This article contains my opinions, based on my experience as an attorney after years of handling all measure of personal injury matters. I want you to have some basic understandings of what an attorney should do and how an attorney should act when handling the “average”, “whiplash” automobile collision case. These standards certainly apply to cases involving more serious injuries. However, I have written this article with the “average” case in mind, as that imaginary “average” case is the one which occurs most often. I believe that there are absolutely “rights” and “wrongs” in the handling of a personal injury claim. At the conclusion of this report, if you have questions, I will tell you how we can connect to try to get them answered.
You have just been involved in an automobile accident which was not your fault. Your car is all banged up; you are hurt; you are probably worried about many of the consequences this collision has now created, and as the expression goes: “this just wasn’t a good time for this kind of thing”. There are 101 things racing through your mind. Certainly, the last thing you need is to worry about finding a good attorney to handle matters for you. Hopefully this article will give you a leg up on making that search a bit easier, by allowing you to know what to look for, and by allowing you to know what questions to ask.
Finding an attorney is easy. Finding the right attorney might be a little tougher. First, understand that there is nothing immediately critical about hiring an attorney. I recommend, however, that you do so within 2 – 3 days of the collision. In this fashion you can avoid being hassled by insurance adjusters, and an intelligent course of action for you and your case can be formulated. Back to finding that attorney… If you have a good case, there are hundreds of attorneys who will be thrilled to work for you. I would be less than honest if I didn’t admit that legal fees for “personal injury” cases can be very handsome. Such fees for the right attorney however, are well worth it. Read on, and you’ll see why.
You should be able to recognize a sincere appreciative attitude on the part of the attorney you select. Again, there are hundreds of attorneys who’d be very happy to have you as a client. If the attorney you select isn’t one of them, find one who is. That attorney will work very hard for you. Keep reading, and I’ll help you learn how to pick the right attorney.
Your car is in need of repair, you are in need of medical treatment, and your ability to go to work at this point is in doubt, both because you now lack transportation, and because you don’t feel physically able to do so. Insurance adjusters are calling. What should you do? A good attorney can tell you. A good attorney will also find out many important things, such as: did police investigate? was the other party given a ticket? who is the other guy? is there insurance? is there enough insurance? Again, a good attorney will advise you about what to do, and find out the answers to all of these questions. You need to concentrate on getting better. Investigating these matters and spending hours on the telephone are the last things on the doctor’s prescription pad for you.
Good attorneys can be found in many places. If you don’t know anyone who has used an attorney for a personal injury matter, there is probably a local bar association referral service. If there isn’t, or if they’re not open and you want contact now, internet search engines will offer the names and website addresses of all types of attorneys, from single practice attorneys up to large firms. I encourage a good look at the lawyer’s or the law firm’s website: read about their experience and see if the website “speaks to you.” I do not recommend telephone book ads to find a lawyer, nor do I recommend television ads, because really, they don’t tell you much. Once you select an attorney or two or three to interview, don’t jump without asking a lot of questions, no matter where the attorney’s name came from.
You select an attorney and you want to call him or her. Pay attention to several things: Is the number you are calling advertised as 24 Hours? If so, who answers the call? Is it a tape? Is it the staff? Is it the attorney? Any may be acceptable, but clearly, you should be looking to talk to the attorney within a reasonable time if that first call doesn’t get you connected to him or her. Next, should you call “off-hours”, or wait until business hours Monday through Friday, 9 – 5? My feeling is that an attorney who practices personal injury law must recognize that potential clients are calling, often very traumatized, often very confused, and often in need of some good solid advice. Accordingly, that attorney should be available whenever the potential client calls. So you call, and you are generally pleased. The attorney sounded okay, and invites you to his or her office for an appointment. Before you go in, ask some questions:
You’re satisfied and you agree to meet with the attorney you’ve called. At this meeting you should meet the attorney, talk with him or her for as long as you want, and the entire process should be explained to you. This includes explaining all of the possible insurance benefits available to you from all sources, including your own insurance company, and how and when such benefits are to be expected. It also means explaining, at least in summary fashion, the applicable law which governs your case. Different states have different laws which control “liability” issues and ultimately affect compensation. Ask your attorney if your state follows no-fault, comparative negligence, or contributory negligence principles.
At this first meeting, which is really the beginning of your case, your attorney CANNOT predict how much money you’re going to get for your injuries. Nobody knows, at the early stages, how badly you are hurt, how much medical care you’re going to need, how much time you might miss from work, or even the potential legal theories which might be available. Can you predict the final score of a baseball game in the first inning? IT IS RIDICULOUS FOR AN ATTORNEY TO ATTEMPT TO ESTIMATE HOW MUCH YOU’RE GOING TO GET AT THE BEGINNING OF THE CASE.
