots of time off work. Your medical bills and lost wages
are substantial.
With a situation like that we would be reluctant to go
to trial unless we had some way of proving that the other
driver
was
totally responsible
for
causing
the accident. The occurrence of an accident does not mean
that the defendant is negligent. The plaintiff's burden of
proof
is higher
than that.
Some important things you need to be aware of about going
to trial:
Trial preparation takes a lot of work. Most of the work
is done in what is referred to as "discovery." During
discovery, each side is required to tell the other the
factual basis for
their case.
You will
be required
to answer interrogatories,
produce documents, and give your deposition. In fact, any
trial attorney will tell you that the outcome of a trial
usually
depends more on what
happens before
the parties get into court.
The plaintiff has the burden of proof on most issues.
This burden can sometimes be more difficult than it seems.
Parties
are often
frustrated
by how difficult
it can be to prove facts that are seemingly beyond dispute.
For example, the police accident report is usually not
admissible because it is
hearsay. If
it is necessary to prove something in the accident report,
the
officer who prepared
it will need to testify.
Your medical records are rarely
admissible (except where medical malpractice is an issue
in the case).
The opinions of your
doctors must
be presented through their testimony before the court.
Bringing doctors to court is often the most expensive
part of a personal
injury trial.
The jury will never hear that an insurance company is
involved in your case. It will appear to the jury that
it is you
against the
other driver.
Defense
attorney who represent the insurance companies will
make the other driver appear to be
someone who just made a mistake and that it would be
unfair to make the other driver pay thousands of dollars
for making
an
honest mistake.
Juries are unpredictable. Like most personal injury
claimants, most jurors have had little or no exposure
to the civil
justice system.
They find
it easy to believe,
therefore, when the tort reformers tell them that
plaintiffs' lawyers are reaping huge profits from frivolous
lawsuits
and that many
plaintiffs are
treating
the civil justice system as if it were a lottery.
We
had one juror tell us recently that they did not.
Anyone who has been through the process knows that
there is no profit in bringing frivolous
claims. Unfortunately, perceptions
are sometimes
more
important than
reality. Once the jury returns
a verdict, the losing side is entitled to
appeal to the first level, in
Houston, either the
1st or 14th Courts
of
Appeal. The
Supreme
Court, however, takes relatively few cases,
so this right of appeal is rather limited
in Texas.
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Stage 4 – Disbursement
Once you have accepted the settlement offer or
obtained a jury verdict and prevailed on
appeal, the insurance
company will
send your attorney
a Release
and the settlement
check. Typically the check is made out to
you and your attorney.
You will need to endorse the check so your
attorney can deposit it into
the attorney's
trust
account. Once the check has cleared, the
attorney's staff will figure out what costs have been
expended on your
behalf, whether
any health
care providers
have liens against the fund, and what your
attorney's fee is. If you have any
outstanding
balances with health care providers without
liens, your attorney will ask you if you would like
to pay them out
of your settlement.
The attorney's
staff
will then prepare a disbursement sheet for
your
review. Once you have signed
the disbursement
sheet and the Release, you will finally receive
your settlement proceeds.
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