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.
Sometimes clients call my office and they say, “Rob, I was involved in a personal injury accident. I really don’t know what to do.” A car accident occurred, T-bone, rear-end, whatever the case may be, and they really don’t know what to do so, and so I want to spend a few minutes here as I talk to you from my office giving you some ideas about what to do if you were injured in an automobile accident, and you have a claim that you’d like to bring. So there are a few things to keep in mind.
First things first, make sure that you take photographs of every vehicle that was involved in the accident. If you have the energy at the scene of the accident, and you have a camera or perhaps a cell phone that has a camera, a camera in it, take pictures but not only of your vehicle. I have a lot of clients they bring me lots of pictures of their vehicle only, and that’s fine, and that’s very helpful, but if you can, take pictures of all the other vehicles that were involved in the accident as well. The other thing that I would add is take pictures from several different angles because a lot of times because a picture is a static image, and it’s a two-dimensional image, sometimes it’s very difficult to assess the damage just by looking at it in, from one angle. If you’re taking a look at a vehicle with your own eyes you have three-dimensional ability, and you can, you can kind of assess the damage a little bit better.
So if you’re taking a photograph, make sure to take photographs from several different angles so that you’d better tell the story. If you don’t have photographs, it’s not terribly helpful when you’re trying to convince a jury or an adjuster or anybody else of the severity of the impact. So pictures really do tell a thousand words so to the extent that you can take photographs. If your vehicle has already been towed to a yard, see if you can get to that yard or have a friend or a family member go to that yard and take some pictures of your vehicle and the more the merrier. There really is no limit as to far, as far as how many pictures are good. Also, again, pictures of the other vehicle are very, very helpful.
Also, you want to make sure that you provide your lawyer with all of the auto insurance information. We need, as your attorneys, we need to know your policy number, what insurance company you had, whether your insurance was in force at the time of the accident and also what kind of coverage you had in your insurance policy, and that information is very important because it provides us with a contact person.
Also, it’s very helpful to find out if you had something called medical payments coverage. Sometimes your own insurance company will pay for your medical bills if you need to turn to them to do that. Of course you can use your own health insurance as well, and sometimes you can go to a doctor and see them on what’s called a “lien” basis, and a lien basis means that the doctor will provide you with physical therapy and care, etc. if it’s appropriate, and that doctor will expect to be paid later on when you settle with the responsible party. But anyhow, get all of your insurance information that when your attorney contacts your insurance company, they have all the information they need. Also, very important, make sure you have the insurance information for all the other parties involved to the extent that you can. Sometimes you’re unable to get that at the scene of the accident, and I understand that.
Many times that will be on the police report. Speaking of which, very important, if there is a police report, please provide it to your lawyer. It’s going to have a lot of important information in there, sometimes insurance information, also the officer’s opinion about the responsible party, sometimes there is information in there about witnesses, the severity of the impact, and how the accident occurred. So the police officer’s report, which by the way, is not the definitive answer, if you will, as to who is at fault, but it’s helpful, and it’s one of the pieces of the puzzle that will be very helpful to your lawyer. Sometimes you won’t have the police report. Instead you will have a police report card that the officers give you at the scene and it will have the police report number on it. Give that to your lawyer so they can secure the police report from the responsible agency. Also sometimes officers take photographs at the scene of the accident and your attorney can obtain those as well.
Another thing that you can think about is property damage estimates. If your car has been damaged, make sure you get a property damage estimate for your vehicle, maybe even two. Take it to a shop, a dealership, wherever you want to take it and make sure you get a detailed property damage estimate because sometimes people say, “Well it was a total loss.” Well, a total loss is fine that helps me a little bit, but a total loss doesn’t really mean much except that the value of the car was less than what it cost to fix the car. So if you have a $1,000.00 vehicle, and you have $1,500.00 worth of damage to that vehicle, which isn’t very difficult to do by the way, you might have a total loss. But that doesn’t really tell the attorney anything about what exactly was damaged in the automobile accident.
