Auto Accidents: An Overview
As the car and truck population grows in America year by year, the chances of getting in an automobile accident have increased dramatically. Over 6.4 million auto accidents occur in the U.S. every year, and these add up to a staggering financial cost of over 230 billion dollars. 2.9 million injuries occur as a result of these accidents, and over 40,000 people are wrongfully killed. That equates to roughly one death every 13 minutes.
The majority of these accidents can be traced to driver negligence of some kind, including driver distraction or inattentiveness, aggressive driving behavior, driving while texting or talking on the cell phone, or driving under the influence of drugs or alcohol. In such cases, the driver is often held financially liable for the victim’s damages.
Some cases, however, can be the result of defective products caused by the car manufacturer. If you have been injured in an automobile accident and require compensation to pay for your post-accident costs, a dedicated attorney from our team can provide you with skilled legal representation to help you fight for what you’re rightfully owed by those at fault.
Types of Accidents
Automobile accidents, such as ATV accidents, bus accidents, car accidents and truck accidents, can result in devastating serious and sometimes catastrophic injuries for the innocent victims involved. These injuries can have consequences such as partial or full disability, permanent brain damage, massive body burns, or the inability to work. The costs inherent with such consequences can be steep, and that is why it is important to hire an experienced auto accident attorney from The Medler Law Firm if you have been involved in an automobile accident.
Car Accident Lawyer
You have just been injured in an auto accident caused by the negligence of someone else. This can be a very difficult and stressful situation for you. What steps should I take right after the accident? Should I talk to their insurance adjuster? Who will fix my car? How will I get compensated for my injuries? Should I hire a personal injury lawyer? How do I pick the best personal injury car accident lawyer for me? You probably have these questions and many more.
If you’ve been the victim of an car accident, you are likely dealing with an insurance claim and may be faced with certain difficulties in this regard. Particularly if you or someone you love was seriously injured, recovering fair compensation from the insurance company can be a complex matter. Insurance companies are in the business of making money, and as a result they may sometimes take part in underhanded or even outright illegal practices to avoid paying a high settlement.
They are more interested in collecting premiums than paying out large amounts of compensation to claimants. As a victim of a car accident, you should not have to suffer as a result of their greed. A skilled attorney from our firm can help by properly presenting your case and protecting your legal rights while helping you pursue an insurance claim. It may require a certain amount of pressure to get the insurance company to handle your claim in a swift and fair manner. An experienced member of our team is prepared to provide you with nothing less than exceptional representation to help you pursue the compensation you deserve.
Our team can thoroughly review your case and skillfully fight for you against the insurance company or in court to increase your chances of receiving the compensation you deserve. We have more than 50 years of combined experience in personal injury litigation and will provide you with aggressive and tireless legal help.
Common Causes of Car Accidents
Car accidents have a number of potential causes, and our lawyers at The Medler Law Firm have experience in handling all of these. This includes accidents caused by driver negligence such as speeding, texting while driving, talking on the phone or drunk driving, and can also include complex claims that involve defective or dangerous roadways or defective auto parts. No matter the particular circumstances of your case or the severity of injury you have sustained, we are prepared to offer you the level of powerful legal counsel you need to seek maximum compensation. There is no reason to wait to retain the dedicated and comprehensive representation you need to seek fair compensation for your injuries and losses. We are here to help. Follow the advice below.
12 Steps to Take Immediately Following an Accident
Print this page out and give it to your spouse and your kids who are of driving age, and keep this page in your glove compartment so you will have it when the time comes. After an Accident, take the following steps, in the order set forth below:
1. Get to Safety
Your car was just hit. It might still be in the middle of the road. The most important thing to do first is to get to safety. That may mean pulling your car over to the shoulder, or getting your car out of oncoming traffic. The last thing you want is to get hit by another car coming down the road. Once you pull your car over, be careful trying to get out of the car, and wait for traffic to clear before getting out of the car. Your car may also be totalled or immobilized from the accident. Get out of the car as soon as it is safe to do so. We had a client whose daughter’s car ran out of gas in the middle of a highway lane. She decided to stay in the car with her children to call her boyfriend for help. Unfortunately, a truck driver then came down the road and hit their car, killing everyone in the vehicle. Staying in your car in the middle of a highway lane is extremely dangerous. When it is safe, throw on your emergency flashers and then get immediately out of the car and get onto the grass of off the shoulder of the road. Safety first!
2. Call 911
If you are hurt enough to the point that you need an ambulance, you need to call 911 to make sure that you can get prompt medical help. It is also wise to summon the police because the police officer can come to the scene and document critical facts in a police report that you might need later. Also, if you are a minor, call mom or dad right after calling 911.
The next step depends on how badly injured you are. You may be so injured that you just need to concentrate on getting in the ambulance and getting off to the hospital. If that’s the case, see if you can get a friend or family member to take the steps below. If it is not possible, that is ok. However, if you are not completely incapacitated, follow the next steps below.
3. No Admissions!
One of the worst mistakes you can make is telling the other driver or the police officer that the accident was “all your fault.” Many people react differently in stressful situations, especially where you might be confronting a stranger. Emotions will be high. Many people like to diffuse stressful situations by deflecting blame onto themselves. “I am so sorry, I am a klutz when it comes to driving” or “I am so sorry, I didn’t see you” might seem like nice things to say at the time, but they will absolutely kill your personal injury case. Do not admit full or partial fault or blame to anyone, including the other driver and the police officer. The other driver might be angry. He or she might come up to you and say, “What are you, crazy? Didn’t you see me coming?” Now is not the time to start admitting fault to calm the other driver down. If the other driver is confrontational, just say nothing about who is at fault for the accident. Now keep in mind that the other driver might make an admission to you, like “I am so sorry, it was all my fault.” If you can, jot down on a piece of paper any admission made by the other driver. For example, if he says he or she was texting at the time of driving, or fiddling with the radio, or did not see you, or was distracted—all those things are important admissions to write down.