At the initial meeting a paralegal or other staff member may take “administrative” information from you. The attorney should explain the legal contract, or fee agreement, with you. Attorney’s fees in this type of case are almost universally “contingent fees”, which means the attorney only gets paid when the case is settled; that is, the fee is “contingent” upon resolution. Usually attorneys charge one-third of the recovery, and usually contracts of this sort detail a higher fee, perhaps 40 – 50%, if the case goes to trial. This is fair; because going to trial is a lot more work for the attorney, and involves the attorney taking on a lot more risk. Recognize that every “contingent fee” case an attorney takes on is a case where the attorney is working for free, and at great risk of getting nothing, until (and unless) the case resolves.
Your initial meeting with your attorney should conclude with you receiving a copy of the fee agreement, and with a very concrete list of things which should be set to happen.
1. You should have a list of things the attorney needs, such as a copy of your insurance policy, pay stubs, tax returns, photographs, etc.
2. Telephone calls should be made promptly for the resolution of the damage to your car. The two most typical scenarios are as follows:
a) The car is repairable. If it’s in a tow-lot, plans should be set to get it out, as storage charges accrue quickly. Next, insurers should be notified of the location of the car, so an appraisal of damage can take place. If the insurers can be notified quickly, often they will move it out of the towing lot. In any event, discussion as to what’s going to happen one way or the other should be presented to you.
b) The car is destroyed, or “totaled”. If there is an outstanding loan on the car, you must supply the lender’s name and account number to your attorney so they can contact them to discuss payoff. Again, insurers must be notified of the car’s location, so it can be moved and they can appraise the value. You will have to sign over the title to the car, so be prepared to make it available quickly. If there’s a loan, usually the lender has the title, or a part of the title.
3. Plans should be set for you to get alternate transportation. Any good personal injury attorney should be able to recommend a reputable rental car company.
4. Plans should be set for you to get “the right type” of medical care. This means, in most cases, that you should be treating with an orthopedic physician, a chiropractor, or a general practice physician who provides physical therapy services. If you don’t have a family doctor who can refer you to “the right type” of doctor, or if you don’t know someone who knows such a doctor, your attorney should be able to give you the names of several reputable physicians near where you live or work. It is essential that you receive medical care if you are hurt, and that you get this care as soon as possible. Medical study after medical study shows that individuals who start medical treatment later end up needing more medical treatment than they would have if they had begun that treatment soon after the trauma occurred.
a) Good personal injury attorneys have many medical “contacts”. If needed, arrangements often can be made through your attorney allowing you to receive medical care without payment up front (or as you go). This is accomplished by a document called an “Assignment”. Both you and your attorney sign this document, and thereby agree that the doctor will get paid at the end of your case, from the proceeds recovered. In this fashion, the doctor is satisfied, because of the attorney’s reputation, that payment will probably be forthcoming. Your attorney should tell you that the signing of this document does not eliminate your responsibility for payment.
5. Your attorney should send out several letters within the first 24-48 hours after meeting with you. At a minimum, these letters are:
a) to insurers, advising you are now represented, and advising that all contact about your case should go through the attorney’s office;
b) to medical care facilities, requesting records, reports and bills;
c) to the accident witnesses, asking for statements, or requesting appointments to review what they saw or what they know;
d) to the investigating police, requesting the accident report.
Your attorney and his or her staff are now acting as both a “collection facility”, gathering records and bills from medical care providers, and continuing as a shield, keeping the insurance company representatives away from you. I often have clients call me and ask me “how’s my case going”? If case liability is not an issue, that is, if it’s clear that the collision was “the other guy’s” fault, and his/her insurance company has “accepted” responsibility, then my answer to the question is simply “fine, how are you feeling?” I say this because at that point, assuming we’ve “secured” the liability issue, all that remains is waiting for the client to get better.
A good personal injury attorney is able to review medical records and spot problems, either in the way the records are written (mistakes?), or in the overall medical course. I have called doctors when I have felt that certain diagnostic tests were questionable. I have called doctors when therapy seemed to be continuing endlessly without any improvement in my client’s condition. I have called doctors when bills seemed out of line. Your attorney should be knowledgeable enough to do the same, and should have the gumption to do so if and when appropriate.
