I used to work for the insurance companies as a defense lawyer. I know the tricks they use against injured victims. Perhaps "tricks" is a strong word - let's just call them "strategies." At least get a free consultation from a competent and honest personal injury lawyer who will tell you about your rights. If you're going to make a decision regarding your personal injury case, shouldn't it be an educated decision? Click here to download a PDF transcript of this video.
If you suffered a serious injury in the Santa Clarita, CA area, please give my office a call for an assessment of your accident case. I will tell you the pros and cons without sugarcoating. You need to get reliable, honest, and credible answers to your questions. Call (661) 414-7100. After my clients have completed their course of medical treatment following an accident, there comes a time to present the case for settlement to the responsible party's insurance company.
Prior to this time, the lawyer is indeed in contact with the insurance company and keeps them posted. However, a formal "demand package" isn't usually presented until my clients have finished their treatment and/or reached a plateau where no further treatment is going to help. The lawyer will then put together a "demand package" - this package contains several times including, but not limited to the following: 1) A letter to the insurance adjuster establishing liability adverse to their client and arguing the damages of the case - both economic and non-economic damages (the latter are also known as "pain and suffering" or "general" damages). The letter is basically an "argument" to the adjuster. It should be persuasive but not long-winded. Remember, adjusters are handling hundreds of files at any given time so they don't have time or energy to read a novel. 2) Photos of the accident - the photos need to help the adjuster understand the severity of the impact. If the photos show little damage, I generally won't include photos that can backfire on my client. Photos should tell a story. Remember, pictures "tell a thousand words," so the photos sent need to help tell the story. 3) Property damage estimate - if the estimate shows significant property damage, frame damage, etc., it should be included to further show the adjuster the extent of the damage. Sometimes, photos don't tell the whole story so the esimate can help. The property damage estimate might reveal damage that's hard to see. 4) Medical reports - Not just medical records but also reports that contain narratives - explanations from the doctors as to what the injuries were, what treatment was done, and any prognosis. 5) Medical bills - Billing from all medical providers, from the ambulance, hospital, ER, orthopedic, chiropractic, physical therapy, MRIs and other scans, etc. This is NOT "explanation of benefits" forms or co-pays. Your co-pay is not your billing. 6) Lost earnings verification. If you are asserting lost earnings, you need to provide the adjuster with adequate documentation that supports your claim for lost wages. There are sometimes other documents that are included with the demand package, depending on the particular case. The adjuster will review the package and generally call the lawyer with further questions and/or an offer. The lawyer and the client then discuss the offer and how to respond. Recently, a client came to me who had been hit by an automobile while he was riding his bike. The other party turned right in front of him and caused an accident to occur. By all accounts, the accident wasn’t his fault. The impact was so strong, that he flew off his bike about 22 feet into the air, and landed on another vehicle. He had several severe orthopedic injuries (broken clavicle, cracked ribs, facial lacerations, etc.), and he was taken to the hospital. It turned out he needed further orthopedic care and possible surgery.
When I first met with client, he told me of a police officer who witnessed the accident. The officer apparently assured my client it was not his fault, and the other party was very apologetic scene. My client was sure the accident was not his fault, especially after what the officer told him and the apologies of the other party. All signs were in his favor. I told my client that after so many years of practicing law, he should not be surprised if everyone’s story changes. My client was surprised I would say such a thing. Perhaps I was being too careful? Perhaps I didn’t want to have too much confidence so early in the case? Sure enough, we got a call the next day from the insurance company for the other party. The driver of the car had a change of heart. She now alleged my client caused the accident by riding his bicycle too fast. When we obtained the police report about two weeks after the accident, we found the police officer had found against my client and cited him for riding his bicycle too fast for the circumstances – a violation of California Vehicle Code 22350. The lesson here is that you should never assume what the police officer is going to say, what the police report is going to reveal, or whether were not the other party will accept fault. Even if the other party accepts fault, that doesn’t mean his/her insurance carrier will agree. Also, your insurance company and the other party’s insurance company might disagree. I had a case recently where my client’s insurance company found in her favor, while the other party’s insurance company found against her. Never be surprised, because people can change their tune. What you think will happen doesn’t necessarily unfold the way you might expect. I remember one client didn’t hire me because she thought I was being pessimistic. I tried to persuade her I wasn’t being pessimistic, but I was trying to be realistic. I wanted her to be prepared for differing versions of the accident. I told her there are courthouses all over the United States full of people who disagree about this or that. It is my opinion that by advising my clients of these possibilities in advance, they are better prepared for such developments as they unfold during their claim. Of course, we hope everyone will stick to their story, but that isn’t always the case. People change their minds. What you THINK you heard at the scene of an accident may not actually be the entire story. You may have heard bits and pieces, and your brain jumped to certain conclusions based on what you perceived to be the truth. Wait till all the facts are in before you make conclusions about your personal injury case. Sometimes, my clients get very frustrated with how long it takes to get a settlement offer from the insurance company. Generally speaking, the more complicated the case and the higher the settlement demand, the longer it takes for the insurance company to respond.