4. Get eyewitness information first
Many people know to get out a pad of paper and start exchanging insurance information with the other driver. That’s important, but don’t do that yet! The most important thing now is to get the identity of any eyewitnesses. Why? Because eyewitnesses have better things to do than sit around waiting to talk to you, and they are going to leave. Often times, in a case of a dispute as to the facts (for example, who had the green light), a single eyewitness may mean the difference between winning and losing your case. Juries believe eyewitnesses because they are completely impartial. So jot down the eyewitnesses’ names, phone numbers, addresses, e-mails—anything that you can use to contact them later. Don’t try to pressure them into sticking up for your version of the accident. Just get the contact information. If they start to drive off, try to jot down their license plate numbers. As long as there is a way to contact them, your personal injury attorney can contact the eyewitnesses at a later date.
5. Take photos
With the prevalence of smartphones, most people have a phone which takes pictures. Use your phone camera to take pictures. However, before going any further, let me warn you: be safe when taking pictures! Do not run out in traffic to take a photo. Take all photos from a safe distance. Take photos of your damage to your car, and the damage to the other car, from different angles. Take photos of the cars if they are still in the position they were in at the time of the accident. Take photos of debris and skid marks in the roadway (from a safe distance!). If you are bleeding or have bruises or cuts, have a friend or family member take a photo of your injuries at the accident site. The same will go later when you get to the hospital. Sometimes, injuries like cuts and bruises will fade and go away over time. Take photos of your injuries while they can be seen to document the injury. Take photos of any relevant street signs, like speed limit signs.
6. Exchange Information
Ask to see the other driver’s insurance card. Write down the other driver’s name, address, phone numbers, e-mail address, insurance policy number, insurance carrier, any other information on his/her insurance card (take a photo of it). If you can, and it is not too dangerous, try and write down the VIN number. It will probably be on the driver’s insurance card, but it is also pressed into a plastic plate on the driver’s dashboard, usually on the driver’s side. If the person who hit you looks young, find out the driver’s parents’ names, because they probably have the insurance. Another step most people miss is to find out who owns the other driver’s car. Often times, the driver is borrowing a car owned by someone else. In that case, there might be insurance for both the driver and the owner. So get the owner’s name, address, phone, e-mail, name of insurer, policy number, etc. If there were passengers in the other driver’s car, get their contact information.
7. “Are you hurt?”
The other driver or the police officer might ask you if you are hurt. Are you? If you are feeling any pain at all from the accident, answer “yes.” If you do not feel any pain at all, then say, “I don’t know, I will need to get medical care and find out” (or say nothing). Telling the other driver at the scene that you are not hurt is a disaster for your later personal injury claim. Remember that people’s bodies react differently to impact from an auto accident. Especially with soft tissue injuries, you might not feel pain until days or even weeks later. So it does not help you to tell anyone at the scene that you are not hurt. All that being said, you should ask the other driver if he/she is hurt, and whether any of the other driver’s passengers are hurt, and write down what they say.
8. Make a Sketch of the Scene
OK, so you are not an artist. We get that. Still, it is important to write down a little sketch of what happened. Draw in the streets and label them. Label which way is north. Your phone has a compass if you do not know. Draw in how many lanes there are going each way and which lane you were in. If there are turn lanes or suicide lanes (a single lane marked by yellow lines on either side into which people going either direction can turn to prepare to make a turn) draw those on your map. Show where your car was and where the other driver’s car was, and mark an X at the point of impact.
9. Talk to the police officer at the scene, but no admissions
Talk to the police officer at the scene, but be careful not to volunteer any harmful admissions. Let’s say you were texting right before the accident. Do not volunteer that to the officer. If he asks you point blank if you were texting at the time of the accident, then tell him yes. But there is no need to volunteer any harmful facts which could hurt your case later. Do not exaggerate when talking to the officer. Do not get emotional. Just state the facts as simply as you can. Try to use directions like north, south, east, west. Normally, the police officer will separate you and the other driver when taking statements. But if he doesn’t do that, and you are standing close enough to hear what the other driver says to the officer, write it down and remember it.
If you are given a ticket by the police officer, do not try to argue with the officer. The fact that you got a ticket is irrelevant in your later personal injury case. However, if you are later convicted of the charge in the ticket could hurt your case. So whatever you do, do not just send in money and pay the ticket. Give the ticket to your personal injury lawyer and let him/her handle it. Often, that ticket can be plea bargained down to a non-moving violation like illegal parking or excessive vehicular noise, and in that event, the fact that you were ticketed would never come into evidence at trial.
10. Contact your own insurance company and set up a claim but do not talk to the adjuster from the other driver’s insurance company
Call your own insurance company and set up a claim. Write down the claim number and the number and contact information of your insurance company’s adjuster. It is normally OK to talk to the adjuster for your own insurance company (I will explain the exceptions below). They may want to take a statement about what happened. Unless it is one of the exceptions listed below, it is OK to give a statement to YOUR OWN insurance adjuster. However, UNDER NO CIRCUMSTANCES talk to the adjuster for the other driver. They will call you and tell you that it will only take a minute and not to worry. Do not believe them! They are not your friend! They are doing everything they can to NOT pay you, or pay you the lowest amount they can. What you say to them, without an attorney present, could dramatically affect your personal injury case.