Your property damage estimate is very helpful because it’ll show whether there was a any frame damage, any damage to the doorframe, any damage to the axle of the vehicle, wheel alignment issues, etc., bumper support structures. Those kinds of things, those kinds of bits of information in a property damage estimate can be very helpful to the attorney when they’re advocating for you. So even if you’ve been told, “Oh, it’s a total loss,” see if you can get a property damage estimate nevertheless. Sometimes your own insurance company will provide with a detailed analysis of what was damaged in the accident, and of course, it’s unlikely, but if you have a property damage estimate from the other party, provide it to your lawyer as well.
Also, you should get medical care right away. Don’t wait around hoping that you’re going to feel better. Sometimes people try to tough it out, and all they’re doing is hurting their own case because the longer you wait from the date of the accident to when you first seek medical treatment, the longer you wait the more the responsible party, the insurance company for the responsible party, is going to doubt whether you had any injuries at all. So make a list of all the doctors that you go to and make sure that you seek medical care right away even if you just make sure you’re all right because if you wait too long, they will doubt whether or not you were injured. And also, every time you go to the doctor after an automobile accident, make sure you mention to the doctor why you’re there. I have many clients they go to the doctor and they say, “Oh, my back hurts or my neck hurts,” or something like this, and the doctor provides care, but they never mention to the doctor that it was because of an automobile accident, and as a result, the absence of that information, some insurance adjusters will take a look at that and say the absence means that it wasn’t related to the car accident. You were there for some other reason. So you want to make sure you always provide your healthcare providers with the information that is relevant to the matter so that it ends up in your medical file.
Also, when you go to the doctor, make sure that you mention everything that bothers you. Start from the head and make your way down even if you’re not terribly sure, make mention of it to the doctor because sometimes some people try to tough it out and they don’t mention their back because, “Oh, it, I don’t want to trouble the doctor or, or I don’t want to trouble the physical therapist,” but the problem is that all they’ve done is hurt their own case because once again, the absence of information in medical records, as far as some insurance adjusters are concerned, the absence of information means it never happened. So make sure that you always are very mindful of what you are telling your healthcare professionals, and plus the healthcare professional wants all the information so they can provide you with the best care.
Finally, if there were any witnesses to the accident, make sure that provide that information to your attorney. Sometimes the witness information is in the police report, but sometimes it’s not. Any passengers in your vehicle might also be witnesses to the accident. So once again, it’s very important to provide your lawyer with more information than less. Some people go to the lawyer and they sign up with the attorney and they think everything’s going to happy magically. Not quite. We still need assemble information because remember, insurance companies don’t pay out of the goodness of their heart. I mean of course there are always very nice adjusters and in many cases, they’re trying to do the best job they can, but they don’t write you a check just for fun. They need to have evidence. They need to have information, and so you need to provide that information to your lawyer so your lawyer can advocate for you.
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.
The steps of a lawsuit can be quite complex. Your chance of success in a lawsuit is contingent on whether you can make the right decisions at the right time during this process. An experienced lawyer can help you assess your case and make the right moves. As a party to a lawsuit you have the right to hire an attorney to help you navigate your way through this complex process. More often than not, it is a good idea to contact an attorney to advocate on your behalf to get the best resolution to the dispute. You don’t want to be the party that does not have an attorney. Do not go up against an experienced professional all by yourself.
The litigation process can vary depending on the case, but generally speaking, it proceeds as follows. Two or more parties have a dispute. The dispute might be over a personal injury, a car accident, financial loss, medical bills, emotional distress, wrongful death, or some other matter.
Certain types of cases require a lawsuit to be filed by a deadline. Don’t be reluctant to learn if you have a good case. See a lawyer to discuss. The time requirement is called a statute of limitation. It is important to make sure that you file your lawsuit before the deadline. The law imposes a deadline because as a matter of public policy, we generally cannot hold people responsible forever. Determining what deadlines apply is another reason why it is important to contact an attorney early on in the process. Your attorney can check to make sure you beat the deadline and can help file your lawsuit properly.