If your claim is only for several thousand dollars, then the insurance company for the other party will probably respond fairly quickly, usually within two weeks or so. Sometimes it can take about 30-45 days. If your claim exceeds $100,000, you can expect a much longer delay, because the insurance adjuster usually doesn’t have the authority to settle for that kind of amount without checking with a multitude of supervisors. Those supervisors generally need to check with their supervisors as your demand gets higher. After all, if they’re going to pay “that kind of money,” they better have darn good reasons for doing so – or else their jobs are on the line! They need to document and support why they are paying you so much in settlement. They don’t just write checks out of the goodness of their hearts. For most clients, their case is “obviously” worth $X, but it’s not so obvious to the insurance companies. Remember, insurance companies deal on a daily basis with a whole bunch of crooks and scam artists out there who are trying to game and cheat the system. They generally view you as that kind of person until you prove them otherwise. The burden is on you to show them that your case is legitimate and not one of those scams that they have to deal with on a daily basis. Also, keep in mind that insurance adjusters deal with about 200 cases at any given time. While your case might be the only case you were dealing with, it is only one of hundreds for them. It generally takes longer for some cases than others. Remember, a human being is processing your case. Some human beings are faster than others, and it sometimes depends on the luck of the draw as to who is handling your case. I’ve had cases where getting the insurance adjuster to return my call is nothing short of a miracle. They are sitting at their desk staring at Facebook all day. I have other cases where the insurance adjusters are very much on the ball and very professional about their job. They are the adjusters who “get it.” They are not trying to nickel and dime anyone. Many adjusters do a fair and consistently good job. Also, in many cases it is helpful to wait a little bit longer in order to get a good settlement for your case. Some of my clients grow frustrated and want to file a lawsuit right away. They want me to call and yell at the adjusters! That’s what they’ve seen on TV – lawyers yelling at people. Long ago, I got fired because my client did not think I was mean enough to the other party! That Is not necessarily the best thing to do because it often antagonizes the other party and makes them dig their heels in the sand. There are times when it does make sense to file that lawsuit, but you better be ready for the repercussions of doing so. Why would I want to anger the person who is writing my client a check? I generally don’t file a lawsuit unless I’m convinced that I have exhausted other diplomatic means of settling the case. If the adjuster is simply taking too long, that is not necessarily in and of itself a reason to file a lawsuit. However, you should not let things get too close to the statute of limitations deadline. The insurance adjuster for the party at fault will generally be very nice to you at the very beginning of the case. Why would they do that? They want to get your cooperation because they want you to provide as much information about your injury case as possible. They will also ask you for a recorded statement (which I don’t recommend you provide) and will probably ask you to sign all kinds of forms relinquishing your rights and providing them with permission to obtain financial and medical records about you.
They will ask you for your social security number so they can research your entire history. However, there are many things that they will NOT do. They will never put in writing that their client was at fault. They won’t tell you how much insurance money is available to you. They won’t provide you with a copy of your own recorded statement. They certainly won’t let you take the statement of their client. They won’t provide you with any witness statements they’ve obtained. If they “index” you by using your social security number, they likely will not give you a copy of what they uncovered. They won’t give you copies of any information they dig up about you. So they act all friendly at first in order to obtain loads of information from you, but they will NOT provide you with the same information when you request it from them. Does that sound fair? No. Insurance companies have a new friend on their side – the social networking system! Now more than ever, insurance adjusters are researching plaintiffs on the internet. Go ahead and type your name in the Google search box and see what happens. Not only that, there are other websites that keep basic data about people including where they live, real estate they own, and much more. All they have to do is type your name and search for you on Google, Yahoo!, Bing, etc.