When should you NOT call your own insurance adjuster? If you were hit by a hit-and-run driver or a driver with no insurance, call a personal injury lawyer first and ask their advice on whether you should talk to your own adjuster. The reason is that in that case, you might be filing an Uninsured Motorist claim against your own insurer (more on this later), so in that case, you and your own insurance would be opponents, not friends. You do not want to speak to an adjuster who is not on your side!
11. Get medical attention, if you have not done so already
If your accident was not so serious that you needed an ambulance right away, now is the time to either go to the emergency room (preferred), or to go to your personal doctor and get appropriate medical attention.
12. Contact a personal injury auto accident attorney immediately
I know you want to put this step off. You have to get your car fixed, arrange to get time off work, deal with handling the kids while you are injured, rearrange your schedule, get the medical bills paid, see doctors, etc. It is a lot to handle. After all, there is plenty of time to get a lawyer and file a lawsuit, right? Not a smart idea. You need to get a personal injury attorney IMMEDIATELY. Why? Because the insurance company for the driver is already running out to interview witnesses and trying to pressure the witnesses into supporting an account of the accident different than yours. The adjuster is already photographing your damaged car. Who do you have working for you? Witnesses disappear, evidence is lost—now is not the time to sit on your hands. Talking to an attorney and signing a contract takes about thirty minutes. And the attorney can come to you, even to your hospital room if necessary. Don’t delay! Call an experienced California car accident attorney today!
5 Steps to Get Your Car Fixed After an Auto Accident
OK, you are back at the house, or maybe you are recuperating in the hospital. Your car is either smashed up in the driveway or it has been towed to a lot somewhere. How do you get it fixed? Follow these easy steps.
1. Locate your car and tow it to the repair shop if there is major damage
Sometimes, your car was towed from the scene. You may not know where it is. Usually, the tow truck driver will give you his card. If that did not occur, the police officer will usually give you his contact information. The officer will usually know where the car was towed. If it is in the driveway, great, but do not try to drive the car to the repair shop if it is badly damaged. You do not know whether safety of the car has been compromised from the accident. It is safer to have it towed to the repair lot, unless the damage is more minor.
2. Don’t wait for the negligent driver to fix your car; take it to your own repair shop.
Don’t let your damaged car sit there beat up in the driveway until the other driver’s insurance fixes your car, or you can be waiting a long time to get your car fixed. Take it to your own repair shop right away. Take it to a shop which specializes in auto body repair. However, before you do that, call your own insurance agent and ask him/her whether you have “Collision Insurance” on your car. Chances are you do. If so, that means that your insurance company will be paying for your car, minus the deductible, which you will have to pay. Because your insurance carrier is paying the large majority of the repair bill, they will want you to take it to one of their preferred repair shops. Take it to whatever shop they recommend. If they do not have a preference, then take it to the repair shop you prefer. Give the repair shop the claim number from your own insurance company which you got earlier. The repair shop will let you know when the car is ready.
3. Check to see if you get a rental car
While your car is in the shop, you will need a car to get around. Many people have rental car coverage on their auto policy. Check to see if you have this coverage and, if so, take advantage of it and get yourself a rental car. Watch out, though. Sometimes, your insurance will only authorize $X per day for rental, or X number of days. If the rental company charges you more, or if your car takes longer than planned to repaid, you will have to pay the difference.
4. When your car is repaired, pay your own repair shop the deductible, then get reimbursed for the deductible later
You will need to pay the deductible to the repair shop. The deductible is often hefty—it might be $500 or $1,000. You will need to pay that. But do not worry, you are going to get it back! What happens next is that your auto insurer will call the other driver’s auto insurer and make a claim. If the other driver’s insurer agrees that the accident was the fault of the other driver, then the other driver’s insurance will pay the total amount of the repairs to your insurer. Then your insurer will cut you back a check for the deductible. That may take a while.
You may ask, “I am a little broke now and I do not want to pay the deductible. Why don’t I just wait until the other guy’s insurance company pays for my repairs?” You can do that, of course. However, insurance companies are notoriously slow in paying third-party liability claims. So they may jack you around for six months, while you are driving around with duct tape over your window that was smashed in. If you cannot afford the deductible, then this is the way to go. However, the preferable way is to get the car fixed with your own insurance company, which will be fast (why? Because you are their customer and they want to keep it that way!), pay the deductible, and then get reimbursed back for the deductible down the road. That gets you in a shiny repaired car right away!
5. If your car is totalled, you still owe the finance company.
Let’s say you bought a car new for $25,000. You put $2,000 down on your car and signed a promissory note to the finance company for the other $23,000 for the car. The car is now two years old. You have made $2,000 in payments to the finance company so far, and now you owe the finance company $21,000. However, the “Blue Book” value of your car has dropped to $18,000. Your car gets totalled in the accident. The insurance company gives you $18,000 for your totalled car. With the $18,000 you get from the insurance company, you are still $3,000 short. Do you still owe the finance company for the full amount? Unfortunately, yes. An accident does not affect your promissory note. You still owe the finance company whatever it is you owe them in the loan documents. The accident—and how little you get from the insurance company—does not affect that. Sorry.
Who is Going to Pay My Medical Bills?
