The Ultimate Guide to Personal Injury.
In an effort to simplify the Personal Injury process, we've created an "Ultimate Guide".
Being injured in an accident can be an incredibly stressful process. Unfortunately, the same can be said for hiring a lawyer and enduring the Personal Injury claim process. To make the process a little smoother, we have created this guide to educate our clients and the general population of the ins and outs of Personal Injury.
The scene of the accident.
Generally, you want to gather (“preserve”) as much evidence as safely possible. Everyone involved in deciding the value of your upcoming claim (assuming there’s insurance) will base their evaluation in large part on various types of evidence. Simply put, there is the evidence at the scene of the injury, and the evidence that comes after (medical records, bills, facts supporting pain & suffering). Follow our Ultimate Guide to Personal Injury steps below to make sure you don’t miss anything at the scene of the accident.
Things to collect. Depending on the severity/circumstances of your injury, you may not be able to collect all/some/none of these.
- Call the police. In CA, police are only required to report to auto accidents with injuries. They will often tell you your injury is not serious enough to avoid dealing with the situation. If you disagree, stay firm. They will do a lot of the steps below for you. Also, don’t abuse. Use your own judgment. If the other party is uninsured, you are required to file a police report within 24 hours to trigger certain special (uninsured motorist) provisions of your auto insurance. Not everyone has this coverage, but everyone should.
- Accident photos. For auto accidents, you want photos of vehicle damage and where the vehicles came to rest (stopped) immediately after impact, if possible. For slip/trip and fall accidents, you want photos of what caused you to fall. Use your imagination of other injury types.
- Physical evidence. If a tangible physical item caused your injury, e.g. hot sauce bottle breaks in your hands, do not assume it’s trash. Save physical pieces of evidence so long as it’s safe/reasonable to do so.
- Other party’s contact info. Take pictures of their ID, insurance cards, name tags, vehicle (see above). Whatever is available, even if it’s expired.
- Witness contact info. Sometimes there are no witnesses. If there are witnesses, they do you little good unless you have their contact information. If you can get a general understanding of what they witnessed, great.
- Scan for cameras. Do a quick visual scan to see if there are any security cameras nearby. Camera footage may get recorded over, so it’s important that an informal/formal request be made for the footage without significant delay. No one is obligated to give you footage, but most people are sympathetic if the injured person asks for the footage within a few days. A lawyer can use a subpoena, but this has many burdens.
Medical treatment. A common mistake is waiting too long to get medical treatment. If you’re injuries are serious enough, you may be taken away by ambulance (or even helicopter). But assuming your injuries are less serious, consider going to the urgent care or ER the day of the accident. They will clear you of anything serious, and give you follow up instructions.
Opening an insurance claim.
Most people don’t have a lawyer at this stage, but if you plan on hiring one, now is a good time. They can open the claim for you and dodge any problematic questions.
Assuming you were in an auto accident, you want to report the claim to your own insurance company. Their number is on your insurance card or app, or you can google the company name plus “claims telephone number.” This process will likely take 20+ mins. They will ask questions regarding what happened leading up to and at the time of the accident. They will ask you if you were injured. You can simply answer “yes, but I can provide more details later.” Be firm. It’s also a good idea to request your “declaration page.” This is a 1-2 page summary of all your coverage types and the amounts of coverage. Our Ultimate Guide to Personal Injury tip here is to never, ever provide your SSN. It’s not required, no matter what anyone tells you.
If you don’t have coverage for this type of incident, make a claim with the 3rd party company (the other party’s insurance company). Be very brief with them. Explained what happened, avoid an in-depth conversation about your injuries, don’t provide your SSN, and don’t give a recorded statement.
Save your claim number and claim handler’s contact information.
Some people don’t have a lawyer at this stage, but if you plan on hiring one, now is a good time. They can facilitate communication between the body shop and insurance company, make a “loss of use” claim for you, and ensure you are getting the appropriate value if your vehicle is a total loss.
If you have collision coverage, you may be better off going through your own insurance company for repairs. They will typically treat you better and may guarantee the work performed on your car.
Our Ultimate Guide to Personal Injury tip here is note that if you choose not to get a rental vehicle, you may be entitled to “loss of use” damages. LOU allows you to more or less recover the rental value of your vehicle for each day it is unusable.