If you are claiming personal injury from an accident or other event, you can’t be seen running a marathon the next day or participating in a gymnastics competition a few days later. Don’t go skiing in Lake Tahoe that week! If you claim you injured your back, don’t be caught the next week playing a game of basketball with your friends. If you are injured in an auto accident, you have to act injured. If your actions are not consistent with your claim, it can come back to haunt you. The insurance companies are getting savvy. They know that some people post their every move on Facebook, Twitter, MySpace and other social networking sites. Heck, I use Facebook to promote my law practice and keep in touch with family and friends, but some folks literally post everything they do (from having breakfast to going to the bank) on these websites. While we can debate the merits of doing so, the insurance companies really love it. Postings, photos, videos…it’s all there for them to see. All they have to do is search for your name, and many times, they can find you doing exactly what you shouldn’t be doing! Keep in mind, in this day and age, you don’t have total control over what gets posted. You may not be the one to post a video of yourself but a friend of yours might do so. You could be “tagged” in a photo on Facebook that ruins your whole case. Therefore, it’s not just your actions that matter. Don’t put yourself in a situation that could compromise your case. Plus, if you are truly injured, you should be taking it easy anyway. When I worked for a major insurance company as a defense lawyer, there were many times when we sensed the individual claiming injury was either simply lying through their teeth, or at the very least, greatly exaggerating the claim. In some cases, plaintiffs would “bootstrap” all their prior ailments to an accident. Check your bank account – the insurance companies have more money than you. They will hire investigators to follow you around and take video of you carrying heavy groceries, playing at the park with your kids, and playing a game of pick-up basketball with your friends on the weekend. Therefore, it doesn’t even have to be the social networks….they will find you acting inconsistently with your claimed injury and they will show that footage on a big-screen TV for a jury. The jury WILL hold it against you. If you are trying to take advantage of the system, then shame on you. The system is designed to protect people….not to make a quick buck. Therefore, don’t compromise your perfectly decent injury case by acting inconsistently with your injury. Remember…these days, everyone is watching. Oftentimes, my clients are very concerned with what their case is worth. In their minds, it is usually worth a great deal. Part of my job is to bring my clients back down to Planet Earth. I will not make false promises or inflate your expectations. No one will ever be able to see the case through your eyes. That said, you must bring yourself out of that mindset. You can think your case is worth a million dollars, but it doesn’t really matter what you think. What matters usually is what a jury is apt to think, or before that, what an insurance adjuster assigns to the case. However, people still ask me, “How much is my case worth?” Well, there is no magic formula.
The best way to determine how much your injury claim is worth when you are injured in a car accident is to look at how an insurance company would value your claim. An insurance carrier will first look at the types and amounts of damages suffered and then at percentage of fault. This includes medical expenses incurred to treat an injury, such as doctor’s visits, hospital expenses, emergency room expenses, fees for chiropractic care, physical therapy and any type of medical devices that may be needed for your recovery, such as neck braces or crutches. If you don’t have health insurance, there are other ways to get medical treatment. Medical expenses are typically used as a benchmark for determining the reasonableness of damage awards. Keep in mind you may have a very serious injury, but without medical records and expenses, your case may very well be compromised. That is why I cringe when clients call me six weeks after an accident. They tell me of the serious injuries they sustained, yet they still have not seen a doctor! Future medical expenses are recoverable if the injured party can show that he or she is likely to need continued medical care as a result of the accident or injury. This amount may be determined by the advice and opinions of your doctors and/or other medical specialists you have seen for treatment. Generally speaking, the future need for medical care must be “reasonably certain” to be incurred. Pain and suffering damages may be granted for physical pain resulting from an accident or injury. A jury will look at the nature of the injury, the severity of the pain, and how long you are likely to be in pain to determine the amount of damages. Remember that NO ONE will see this case through your eyes. A jury’s evaluation of your case may differ greatly from your own. If you are unable to work because of your injury, you may recover the amount of money you would have earned if you had not been injured. Lost wages should be documented where possible. If you have a business that suffered, you might have to show an earnings track record before the accident and your earnings after the accident. If there is a disparity, you might be able to prove that as an element of your case. You may recover damages for lost earning capacity if you can show that your ability to earn money in the future has been impaired. Past earnings will be used to determine an appropriate damage award, but a jury will likely focus on what you might have earned had the accident or injury not occurred. Again, speculation isn’t going to cut it. You will need to demonstrate to an insurance adjuster or jury that your numbers have a strong foundation. You may also obtain recovery for the value of property that was damaged, including your vehicle and its contents. This also includes loss of use (i.e., rental value for the period of time you were without a car). Please remember that defendant (or their insurance company) is not obliged to buy you a new car! They are only supposed to put you back in the position you were before the accident happened. Finally, every client has to make a decision at some point. They can either take the offer being made or generally speaking, file a lawsuit against the other party. In some cases, filing a lawsuit makes sense. However, you need to take into consideration the costs of filing a lawsuit. Even though you may recover more money from a jury, you may actually end up with less money when all is said and done. |
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March 2024
by Robert MansourRobert Mansour is a personal injury lawyer serving Santa Clarita, Valencia, |