You have been injured in an accident. Who pays the medical bills? The answer is: “it depends.” At the time of the accident, were you working for an employer (for example, you got in an accident while driving the company truck)? If the accident while you were on the clock working for the employer, then you have a worker’s compensation case, and your employer will pay for your medical care. So when you get to the hospital, let them know the name of the employer and explain to them that it was a work-related case. You will typically get a caseworker from your employer, or from their worker’s comp insurance carrier, who will work with you to get those bills paid. One problem, though: in a work-related accident, the employer, and not you, gets to direct your medical treatment (since they are paying for it). So if you like Doctor X and the employer likes Doctor Y, you have to go to Doctor Y if you want the employer to pay for it. But what if you really like Doctor X and want to go to him? You have a few options. Just go ahead and go to Doctor CX and pay for it out of your own pocket. Alternatively, you can try to submit the bill for Doctor X to your own health insurance company, but health insurance companies often have exclusions for work-related injuries. It’s worth a try, but do not be surprised if the request is rejected.
If the accident was not work-related, then submit the medical bills to your own health insurance. That could mean private health insurance; health insurance through work; Medicaid (generally, health insurance for poor people); or Medicare (generally, health insurance for the elderly). If you have no health insurance at all, then you can either: (1) try to apply for Medicaid if you meet the low-income requirements; or (2) explain to the hospital or doctor that you have no insurance but that your accident was caused by the negligence of a third party. The health care provider, in that scenario, might agree to treat you by asserting a “lien” against any settlement you get for your injury. Try to avoid the scenario where you have the medical provider sending you out collection letters for unpaid healthcare bills, as this could damage your credit.
Here’s another potential source of money for paying medical bills: “Medpay.” Many auto insurance policies provide coverage for “Medical Payments.” Your own insurance policy may provide this coverage. This amount must be paid regardless of who is at fault for an accident, and even if some other source (employer, health insurance, Medicaid, Medicare, etc.) has paid the medical bills. Just submit all your medical bills to your auto insurer if you have this coverage, and they will pay you the benefits specified in your policy. DO NOT let any hospital or medical provider try to steal your Medpay money from you. We have filed class action lawsuit to prevent those type of abuses. The health care provider is NOT entitled to your Medpay in your auto policy: you are!
10 Reasons Not to Handle Your Own Personal Injury Case
OK, you have your car fixed and your medical bills are being paid. It is time to retain a personal injury attorney to handle my personal injury case. But wait a minute. I know how to negotiate. Why don’t I just call up the other driver’s insurance agent and try to negotiate my own personal injury settlement? How hard can it be? That way, I can avoid paying a lawyer and save myself some money. Right? Wrong. Here are the top ten reasons why you should NOT try to handle your own personal injury case.
1. You Will Probably Get More Money
The Insurance Research Council is an insurance trade group. In 1999, they published a report entitled “Auto Injuries: Claiming Behavior and its Impact on Insurance Costs.” In that study, the researchers compared the amount of recovery in personal injury cases between those victims who represented themselves and those who hired attorneys. The result? Those with attorneys recovered 3.5 times more than those without attorneys.
Well, don’t I have to pay an attorney out of that? Yes, you do. But even if you take out the attorney’s fee, this research suggests that in most cases you will still get more even after paying the attorney’s fee. Let’s take a typical example. Let’s say you are able to obtain a $10,000 recovery by trying to settle the case on your own. Now you decide to use a lawyer, and the lawyer is able to get a settlement of $35,000 for you. Even if you pay the attorney a 40% fee of $14,000, that still clears you $21,000—over twice the amount you recovered by handling it yourself.
2. Personal Injury Attorneys are Trained Professionals
You have appendicitis. Would you ever think of whipping out a scalpel and trying to perform surgery on yourself? Of course not. That’s because doctors, like lawyers, are trained professionals, who have undergone years of training in order to do their jobs. Some attorneys, like our firm, have been handling personal injury cases for almost thirty years. Don’t try to play “Matlock” by being your own attorney. It will not end well.
3. You can Make Dramatic Mistakes
The biggest reason for not handling your own claim is that you can make dramatic mistakes. You might miss important benefits that are available, like the “Medpay,” “UM,” or “UIM” coverage in your own auto policies. You might miss the liability of a third party which you have never thought about. You might make a bad admission to the other party’s insurance adjuster. You might miss an important case or statute because you have no legal training. Please do not try to handle this yourself. Get a professional to help.
4. A big mistake is thinking you have no case when you really do
Many people think, for a variety of reasons, that they cannot sue. For example, your car is hit by a hit-and-run driver. Many people would chalk this up and think that there is no one to sue in that scenario. However, your personal injury lawyer would explain to you that you can recover from your own policy’s uninsured motorist coverage. There are dozens of examples like this. Do not miss out on a potential claim because you have no training in legal matters.
5. Fear, not benevolence, motivates insurance agents to pay more
The adjuster for the other driver’s insurance company is not your friend. He is employed to do everything he can to pay you nothing, or close to nothing, on your claim. What incentivizes that adjuster to pay more in settlement? The fear that a personal injury lawyer will take the case to a jury, get a huge verdict, and then he ends up paying way more than he could have paid if he had only settled. Think about that adjuster having to go sheepishly tell his boss the day after the verdict that the company has to pay $100,000 in a jury verdict, and $50,000 in attorney’s fees, when he could have easily settled the case for $25,000. That adjuster could easily be fired. That is what he is thinking about when an experienced personal injury lawyer is on your side. Now compare that to you handling your own case. Do you think the adjuster is scared now? No, he is not, so he will continue giving you low-ball offers because he knows that there is no worry that he is going to get hit with a huge verdict.