In some states it is necessary to make a formal demand to the other party before filing a lawsuit. Often a great way to satisfy this requirement is to have your lawyer send a letter to the opposition stating your demands. A lawyer’s letter is ideal because it not only satisfies the formal demand requirement but it also prompts the opposition to take you seriously. In some cases, your attorney may be dealing with the other party’s insurance company instead of dealing with the party directly. In motor vehicle accident cases, the party at fault is generally covered by insurance, so their insurance company would be responsible for settling the dispute.
Once the formal demand has been made, pre-litigation settlement discussions usually take place between your attorney and the opposition. If a settlement cannot be reached and you are the plaintiff, or in other words, the person seeking monetary or some other kind of relief, the lawyer will file a complaint on your half with the municipal, county, state, or federal court depending on the specific circumstances involved.
In some cases (usually contractual), arbitration might be required instead of a lawsuit. Arbitration is similar to a trial but it is less formal and its judgment may or may not be binding. Your attorney will be able to represent you in the arbitration process. The complaint is a written explanation to the court claiming what has been done to you and what relief is sought. The complaint must be officially served to the other party. This is usually done through a service of summons. Serving the other party can be a tricky process.
Sometimes the other party must first be tracked down then served personally. At other times a summons must be published in a newspaper. Regardless of how the other party in your lawsuit must be served, your attorney will handle this task for you. If you are the defendant, or the person being sued, your attorney must and will file an answer, or a written response, to the complaint on your behalf. As the defendant you typically only have 20 to 30 days to respond to a complaint. Within this time frame you must either, admit or deny the plaintiff’s claim, move to dismiss the lawsuit, and/or assert legal defenses to the plaintiff’s claim. This is a crucial step in the lawsuit process and your attorney will be able to help you to respond in the best manner possible. At this point the defendant can also file a counterclaim or cross complaint, which is a complaint against the plaintiff (or in some cases, another allegedly responsible party). If you are the plaintiff, and the defendant files a counterclaim against you, it would behoove you to have an attorney to defend you against the counterclaim.
Next, the attorney will come up with a discovery plan and a timeline for your lawsuit. The purpose of discovery is for the attorneys to find out what evidence both sides have in their favor in the lawsuit. Both sides generally will be asked to answer interrogatories, or written questions; to partake in a deposition, or oral questioning, which must be answered under oath in front of a court reporter. If this happens to you, your attorney will be present to assist you through this process. You will need to verify your injuries and you could be asked to produce other types of evidence as well.
During this time your attorney can line up expert witnesses on your behalf, accept or reject arbitration, file a motion to compel the other party to reveal information, move for the lawsuit to be decided without a trial, and/or file a motion to narrow issues of the lawsuit or for summary judgment.
If the lawsuit continues, both parties will be asked to attend a pre-trial conference, or a settlement conference, in which the attorneys will try to reach a settlement in order to avoid the uncertainty and expenses of trial. If the settlement talks fail, the matter will head to trial or arbitration. If this happens, your attorney will assist you in presenting evidence and statements to a jury or judge and calling witnesses to testify.
At trial, the process usually is as follows. Both sides present their opening statement, present evidence, cross-examine the other side’s witnesses, and present a closing argument. After both sides have presented their cases, the judge will give instructions to the jury or the judge will decide the case. Next, there will be a judgment based on the jury’s or the judge’s decision.
If either side is unhappy with the judgment post-trial motions and appeals are likely to follow. Either the winner or loser can appeal. Even a winner might appeal the amount of the reward. Both sides have a right to make an appeal if there was a legal error made at trial. An appeal could take a very long time.
After all is said and done, the next step is to collect the judgment. Collecting the judgment can take a lot of twists and turns and become very complicated. It is a good idea to have an attorney to assist you in this process.
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.
Many prospective clients who call my office have no idea what to provide to their lawyer when involved in a car accident. I try to explain to clients that I need all the “pieces of the puzzle” because I’m not a psychic. I’m not going to magically get copies of your hospital bill, and I’m not going to magically have photos of the damage to your vehicle or your injuries, etc. I need the client’s help in obtaining these materials.
Here is a list of what I encourage my clients to bring to the first meeting.