If your vehicle is a total loss, you are entitled to the fair market value of the vehicle (plus tax!) had it not been in a wreck. This value is based on sales price of comparable vehicles in your locality. If you feel like the value the insurance company is offering you is not fair, provide them with listings of other comparable vehicles (Autotrader, etc.) that more accurately reflect the fair market value.
Hiring a Personal Injury lawyer.
Increase your net settlement. This is an important one. Hiring a lawyer will almost always increase your net recovery, period. Lawyers help you to navigate an unfamiliar process that is set up to increase insurance company profits. I can only think of a couple rare instances where this might not be the case (i.e. very significant injuries and minimal insurance coverage available).
No out of pocket fees. Personal injury attorneys work on a contingency basis, which means they are paid a percentage of what they recover on your behalf. Typically, contingency fees can range from 33.33% to 40-45% if a lawsuit is filed or the case goes to trial.
Access to medical care. Lawyers can also help access medical treatment with little to no out of pocket expense, even with no health insurance. Once a settlement is reached, lawyers then work to negotiate down your medical expenses, further increasing your net recovery.
Trust. If you choose to hire a lawyer, it is incredibly important that you get along and have confidence in each other. If you get bad vibes from this person or firm during the consultation phase, it will only get worse. Trust your instincts and run in the other direction. Check online reviews, but also make sure you speak to the lawyer directly. Ask who specifically will be working on your case, the timeline, different stages of the process, and raise any other concerns you may have. Some questions may not have specific answers, but can still be address generally (for example, it’s impossible to predict case value to the penny at the onset of a case, but sometimes a range can be estimated based on current facts).
Our Ultimate Guide to Personal Injury tip here is to make sure to check the lawyer’s name in State Bar website. If the lawyer’s profile shows any disciplinary actions, you may want to reconsider whether you should hire them.
Case value depends (in part) on medical treatment. There are rare exceptions, but your case value is largely driven by the medical treatment needed to treat your injuries. Insurance companies assume bigger injuries require more medical treatment, which will drive up your medical expenses, and raise your case value.
No treatment, no value. If you don’t receive any medical treatment for your injuries, the insurance companies will essentially see your claim as worthless and assume all of your untreated subjective complaints are total BS. Medical treatment generates medical records, which end up being the evidence to support your claim.
Treatment without out-of-pocket expenses. We call this getting treated on a “lien.” An attorney can help to establish the necessary relationships with different medical providers so you don’t have to pay out of pocket. Instead, the medical provider will get paid after the case has settled (and thus has a lien on the settlement for the bill amount). This type of treatment is great if you have no/bad health insurance or want to avoid long appointment wait times or medical red tape to get seen by a specialist.
Avoid treatment gaps. Gaps (i.e. inconsistency) in treatment will typically delay your physical recovery and will often hurt your case value. Insurance companies assume if you are hurt, you will almost immediately go to medical treatment, stay consistent with treatment and follow through will all referrals and prescriptions. The more you deviate from this, the more imperfect your case becomes.
Our Ultimate Guide to Personal Injury tip here is to find conveniently located facilities/doctors to get your treatment so you can avoid missing appointments.
Case value depends (in part) on medical treatment. Case value comes down to a very simple concept: the more injured a person is, the more valuable their claim should be. This assumes that the injured person had no “liability” (or responsibility) in causing the accident.
As a result of more serious injuries, the injured client is likely to have incurred more medical expenses, required more medical treatment, and will have longer lasting, and possibly even life-long, injuries.
Evidence. Lawyers prove the nature and extent of our clients’ injuries through a variety of ways, including: diagnoses in medical records, extent of medical bills, client statements, witness statements, videos and photos of injuries and damage caused in the accident, and more.
Liability. Sometimes a client may have some liability (responsibility) in causing their accident. If that is the case, then their potential case value is typically discounted by their percentage of liability. For example, if a client is 50% responsible for the accident they were involved in, then their case value will be discounted by 50%. Some states have different rules on the amount of liability you can have and still make a claim.
Pain & suffering. Also known as “general damages” make up the largest part of your case value. In California, the law says there is no fixed standard on how to calculate general damages. On many cases, they are 1-5x your medical expenses, in other cases, they have no tie to your medical expenses whatsoever.
Our Ultimate Guide to Personal Injury tip here is to keep a journal with thoughts and specific instances of how the accident has impacted your life.
Special damages. Special damages are specific, calculable things like lost wages and medical expenses. These are recoverable as part of your settlement and will require supporting documents like W2s and medical bills. Many self-employed individuals choose to waive lost wages to avoid submitting their tax returns.