6. Insurance policies are terribly difficult to understand and decipher
Often the case depends upon the construction of an insurance policy. The language in insurance policies is arcane and difficult to understand. Even experienced personal injury lawyers have difficulty understanding certain dense insurance policy language. Do you know what is meant by “insurance “stacking” and would you know how to “stack” policies? Do you understand what case law exists to support the meaning of a clause in an insurance policy? Do you know how to interpret exclusions in an insurance policy? You need an experienced personal injury lawyer to get you through this forest.
7. You might miss a statute of limitations
If you do not file your case within the statute of limitations, you are forever barred. Do you know what all the statutes of limitation are? Maybe you do. It is not that difficult to Google “statute of limitations—negligence.” But do you know all the exceptions to the statute of limitations? We have a client who was grievously injured at age 14. His mom never wanted to sue. He was a friend of my son’s. One day, when this young man was 22, he was at our dinner table, and told us of his accident eight years ago. He did not believe he could sue because more than five years had elapsed. However, there was a special statute in this young man’s state freezing the statute of limitations during the period he was a minor. So he had actually one year left to file. He agreed to file suit and we got him an excellent recovery—one that he would never have known to file if he was on his own.
8. You do not have a good idea of what your case is worth
Understanding what a case is “worth” is more art than science. It is something that is gleaned after years of experience. If you are not an attorney, you will simply have no idea what your case is worth and may end up dramatically selling yourself short.
9. The value of your case may turn on rules of evidence or issues of law
Let’s say that the Defendant who hit your car was on his way to a drug deal at the time of the accident. Will the fact that he was on his way to a drug deal come into evidence if the case goes to trial? You can see that the answer makes a huge difference, because juries do not like drug dealers and will generally not believe what they say. Knowing the answer to that question requires legal research—something that you are simply unequipped to do. In nearly every case, there are issues of evidence and law which require the expertise of a lawyer. Will you be able to go to the law library and find these cases? Probably not.
10. Handling a Case Through Discovery and Trial is Almost Impossible Without a Lawyer
If the adjuster gives you a lowball offer, what is your remedy? If you have a lawyer, you can go to court and try to get more from a jury. And once the case is in court, the complexity goes off the charts. Do you know the rules of civil procedure, the rules of discovery, the proper techniques to depose witnesses, how to draft interrogatories, which experts to hire? If the case goes to trial, will you know the rules of evidence? A non-lawyer will simply have no idea how to do these things.
Still not convinced? Maybe this is one of those very rare, simple cases that you can handle yourself. But maybe it’s not. Why not get a free consultation today with a personal injury lawyer. That costs you nothing. Ask whatever questions you want and then decide. You might decide that a personal injury lawyer is right for you.
The Top 10 Mistakes People Make in Thinking They Do Not Have a Case When They Really Do
Maybe lawsuits make you skittish. The idea of you going into court makes your stomach turn. Maybe you think that for whatever reason you do not have a case. Lots of people have these feelings. And many people are surprised to learn that they really have a good case, and the prospect of filing a claim is not as difficult as it might at first blush appear. Here are the Top Ten Mistakes that people make in thinking that they do not have a case, when they really do:
1. The Officer said it was my fault, so I cannot sue.
Not true. Believe it or not, in most states, the opinion of an officer as to who is at fault for an accident is INADMISSIBLE. That’s right, he is not even allowed to give that opinion in court. So whether the officer said it was your fault or not should not impact your decision in whether to bring a case. What if the officer gave you a ticket? Again, the fact that he gave you a ticket is inadmissible. However, if you get a ticket, give that to your personal injury lawyer right away. He may often be able to reach a plea agreement with the prosecutor to an alternative plea for a non-moving violation like excessive vehicular noise or illegal parking. That kind of plea would not be admissible in your case. However, if you are found guilty of the ticket (for example, assume you just mail in the money and agree you are guilty), that CAN come in and hurt your case. So don’t do that!
2. I didn’t go to the Emergency Room immediately, so I cannot sue.
Not true. People’s bodies react differently to trauma. You may not experience bad pain or symptoms for a day or week or even a month after your accident. The fact that you did not go to the emergency room does not prevent you from filing a case. Here is how it is relevant, however. In the case, we have to prove “causation”—namely, that the defendant’s negligent driving caused your accident. If you do not go to the doctor for a month, you give your opponent the opening to claim that your injury was from something other than the accident, and that you were really not hurt by the accident. So it is important to go to the doctor right away. But it does not prevent you from filing a lawsuit.
3. I never got the other driver’s license plate, so I cannot sue anybody
Not true. If you have your own auto insurance, in many states, like California and Missouri, you are required to obtain a minimum amount of “Uninsured Motorist” coverage. In California, it is $15,000; in Missouri it is $25,000. You may have even more than the minimum amount. That coverage handles the hit-and-run driver scenario. So in that case, you would make a claim against your OWN auto insurance for UM coverage, and you would have to prove that the other driver was negligent and caused your injuries.
4. The guy that hit me had no insurance, and he looks broke, so there is no point in suing
Not true. Remember that “Uninsured Motorist” coverage we just mentioned above? That also applies in the case of a known driver who hits you who does not have any auto insurance. So you can go after your own insurance for UM benefits. That is an excellent reason to always have auto insurance.
