Personal Injury Lawyer

Transcription

1 Personal Injury Lawyer What You Should Know Before Picking a Personal Injury Lawyer! What Does a Personal Injury Lawyer Do? 7 Tips to Hiring a Great Personal Injury Lawyer Questions to Ask Before Hiring a Lawyer How to Get More Money in Your Settlement

2 Table of Contents What does a Personal Injury Lawyer do?... 3 Basic Legal Terms & Concepts Elements of Negligence in a Personal Injury Insurance Claim The Significance of Liability in Tort Law Auto Accident Settlements and Duty of Care Negligence Lawsuit and Settlement Claims: Understanding Causation Tips to Hiring a Great Personal Injury Lawyer questions injured victims should ask before hiring a Personal Injury Lawyer How Your Personal Auto Policy Affects Your Injury Claim Getting More Cash for Personal Injury Settlement Damages Resources Disclaimer P a g e

3 What does a Personal Injury Lawyer do? Q A I don t know much about Personal Injury Lawyers. What do they do? Personal Injury Lawyers specialize in helping clients who have suffered a physical, emotional, or mental harm and believe that another party is responsible for that injury. Q A What kind of training do Personal Injury Lawyers have? The rigorous education required depends on the jurisdiction in which you live but generally you will need a LLB (bachelor of laws degree), usually 3 years in duration.. Q A How are Personal Injury Lawyer licensed? They must pass a State examination. Q A What are the advantages of professional Personal Injury Lawyer services? If you've been injured in an accident, on the job, or by a negligent healthcare provider, your first step should be to do some research and find a responsibly, well-respected personal injury attorney. A good attorney will listen to your story and will set realists expectations for the amount of money you may be able to collect. Q A Are there any risks? There are many things to keep in mind when choosing a personal injury attorney, not the least of which is to be sure that the personal injury attorney has your best interest at heart. It's important to keep in mind that there are many personal injury attorney scams out there. There are unaccredited lawyers and other schemers who try to extort large amounts of money from people or companies to make themselves rich. 3 P a g e

4 Basic Legal Terms & Concepts If you haven t been involved in negotiating personal injury settlements before then you probably don t know much about how the process works. Don t let this stop you. If your case is pretty straightforward, your damages are clearly documented and liability is easy to establish, there shouldn't be any surprises. While there is a lot to learn about the law only a little of it applies to your specific case. But before you look into the details you should get a handle on the basic rules at play. That s what this section is for. Elements of Negligence in a Personal Injury Insurance Claim It's important to know the elements of negligence and legal terms associated with personal injury insurance claims. These basics will shed some light on the process and help you earn the respect of the claim adjuster. The process of filing your personal injury claim starts the instant the accident happens. If you're reading this for the sake of being prepared for the worst you're one step ahead of most people. If you're reading this after you've been involved in a car accident (or have been injured in some other way) then you might have some backtracking to do. The first stage of the process of proving negligence is gathering information - and a lot of it. This includes police reports, car accident photos, injury photos, medical records, witness statements, etc. The information you gather should help you confirm all the elements of negligence. Sometimes this information-gathering work isn't possible because your injuries are too severe for you to start playing detective. In these cases you should hire a personal injury lawyer who will collect the evidence and make the case for you. So, what is negligence? Negligence - conduct that falls short of what a reasonable person would do to protect another person from foreseeable risks of harm. If you want to win a personal injury settlement, you have to prove the following elements of negligence: 1) The defendant must have owed you a duty of care. 2) They must have breached that duty in some way. 4 P a g e

5 3) By doing so they caused you damage. 4) And that damage is verifiable. The first formal step in filing your personal injury insurance claim is notifying your own insurance company. This is an obligation you have to fulfill within the first few days following your accident. You'll also want to notify the defendant s insurance company to let them know that the accident happened. These are letters that, in legal terms, give notice of injury. It's important to realize that these letters are only notifications, they do not mean you have to follow through with seeking a personal injury settlement. They simply guarantee that everyone who should know about the situation does (and can t say later on that they were left in the dark). Later when you know the full extent of the costs you've incurred, which in legal terms are referred to as damages, you'll write a demand letter. The personal injury demand letter is just what it sounds like - a letter demanding compensation for your injuries. It will go out to the insurance company you're filing your personal injury claim against. It's possible for your claim to end right there. The insurance company can agree to your demand and offer you a settlement which you accept. More likely though there will be some more dialogue and letter writing in which you have to present your evidence, witness statements and establish that the party you are filing against has breached their duty of care. Duty of Care - a person's legal obligation to maintain a standard of reasonable care while doing anything that could foreseeably harm others. You'll also have to confirm all of your claimed damages with documentation. This may include doctor's bills and a letter from your Human Resources department confirming the time you missed work due to your injuries. When all this is finished (a long journey you'll have to be patient for) you will receive an offer you agree with. If not you'll be filing a formal lawsuit. To accept a fair personal injury settlement offer you'll have to sign a form, known in legal terms as a release. There are more details to the elements of negligence, but in essence that s all there is: -notice of injury -demand letter -presentation of evidence and documentation -negotiation -acceptance and signing a release 5 P a g e