ONCE YOU ARE COMPLETELY DONE WITH ALL MEDICAL CARE, AND ONCE YOU ARE BACK TO PRE-COLLISION STATUS, OR IF THAT’S NOT POSSIBLE, ONCE YOU’RE AS GOOD AS YOU’RE GOING TO GET, THEN, AND ONLY THEN, SHOULD YOUR ATTORNEY CONSIDER ATTEMPTING TO RESOLVE YOUR CASE.
Having said that, there are a few notable exceptions. First, the “statute of limitations” provides a limit on how long you have to either settle your case or file a lawsuit if your case cannot be settled. So, if you are not medically resolved, but the statute of limitations date is approaching, your attorney should meet with you and explain your options. Next, in many cases the total amount of insurance funds available (policy limits) will not be enough to truly fully compensate you. Thus, no matter how badly you have been injured, no matter how much your medical bills are, the insurance coverage available simply won’t be enough. Accordingly, the question presents as to whether it is reasonable to “settle” now, given that waiting will not produce any more funds for you. It may be reasonable to attempt to resolve the case, assuming all options have been explored, if this situation presents itself. Your attorney should explain your options.
I recognize that most people do not voluntarily position themselves to be automobile accident victims. People generally don’t get hurt just so they can collect. Please don’t have misgivings about seeking money here. This isn’t about getting rich. This isn’t about fraud or trying to take advantage of the system. When an accident occurs and you are the victim, there is absolutely nothing wrong with feeling an entitlement to money. Our system of civil justice provides this, MONEY, as the only remedy. You are entitled to be compensated for medical expenses you incurred, for wages you lost, for mental and physical pain and suffering, for disfigurement, for aggravation, for inconvenience, for disrupting the quality of your life, and for more.
Any good personal injury lawyer will tell you his or her opinion concerning the value of your case, now that you have gotten to that “settlement-ready” posture. If they don’t know, or have an opinion, what are they there for? Your attorney should set out several things in writing to you BEFORE going to the insurance company to discuss settlement. These are:
1. How much the attorney thinks your case is worth.
2. How much the attorney is going to demand. Clearly, in the upcoming process of discussion with the insurance adjuster, the attorney must have room to negotiate.
3. How much you owe in outstanding medical bills. This will effect the “net funds” you receive.
4. Whether there are liens against the proceeds of your settlement. Health insurance, worker’s compensation, or a federal, state or local agency (Medicare, Medicaid) may have made some payments for your medical bills or to you for wages you lost. These groups may be entitled to be reimbursed. Again, this will effect the “net funds” you receive.
5. What options are available if settlement negotiations aren’t successful.
Is the lawyer going to attempt to mediate? to arbitrate? to litigate? You should know what all of these options are, if they are available, and what the pluses and minuses are with each. AND THESE should be compared to the settlement possibilities. It should be pointed out to you that if you get 95% of what you want through settlement negotiation, it probably isn’t a stellar idea to file a lawsuit, which forces delay, causes extra expense, and leaves the case unresolved.
6. Who is going to negotiate. I believe that if you hire an attorney, it is fine for the attorney to delegate non-legal, administrative matters to non-lawyer staff. On the other hand, I believe the attorney you hire should be the one who gets on the telephone and negotiates your case for you.
Once the case is settled, the attorney should receive a check from the other party’s insurance company. You should see this check. It should have your name on it as a payee. It’s okay if it also has the attorney’s name as a payee. You should sign the check. The attorney should present to you a document similar to what I call a “Settlement Memorandum”. This document should detail the “money in” (the insurance check for settlement), and the “money out”, that is, all of the things which are going to be paid from that check. These will include the attorney’s fee, outstanding medical bills, any liens, and a “net” for you. The check should be placed into a special bank account which the attorney should have, called either an “escrow” account, or a “trust” account. This is an account where client funds are held, and attorneys are held to the highest of standards for the accounting of these bank accounts by attorney licensing authorities and bar associations. Routinely funds should be deposited immediately after the check is fully endorsed, and thereafter, funds should be disbursed within 5-10 days, the delay simply to allow the funds to “clear”.
Your attorney should complete all legal matters relating to your case. This means sending payment for all outstanding medical bills and liens. This means providing you with a copy of all of the checks written for those purposes. You should also either be given copies of the important items in your file (medical records, for example), or your attorney should advise you that he or she will keep them for your future needs.
Good luck to you. Please drive safely. Wear your seatbelt. Put your kids in car safety seats. Don’t even think about drinking alcohol or using drugs and then getting behind the wheel. I hope you never get into an automobile collision. If you do, I hope you don’t get hurt too badly. Remember to keep your perspective. Remember that you are more important than your car. Take your time with the legal matters ahead of you.