5. I am not a citizen so I cannot sue, and if I did sue, I would be deported
Not true. You are not required to be a citizen to bring a personal injury claim. Usually, your citizenship status would be excluded from consideration by a jury. Will you be deported? Keep in mind that because you are not legally documented to be in the country, you could always be deported at any time. However, bringing a personal injury claim does not make it more likely you would be deported. We just handled a wrongful death case for a family where the mom was undocumented, and we obtained a six-figure settlement for her family.
6. I do not have a “major” injury, just some whiplash, so I cannot sue.
Not true. Your case is still viable. Now, your damages are not going to be anywhere as high, so your settlement will be lower, but the fact that you only have a minor injury does not prevent you from suing.
7. This was a one-car accident, and no one else is involved, so I cannot sue.
Not true. Perhaps you were in a one-car accident, but the road was dangerous. We have sued the state agency in charge of the safety of the roads several times successfully where the roadway was dangerous. Perhaps someone put something out on the road. I was involved in a case where a contractor pumped water from a culvert onto a road in January. This created a skating rink on the road and multiple cars slipped off the road. Maybe you were injured by a defective product, like a component of the car. I have handled dozens of cases where the allegation was that a utility company was negligent in having a utility pole too close to the road. There are lots of scenarios in which liability could be established. A classic case involving a lawsuit being viable in an unlikely scenario was one handled by another law firm several years ago, in which a huge tree by the side of a road fell on a person in their car and severely injured them. The attorney was able to learn that the landowner had hired a plumbing company which had installed an underground sprinkler system near the base of the tree, and had negligently cut all the tree’s roots, causing it to become unstable and fall. I bet you would have never thought of that without an attorney!
8. I was partly at fault, so I cannot sue.
Not true. In many states, for decades, even if you were 1% at fault for your own accident, you could not sue the defendant who was 99% at fault. That rule was called “contributory fault.” Only three states still have that rule. Most states adopt a version of “comparative fault,” which allows the jury to compare the fault of the plaintiff against the defendant. In some states, if the Plaintiff is 50%, or sometimes 51% at fault, the Plaintiff cannot sue. In California, however, the state has a “pure comparative” rule, meaning that even a Plaintiff who is 99% at fault can sue a Defendant who is 1% at fault. Now remember that in such a case, your recovery is proportionately reduced. So in that example, if you were 99% at fault, and you got a verdict of $100,000, you would only recover $1,000. The same thing is true for other percentages. If you were 30% at fault and the Defendant was 70% at fault, your award would be reduced by 30%.
9. It is too expensive to hire an attorney
Not true. Nearly every personal injury lawyer does not charge you an hourly rate. Rather, they take your case on a “contingency fee” basis. That means that they will take a percentage (typically, between 33.333% and 40%) of your recovery when the case settles or results in a verdict. So there is no ongoing out-of-pocket to you. Also, as you go along, there will be expenses. For example, there will be a filing fee, a fee for the sheriff to serve the legal papers on the defendant, court reporter’s fees for depositions, fees for obtaining medical records, and so on. Your attorney will front all of these expenses for you. At the end of the case, then you repay the attorney from your share of the settlement for the case expenses which were expended on your behalf. However, for most personal injury attorneys, if you lose your case, then you owe your attorney NOTHING. Think about that. Are you aware of any bank that would lend you money to pay for your case and then tell you “Don’t worry about paying me back” if you lost your case? No, there aren’t anyway. Lawyers are taking risks when they take on your case, because their money is at risk too. We do all this so that our clients do not have to pay anything as the case proceeds, and will never end up “negative” at the end of the case. So anyone has enough money to hire a personal injury attorney.
10. I do not want to go to Court
Never fear. Over 90% of cases are resolved through settlement. Just tell your lawyer if you have feelings like that. Keep in mind that you are the boss when it comes to accepting a number for settlement or not. Even if your attorney tells you, “Don’t take this number. I know we can get more if we go to trial,” you can say, “No, I want to settle,” and the attorney does what you want. That’s how it works. So you are the ultimate master of whether or not you actually go to Court.
So you see? It’s not as hard as you thought it was. Call an experienced personal injury lawyer today.
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Car Accident Frequently Asked Questions:
Medicare paid my medical bills. Do I have to reimburse them out of my personal injury settlement?
Yes, you do. This is the worst one. Medicare is a nightmare. First, lawyers are required to notify Medicare of your settlement. Lawyers are required, upon penalty, to account for Medicare in the personal injury settlement. There are two components here. The first is the amount Medicare paid in the past; and the second is the amounts Medicare will continue to pay for you in the future. For the payments made in the past (and again, this is only those medical bills attributable to the defendant’s negligence for which you are seeking recovery in the personal injury case), you will need to ask Medicare for a “conditional payment letter.” This is a letter saying, “OK, Medicare, how much do we owe you?” This is an agonizingly long and frustrating process and can take many months. Frequently, Medicare will wait months and then return a letter, and the medical payments referenced have nothing to do with the lawsuit. The back-and-forth is truly Dickensian, and can cause a personal injury settlement to languish for a long time.
Once the Medicare amount is finally agreed on, that must be paid out of your personal injury settlement. Then there is the issue of what Medicare will pay for these same injuries going forward. Recent pronouncements from Medicare suggest that personal injury lawyers have to take this into account. This means that you will be required to pay a few thousand dollars to a law firm specializing in giving opinions as to future Medicare reimbursement. Whatever amount that law firm says you have to set aside for future Medicare payments, that is the amount you have to carve out. You can see that Medicare issues are not fun.
Medicaid paid my medical bills. Do I have to pay them back out of my personal injury settlement?