Dear Client: Here is a list of everything I need to help you with your case:
ALL Photographs depicting damage to your vehicle. If you don’t have any photos, please try your best to take some. Photos should capture the damage from several angles. Digital pictures are best and can be delivered to us by email and/or disc. If your insurance company took photos, please ask them to get you those pictures as well. If you are already our client, you can have your insurance company send the photos directly to our office. It’s your file, so you are entitled to the photos.
ALL photographs depicting damage to any other vehicles involved in the accident.
Your auto insurance information (name, address, policy numbers and claim numbers if available). If you have the “Declarations Page” showing evidence of insurance covering the date of the accident, that is best. This page outlines the important information including policy number, amount of coverage, etc. If you don’t have it, please call your insurance company and ask them to fax it to us.
Insurance information of all other parties. Including insurance name, policy numbers if known, claim number if known, adjuster, address, etc.
Property damage estimates (if available). Even if your car was a “total loss,” it is often helpful to obtain a good property damage estimate that outlines all the parts of your car that were damaged. Frame damage and other significant entries on your property damage estimate can affect your case.
Any and ALL doctors and facilities with whom you have treated. Please provide all contact information (names, phone numbers, addresses, etc). Make sure that whenever you initially go to a doctor for treatment related to this accident, you MUST tell the doctor’s office you are there because of the accident. If you don’t mention the accident, some insurance adjusters will doubt whether the treatment was accident-related.
Please let us know if you have ever been a Medicare recipient. Also, please provide us with your health insurance information.
Police report (if available). If you have the police report number, we can order the police report for you. If you already have the police report, please provide a copy. If there was no police report prepared, please let us know that as well.
Were there any witnesses? If yes, we will need their contact information. Once you provide your lawyer with this information, he/she will be better able to represent you. They need all the pieces of the puzzle if they are going to paint a picture for an insurance adjuster.
When it comes to car accident cases, or other injury cases, there are times when involving an attorney doesn’t really add value to your case. When a client contacts my office, there are several things that I discuss with them. I would say at least 50% of the time, I tell the client they are better off without a lawyer. There are several factors that influence this advice:
First, if the property damage is not extensive, it is difficult to persuade a jury to give more than a few thousand dollars to the injured party. While the impact may seem huge to the client, all that matters is what an insurance adjuster or jury may think. If they have to squint to see the property damage, it’s going to be an uphill battle. If the dollar amount of the property damage estimate is low, people often think the impact was minor.
Second, simple soft tissue injuries are a tough sell. Remember that all that matters is what an insurance adjuster thinks – or what a jury thinks. Since September 11th, juries don’t really care much for plaintiffs who complain of ‘soft tissue’ injuries. Most average people have aches and pains. Everyone is having a tough time with something. Some have financial troubles, family issues, illness, etc. Folks simply don’t have patience for others who complain of aches and pains from car accidents.
In my 18 years of practicing law, most were spent as a defense lawyer. I’ve handled dozens of trials, and I can only recall a handful of times when the jury awarded the plaintiff more than $3000 in a soft tissue injury case. In most cases, they awarded the plaintiffs a big fat zero!
Finally, if medical treatment has been delayed or inconsistent, I am reluctant to handle the case – regardless of the injury in most cases. Insurance adjusters and juries see delays in treatment as a liability. If you delay or have serious gaps in medical treatment, then your actions beg the question: How bad could your injuries be? If you were really hurt, you would have been more proactive about your medical treatment!
When clients call my office, I tell clients they might be better off without me, especially when you consider the typical one-third contingency fee in personal injury cases. If I know the recovery will be minor, why should I take 33% of the client’s potential recovery? That often leaves them in a worse position. There are times when a client really needs help, even with a minor case. However, a good lawyer shouldn’t take every case that presents itself. It is our duty to tell clients of their options, and they can decide. However, there are times that I won’t take the case because it simply would be a disservice to the client. I just give them some advice and encourage them to get a second opinion.
by Robert Mansour
Robert Mansour is a personal injury lawyer serving Santa Clarita, Valencia,