6 Of course the last step doesn t always come so easily and you may have to take a few detours. This could mean (more legal terms): lawsuits, litigation, mediation or arbitration. Knowing the elements of negligence cases helps you understand the process of obtaining your settlement and tells the insurance claim adjuster that you understand how the game works - and that puts you in a stronger position when it comes to negotiating. The Significance of Liability in Tort Law Proving liability in torts of negligence is an important part of winning favorable personal injury settlements. Understanding what "being liable" actually means is essential if you want to make a strong case. Liability refers to where the fault lies. Liability in tort law is all about who is responsible for an accident or injury, and whoever possesses the most liability will ultimately have to pay for it. The truth is that in most personal injury accident claims liability is easy to establish. In most cases it requires little more than common sense and logic. "Liability in tort" sounds like legal mumbo-jumbo and a complex issue that requires a lot of legal knowledge to determine. It is in some ways the holy grail of personal injury settlements because as long as this issue remains uncertain the insurance companies can argue against settling a claim. Here s the idea behind Liability: In almost all cases, an accident happens as a result of someone being negligent. In non legal terms, it results from someone being careless. The person (or business, agency, etc.) that was negligent is then responsible to pay damages to the injured person. That's liability. It falls on the person who caused the accident to happen. This is why the moments immediately following an accident are so important. This is the time when you can best remember what happened, find witnesses who can verify what happened and even take auto accident photos to use as evidence later on. Liability is easy to establish if the cause of the accident is easy to establish. Here are some simplified examples showing liability: 1) If a car fails to signal for a turn and another driver is injured after hitting the car then the non-signaling driver was negligent, and therefore liable. 6 P a g e

7 2) If there is a slip and fall accident resulting from a business not salting their icy sidewalk then the business was negligent, and therefore liable. 3) If someone is burned using an electrical product that malfunctioned during normal use then the manufacturer was negligent, and therefore liable. Now you see how clear cut liability can be. Unfortunately most cases aren't that simple. In all of the above cases there is a very good chance that the victim was partially at fault. 1) Maybe the second driver was talking on their cell phone and distracted. 2) Perhaps the person who slipped wasn t wearing proper winter footwear. 3) It could be that the burn victim used the product properly but didn t wear recommended safety gear. This is why the issue of liability should be forefront in your mind from the moment you come out of an accident. While both people are often partially at fault, the law stresses in most states that the person who was more negligent must pay the other at least a portion of the damages. The more the defendant can prove you were also partially liable the less they will have to pay. As you read on we'll discuss ways to protect yourself in these situations. There are steps you can take after an accident, and even before an accident, that can reduce the amount of liability that can be attached to you. Auto Accident Settlements and Duty of Care Getting fair offers for auto accident settlements often relies on clearly establishing Duty of Care. It's one of the cornerstones of any liability claim. We ll use the example of an auto collision as we explore this concept. (Auto collisions are often straightforward cases because the law is very specific with almost all aspects of driving, so defining someone s duty is usually easy.) The idea behind Duty of Care is this: Every one of us has an obligation to act in a way that will not injure anyone else. When driving a car we all have a responsibility to act within the law and, beyond that, act like any reasonable person would in order to look out for the safety of others. This includes cyclists, pedestrians and other drivers. In many auto accident settlements cases there is a clear duty of care at play. Drivers have to signal turns, they have to stop at stop signs, they have to obey traffic signals and they have to observe the speed limits. 7 P a g e