Yes, but there are ways around it. By statute, the lawyer is required to notify Medicaid of any personal injury settlement where Medicaid paid part of the relevant medical bills. So Medicaid will want to be paid back, and they are statutorily entitled to be paid back 100%. However, there are a few ways around this.
The statute allowing reduction or elimination of the lien
There is a Missouri statute which allows a party to move to reduce or eliminate entirely the Medicaid lien based upon the facts of the case. So a typical example would be where the person is catastrophically injured but for whatever reason they did not get the money in settlement that they need to care for their needs. For example, the defendant may be a governmental entity subject to caps on recovery. Or there may have been insufficient insurance. Or maybe the case against the defendant just was not very strong. In that example, if the court allows a huge Medicaid recovery, the claimant may get nothing. If your lawyer files such a motion, the hope is that the State fails to answer the complaint, and then the entire lien gets reduced to nothing. If they answer, they will usually appoint someone from the AG’s office to represent the state. Typically, I have seen Medicaid agree to two alternative scenarios: (1) the amount of the lien is reduced proportionately by the attorney’s percentage (so if your attorney charged 40%, the lien will be reduced 40%); or (2) the more common result, the person agrees to pay 100% of the amount, but defers payment until the person’s death.
The Medicaid Special Needs Trust
If scenario #2 is taken, the person should put the settlement proceeds in a special trust called a Medicaid Special Needs Trust. This type of trust is authorized specifically by federal law. It must be very specific, so you will need a trust lawyer to draft this for you, and there will be an additional charge. Basically, you appoint someone else like a relative to manage the funds, which can be used for your benefit. Your trustee will provide you payments during your lifetime. And if there is nothing left in the trust by the time you die, then Medicaid gets nothing. This Trust helps you avoid the harshness of the Medicaid lien, and allows you to continue to get Medicaid coverage for your ongoing medical issues.
Do I have to pay back the hospitals and doctors out of my personal injury settlement?
If you have health insurance
The answer is maybe. In the scenario where you have health insurance, the hospital or doctor enters into an agreement with that health insurance company that they will accept as full payment only a percentage of the bill. Let’s assume you have Anthem. Your bill from the hospital is $10,000 but the hospital has contracted with Anthem that for people with your type of plan, they will accept $4,000 as payment. The hospital, pursuant to its contract with Anthem, is then required by contract to write off the $6,000. So they cannot come back later and demand that you pay that $6,000 out of your settlement, or they will be breaching their contract with Anthem that they would accept $4,000 as full payment.
If you don’t have health insurance
But let’s assume that you have no health insurance and you are not on Medicaid or Medicare. In that case, the hospital still has a $10,000 bill. Under a Missouri statute, they are allowed to file a lien against your personal injury settlement. Note that they must do this to protect their rights. If they fail to file a lien, it is their problem. But if your attorney has a lien in his file from the hospital, he or she must pay that lien out of your settlement.
Will the hospital take my whole settlement?
But what if the hospital lien is $10,000, my personal injury settlement was $15,000, and my lawyer’s fee is 40% of the recovery? In that event, after the lawyer takes $6,000, that leaves me with $9,000. Does the hospital take everything? No. The statute provides that you first subtract the lawyers’ fees and expenses, and then after you net out your recovery, the hospital or doctor lienor can only take 50% of your net. So in that scenario, you netted out $9,000, and the hospital can only take $4,500. If there were was a hospital and two doctors, each with claims of $10,000, they would all three have to split that $4,500.
Reduction through negotiation
Also keep in mind that hospitals and doctors will frequently reduce their liens somewhat through negotiation. Why would they do that? Because you have the ultimate authority on whether to settle. You can say, no, we are not settling, and the case goes to trial. You lose and get nothing, and the hospital gets nothing. Most of the time, they would rather take a bird in the hand versus two in the bush.
What is the “Medical Payments” coverage on my auto policy?
Some people buy coverage (typically $5,000) for Medical Payments. If you are involved in an accident, and you have this coverage (check the Declarations Page or ask your agent), then you are entitled to that Medical Payments coverage regardless of who was at fault for the accident. You will just have to submit the appropriate medical bills and they will be reimbursed.
Have them pay you, not the hospital or the doctors
Generally speaking, you will always prefer that this Medical Payments coverage be paid directly to you. Sometimes, auto insurance companies will try to pay this directly to the doctor. If you have health insurance which covers all your bills, and your auto insurer decides to pay the doctors/hospitals instead of you, this can be frustrating because you may have already had coverage for that through your health insurance. In essence, then, you paid premiums for Medical Payments coverage for nothing. So you always want to fight to have the health insurance pay the bills, and then have your auto insurer pay you the Medical Payments coverage. That gets you $5,000 in your pocket. Most lawyers will not take a contingency fee out of your Medical Payments coverage because you paid for it and it is no-fault. However, in the scenario where the auto insurer is not paying you what you deserve, you may need a lawyer help you get what you deserve, and they may ask for a percentage of that recovery.
When you don’t have health insurance; chiropractors
Medical Payments are particularly handy when you do not have health insurance to pay the bills. A good example is chiropractic care. Many health insurance plans will not pay for a chiropractor. So your health insurance pays for the hospital and the medical doctors, and then you use your Medical Payments coverage for the chiropractor’s bills.
Is my personal injury settlement taxable?