Don’t negotiate too early. Insurance companies will often dangle a number early on to entice to you settle before you know too much. Don’t fall for it. While you are treating, your case continues to evolve. Except in specific situations, you should not negotiate the value of your case until your medical treatment is done or nearly done.
Lawsuit vs no lawsuit. Almost all negotiations start and end before the filing of a lawsuit. A lawsuit serves as a weapon when negotiations fail. At some point, if the two (or more) sides cannot bridge their gap, a lawsuit can serve to impose financial and other burdens on the insurance company. Lawsuits almost always increase case value, but also increase case expenses. They also slow things down significantly, so they are usually Plan B, not Plan A.
***This is why lawyers increase case value. Because insurance companies know if they mess around, a lawyer will file a lawsuit, force the insurance company to hire lawyers, increase expenses, etc. The same fear is not imposed by a layperson.
Evidentiary support. Insurance companies need documentation to support increasing the value of their offers. Medical records, bills, W2s, pay stubs, photos, and statements (verbal/written) all help to support you, and make the insurance adjuster’s life easier in getting you more money.
Catch more flies with honey. Being an asshole rarely helps and should only be used in case of emergencies. My personal approach is to be professional courteous but firm in my positions.
Confirm offers in writing. Settlement discussions can happen through letters, email or over the phone. For verbal conversations, it’s best to send a follow up communication to confirm offers in writing for a clear offer/counter offer history.
Ask for more than what you want (within reason). First offers are almost never the best offers. Each side normally has some room to move up/down. With that said, if you ask for too much, or if the other side offers an insultingly low amount, the negotiation loses credibility and can often fall apart.
Filing a lawsuit.
It’s important to note that your average Personal Injury claim does not start with a lawsuit. It’s simply an insurance claim, and there is no court involvement. However, sometimes a lawsuit cannot be avoided, typically when there is a dispute in fault or a general disagreement of case value. A lawsuit typically increases case value, but it comes with additional burdens. These burdens are things like increased case costs, lengthening of the case timeline, and a generally more intrusive process.
Most cases will settle in the “discovery” phase, well before trial. The discovery stage, as it relates to the Personal Injury client, is made up of 3 major phases.
- Written Discovery. The written discovery phase involves written question (no surprise) that help the other side understand your background details like education, residence, etc., your injury details, your medical treatment, and allows the other side to collect your medical records and other documents relevant to your case.
- Deposition. The deposition is the opportunity for the insurance company’s attorney to sit down with you, face to face, with your lawyer by your side. This is an opportunity to increase your case value if you come across as being honest, sincere and likable. Alternatively, if you are trying to hide or exaggerate certain aspects of your case, the deposition may really hurt your case value.
- Defense Medical Examination (DME). A DME is an opportunity for a doctor hired by the insurance company to briefly evaluate you and your injuries. The result of most DMEs is fairly predictable: the doctor will say you are not as injured as you claim, or that your recovery is complete. Nevertheless, this is still helpful as many insurance attorney’s or adjusters will require this step before making a recommendation to settle your case.
Uninsured Motorist Coverage.
Uninsured Motorist (UM) coverage is incredibly valuable. Far too often, we get calls from new clients who were the victims of hit-and-run accidents or accidents in which the other driver had no insurance coverage. In those situations, there is very little that can be done. That’s because there is not money to collect for what our client has suffered.
UM coverage solves that issue. It’s insurance coverage that you can add to your own policy that will kick in if the other driver flees or has no insurance. There are additional requirements for the coverage to kick in, like the filing of a police report within 24 hours, but the requirements are generally reasonable.
UM coverage also doubles as Underinsured Motorist (UIM) coverage. This means if the driver that hits you does have insurance, but not much, your UIM coverage may kick in as a secondary coverage, allowing you to possibly recover more money.
UM and UIM coverage are one type of coverage. The two names only differentiate the situations that they are used in. Adding UM/UIM coverage is typically not expensive, and if you utilize your UM/UIM coverage, your insurance premiums will not be increased (this is the law).
We strongly recommend all of our clients to add this coverage to their policy.
The Ultimate Personal Injury Lawyers.
If you or a loved one was involved in an accident, it’s important to note that your rights expire. We strongly suggest speaking with an experienced Personal Injury attorney immediately to better understand your rights. Consultations are absolutely free with no strings attached, period!
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