8 After an accident you have to determine whether or not that duty of care was upheld. If not it's referred to as breach of duty. Anyone who is determined to have a breach of duty is negligent in an accident, and therefore liable. This is not only an important factor in determining liability in a car accident, it also plays on the basic rights of citizens. One of the key factors that makes our society work is that we know that we all have a duty of care towards each other and we all have to uphold that duty. Individuals who choose to pursue auto accident settlements on their own should use these legal terms when talking to the insurance adjuster. If you know that the accident was caused because the other person made an illegal u-turn then you should state that the liability falls on them because their duty of care was to not make that u-turn. Use the words sparingly and in context. The idea is to let the adjuster know that you understand how auto accident settlements work and you won t be strung along. In pretty much any type of auto collision there is a duty of care at play, but it doesn t necessarily fall on the driver. The breach of duty may be a result of the municipality failing to mark an obstacle or not properly maintaining the roads. In other personal injury cases there might be no duty of care at all. If the accident happened after entering a room marked Danger Keep Out then the property owner can argue they had no duty of care towards you. It's important to realize right from the start that if this responsibility doesn t exist, your claim won't be successful. Negligence Lawsuit and Settlement Claims: Understanding Causation Causation is one of the keys to winning any negligence lawsuit. This page discusses what is meant by causation. As a basic concept it's something you're probably already familiar with. The word 'causation' is one of those pieces of legal jargon that doesn t differ much from everyday language. Causation is likely to be argued after the duty of care has been identified and the breach of duty has been confirmed. In other words, once it's been shown that someone has broken their legal obligation to act carefully and within the established rules governing their actions, there is still more to be discussed. 8 P a g e

9 The person who is in breach of duty will investigate causation to try to demonstrate that they are not solely at fault. What exactly is causation? It s just a fancier way of saying the cause. As pointed out in the explanation of liability, there isn t always one lone cause of an accident. This fact plays heavily in negligence lawsuit negotiations, and it directly affects the amount of your personal injury settlement. Take the example of someone slipping while walking on an icy sidewalk in front of a business. The initial cause will be pointed out by the victim and, in turn, they'll place the liability on the store owner. This is the obvious thing to do because there are clear bi-laws in most every area stating that the business owner must maintain their entranceways. Once confronted with that information, the business owner and their insurance company will look deeper into causation. In most cases this is not a move to get them totally off the hook. Arguments of this kind are almost never made with the intent of getting rid of the claim completely. The point they want to make is that while the business owner was at fault, the victim was also somewhat negligent. Photos of the accident might show that the claimant wasn t wearing proper footwear for the winter. While everyone should have the right to be protected from dangerous walkways, they should also do their part to protect themselves. If the injured person was wearing high heels after a freezing rain storm on a clearly weathered sidewalk it might be said that they were also negligent. Closer investigation might find witnesses who saw the person running before they fell. Running in such bad weather conditions, especially with improper footwear, can easily be deemed careless. Both of these things go towards proving causation in a negligence lawsuit. So even when there is a clear case of fault there is still a chance that more underlying causes can be found. These debates about causation will, in the end, determine how much each person was careless (or negligent) in the accident. As we'll show later on in the negotiation stage, this causation will be broken down into an exact percentage to help determine how much money the claimant is entitled to. 7 Tips to Hiring a Great Personal Injury Lawyer Hiring the right personal injury attorney takes time, effort and good thought. Picking the right personal injury attorney is critical. Many attorneys advertise that they accept personal injury / wrongful death cases but few really know what they are doing. Here's how to know you found a good one... 9 P a g e

10 Web Site: Check his/her web site. Though it is tempting to simply go through the phone book, a good attorney will have a strong website, outlining his/her values, what he/she will do in cases like yours, and what you can expect. Board Certification: Be sure that he/she is a Board Certified specialist. This is extremely important. All attorneys have passed the Bar Examination - before being allowed to practice law. Very few have gone the extra step of being Board Certified. It's a lot of work - and few are capable of passing the extra examinations necessary to be Board Certified. The Nation's premiere Board Certification group is the National Board of Trial Advocacy. Experience: Ask about experience. Again, many attorneys advertise that they will accept personal injury cases, but few have actually resolved many of them. A solid personal injury attorney will expect - indeed hope - that you ask about his/her experience. Insurance: Ask if he/she is insured. Any good attorney will carry "Errors and Omissions" insurance, just in case he/she makes a mistake in your case. Don't hire an attorney who has no insurance. It's too dangerous. Meet Eye-To-Eye: Meet the attorney eye-toeye. Remember, a qualified personal injury attorney doesn't need you. And, you don't need him/her. A good personal injury attorney will explain to you that the attorney/client relationship is a "want" and a "like" relationship - not a "need" relationship. Never sign an attorney/client agreement on your first meeting - in front of the attorney. Instead, always wait for the attorney to suggest that you take the agreement home, read it carefully, and phone with questions. It's far smarter - and puts you under less pressure. Martindale-Hubbell Rating: Hire a attorney with a nice Martindale-Hubbell rating. This service evaluates lawyers in the U.S. and North America based on peer review. Their website, Martindale.com has a helpful attorney locater service and wish explain the rank system. Complete Honesty: Always be totally open and honest when discussing your case with a lawyer. Tell the attorney as more as you can just about what happened. Try to remember every detail. Any documentation and images you have of your injuries and treatment wish be a big help once evaluating your case. 10 P a g e

11 10 Questions to ask Before Hiring a Personal Injury Lawyer 1. What is your contingency fee? Most personal injury fee agreements are based upon the contingency fee agreement. This means that there is no legal fee unless there is a monetary recovery. If there is merit to your personal injury case, rest assured you will find an attorney to take your case on a contingency fee agreement. Contingency fee agreements are negotiable and typically range between 25% and 40%. The stronger the case and more severe the damages, the more negotiable the fee agreement will be. 2. Will I be responsible for any advanced case costs at all if we lose? In addition to the contingency fee, lawyers also charge any costs advanced. The costs can be substantial, and are almost always deducted from the client's share. Make sure your lawyer takes the case whereby you are not responsible for the costs, even if you are unsuccessful. Make sure to ask for a guarantee that you will not be responsible for any out-of-pocket expenses. 3. Have you tried these types of personal injury cases before? Lawyers are hungry for personal injury lawsuits. There is immense competition and advertising. Do not assume just based upon advertising that the lawyer has handled or tried your type of case. Ask for your lawyer's experience and results. Ask to speak to former clients, if possible. You need to control the consultation. Do not be intimidated or bullied by the lawyer. You are the one hiring, remember that. 4. Will you be the attorney working on my case? Be very careful about going to the name everyone else knows. Lawyers love to get clients signed up and then sit on the cases, while they sign up additional new cases. This is certainly not all lawyers, but it happens all too often. Lawyers will sign up a client and then wait months to file suit, just prior to the statute of limitations. That delay is harming you. It is delaying money that you may be entitled to. Ask the lawyer if he will have the full time necessary to devote to your case? I would ask the lawyer how many other cases he has pending and how much of his time does he plan on devoting to your specific case? 5. When will my lawsuit be filed? Demand specific answers. Many lawyers do not like to work on specific cases until there is a deadline. I have seen all too often, viable lawsuits sit for a year or two because there was no pending statute of limitations. If you have a lawsuit, I am a strong believer that it can be very beneficial to file suit sooner than later. Unless there is a justifiable delay in filing, I would ask if your case will be filed within 2 weeks? 11 P a g e

12 6. Will my case actually go to trial? And if so when? Your lawyer better be expecting every single case to go to trial. If your lawyer tells you that your case is going to settle, be very cautious about what you are settling for. It is hard to be properly compensated if you are not prepared to go trial. Ask for time frames. It will be hard to give exact answers, but these are relevant questions. Many personal injury cases can be resolved within 2-3 years, sometimes less. 7. What is my case worth? Ask this question. Your lawyer will have some idea. It is true that it can be a broad range based upon discovery, liability and unknown medical issues. At the very least, your lawyer should be able to provide a spectrum and explain the unknowns to you. Use your own judgment. Do not be fooled by lawyers who make promises that seem unrealistic. 8. Will you be the actual attorney handling my case? Be careful about the meet and greet, and then never seeing that lawyer again. Find out specifically who will be handling your case? Who will be your contact? Who will you be speaking to on the telephone, etc? Be careful about meeting the persons in charge, only to later realize that an associate will be handling your case. 9. What will my participation in the lawsuit be? This is a very important question. Lawsuits are about teamwork. Make sure you understand your role and what is expected (or not expected) before hiring your lawyer. If you are very passionate about your case, you may want to stay more involved. Will your lawyer let you? (Some will and some won't). 10. Will you get me more money than other attorneys and why? Personal injury lawsuits are typically about money. Sometimes, you'll be in a position to make change, but a majority of the cases focus on obtaining the maximum recovery for you. You need to hire the personal injury lawyer that gives you that best opportunity. You only get to try your case once. You need to make the most of it. It is your lawsuit, and you need to be prepared to ask tough questions of any lawyer you are considering to hire. How Your Personal Auto Policy Affects Your Injury Claim Filing an injury claim under your own personal auto policy is obviously easier than pursuing a third party. But there are still a lot of things to consider and there are still mistakes you can make. When filing an injury claim through your own insurance coverage your basic rights to compensation remain the same, but the way you go about getting compensated is quite different. 12 P a g e

13 An injury claim through your personal auto policy requires no need to establish liability and the negotiations will typically be easier because tricky figures like punitive damages won t apply. In states where no fault laws are in effect you have no choice in the matter and must file the injury claim through your own policy. You'll also have to file under your policy if the negligent party is uninsured or inadequately insured. In that case you'll be filing under the Uninsured or Underinsured provisions of your policy. As always you'll still need to notify your insurance company as quickly as possible after the accident. You must let them know that injuries were sustained, but you aren t necessarily making a formal claim. At this point you still may decide to file under the other party s policy. Either way you want to request a formal letter from your insurer stating that they were notified of the accident. When you get that letter file it away safely. This will prove you complied with your obligations if something goes wrong later on. If you do end up making the claim through your own policy your insurer is entitled to certain privileges. These include medical records, your employment records (for salary compensation), your full cooperation and in the case of car accidents they can inspect your vehicle. They're also allowed to take money back from you if you make a settlement later in a third party claim. The medical records are important. The insurance company will either be waiting for them or sending you a release form so they can attain them on their own. If you don t send them or sign the release then your claim isn t going anywhere. Sometimes their release asks for more information then you feel is relevant, so read carefully and cross out or amend anything you feel is too much. They won t always accept it, but try as best you can to make them see your point. If they make a formal investigation into your injury claim you must cooperate with them. This not only applies when they deal with your personal injuries but also if they decide to make their own claim against the negligent party. Your cooperation, like anything else, is to be given within reason. You'll mostly have to provide evidence, names of witnesses and verbal statements of your own. Subrogation is something that will come up in some situations. This is when your insurance company settles with you but then pursues a third party claim on their own. Think about this carefully before filing under your own personal auto policy and before signing a release for subrogation. When you sign this for your insurer it means that they can try to get their money back from the other insurance company; but it also means that you cannot make a third party claim of your own. 13 P a g e

14 Getting More Cash for Personal Injury Settlement Damages Damages ultimately determine what cash for personal injury settlement payments you'll get. In the insurance world these include the injuries, lost income, pain & suffering, and destroyed property suffered by the claimant. Damages is also the word used to represent the dollar figure each of these things represent. Everything that effects the final payout falls under the category of general damages. Special damages, though, are those losses represented by actual documented figures. When an injury requires medical treatment the injured person has expenses that range from ambulance fees to doctors' fees and medication. These losses all come with bills, so there's no guesswork involved in deciding how much they actually cost. Aside from medical losses, there are also damages that occur more indirectly. Lost wages is the big one here. If the injury causes you to miss a week of work then the person liable for your injuries must compensate the form of cash for a personal injury settlement. For less serious injuries there isn t a lot more to do then simply add up all of those figures and make a demand. For more serious injuries the damages get bigger. When the injury is something that will be long lasting or permanent the insurance company has to find a way to determine how much that actual disability is worth. That figure will have to be added to the special damages that already exist. You'll definitely want to retain a lawyer for this type of case. These extra damages include everything from future medical bills to lost opportunities. Even less serious injuries cause pain and suffering, which can be a loss in and of itself. For long lasting injuries the pain might recur for years. If there is a visible scar then that will result in a lifetime of potential embarrassment, which is a form of suffering. A cash for personal injury settlement figure has to be negotiated and attached to all of these things and added to the list of special damages. 14 P a g e

15 Punitive Damages The losses aren t done yet. While it seems like the list of damages is already long, punitive damages still haven t been considered. Punitive is a word that means "to inflict punishment." In more serious and long-lasting injuries it's these types of losses that often cause the massive insurance settlements you read about in the paper. Most of the time the dollar figure won t get that high. Punitive damages are normally determined with a formula that multiplies the special damages 1.5 to 5 times - sometimes more. We look at this process much closer in another section on compensation. The damages you claim in your personal injury settlement demand have to be 100% related to the accident in question! It can be clear to everyone that the other person was at fault, but that still makes them responsible for no more than the losses they caused. Whether it's due to abuse of the system, misunderstandings or wrong diagnoses, there are still a lot of bodily injury claims brought forward that ask for compensation for completely unrelated injuries. This is yet another reason why documentation is so important. The insurance company has a right to question whether or not injuries were pre-existing or if they happened after-the-fact. 15 P a g e

16 Resources DISCLAIMER: This is not an attorney nor is it legal advice. This document is for informational purposes only. No part of this document should be construed as having any legal basis or be regarded as legal advice or consultation. You should seek the advice of a licensed attorney before making any legal decisions. 16 P a g e