No, generally not. Conceptually, you suffered a loss when you got hurt, and any compensation for personal injury only gets you back to the place where you started, so it is not considered income. If a large part of your recovery is for lost wages, however, that is taxable. This is normally handled by agreeing that the entire settlement is for personal injury only. Most defendants will agree to this. In a few employment discrimination cases that I have handled, where lost wages were the major element of loss, I have had defendants specifically ask that we carve out a small amount of the settlement and say that the small part was for lost wages (which is taxable) and the remainder was for personal injury (which is not taxable). In the typical auto case, however, the entire personal injury settlement will be non-taxable.
If my health insurance paid for my medical bills in my accident, and then I get a personal injury settlement, do I have to pay back my health insurance?
The answer is maybe, and really depends on which state you are in and what type of health insurance you have. How is that for a non-answer? 🙂 Well, let’s dig into the details.
Subrogation Rights Under State Law
If you are involved in an accident, your own auto insurance company will pay for your repairs if you have collision coverage. Let’s say they have spent $10,000 in repairs for your car. The auto insurance company is allowed to “step into your shoes” and sue the negligent driver in order to recoup the insurance money they had to pay out. This type of lawsuit is called “subrogation,” and is allowed by law in most states for property damage. But what about a health insurance company paying your medical bills? Are they allowed to step into your shoes and sue the negligent driver to recoup the money they paid out? In some states, like Missouri, the state law says NO. A health insurer is not allowed to subrogate in Missouri for a personal injury case, UNLESS the health care policy is one you get through your work (called an “ERISA” plan, and in that case, whatever subrogation rules are listed in your health care plan govern—most ERISA plans allow for subrogation). In some states, however, like California, the answer is YES.
Don’t make the health insurance company’s job easy for them.
Sometimes, a health insurance company through work will send the lawyer a lien letter advising that they are protecting their subrogation rights under the Plan, and that they are directing that all or part of the amounts be paid back. In that case, we pay the health insurance company back out of your settlement. But other times, there is radio silence. It often happens that your personal injury case is just not on the radar of the health insurance company. If they have not sent a lien letter or a letter asserting their rights, and they forget to ask you for the money to be paid back, for goodness sake, do not volunteer it to them. If you get a personal injury settlement and they forget to ask you for the money back, that is their problem. If you fail to pay back the health insurer under the Plan, there are probably remedies under the Plan like cutting off your medical benefits, so there is some risk in not notifying them. But I have not seen that one time in 25 years.
What is Underinsured Motorist Coverage?
Underinsured Motorist Coverage, or “UIM,” covers the scenario where a negligent driver has hit you with their car, and they have a little insurance, but the insurance they have is not enough to cover your injuries. Let’s say that a negligent driver hit your car and they have $25,000 in liability coverage. You have medical bills over $100,000. What do you do? You file a claim against the driver for the $25,000 and then for the remainder you file a claim against your own auto insurer for UIM coverage.
One important distinction between Uninsured Motorist Coverage (UM) (which covers the no-insurance or hit-and-run driver) and Underinsurance Motorist Coverage is that in some states, like Missouri, a minimum amount of UM coverage is required by law, while there is no such requirement to obtain UIM. So in Missouri, while you will definitely have UM protection on your own auto insurance policy, there is a possibility you might not have UIM. Check your Declarations Page of your policy and ask your agent if you have UIM and, if so, how much coverage you have. In other states, however, like California, UM and UIM are linked, and you are normally required to obtain both types of coverages. So in California, you will probably have UIM in addition to UM.
In states like Missouri where UIM is not required, many people forget to get UIM coverage, and the result can be disastrous if you are catastrophically injured by a negligent driver with minimal insurance. Make sure you have sufficient UIM coverage on your own auto insurance policy.
What is Uninsured Motorist Coverage?
Uninsured motorist coverage covers two scenarios:
- You know who hit you and they have no insurance.You have just had an accident. The gentleman pulls over and on the shoulder of the road he sheepishly confesses that he has no insurance. Now what do you do? The Uninsured Motorist (“UM”) coverage on your auto policy covers this scenario. You file a claim against your own auto insurer under the UM provisions. You will have to prove that the person who had no insurance was negligent and that their negligence caused your injury.
- You don’t know who hit you (the hit-and-run driver or “phantom” driver)In this scenario, the guy who hit you took off. You never got his license plate number. Never fear. If an unidentified person hit you through negligence, you can file a claim against your own auto insurer for UM.
What is My Personal Injury Case Worth?
10 Factors Used to Determine the Worth of Your Case
1. Accounting for Risk in Going to Trial
The first thing we have to do is distinguish between the “worth” of a case in terms of a jury verdict and the “worth” of a case in terms of settlement. They are two different things. When we talk about what a personal injury case is “worth,” we are asking what a jury would likely award as a jury verdict if the case were tried in court.
However, as we all know, a jury verdict is never certain. The jury may return a Defendant’s verdict and award nothing. The jury may decide to give you an award but not award as much compensation as you thought you would get. The jury may decide to assess a certain amount of the fault for the accident to you, which reduces your award. Even if you win, the Defendant may appeal and you may have to try the case all over again.
So the bottom line is that in going to trial there is risk. In determining what amount to settle for, one has to include that risk factor. So, for example, if you think the most likely result is that a jury will award $100,000, but you are only 70% sure you will get that verdict, then a reasonable settlement value might be $70,000.
2. Proving the Existence of a Duty
Under the law, you can only sue someone if they owed you a duty of care. Think of the example of a trespassing thief who is injured in a dangerous hole in your front yard. You do not owe a duty of car to a thief or a trespasser. So that is an example where the lack of a duty will doom your case. In most motor vehicle cases, however, this is never an issue, because everyone owes a duty of care to others on the roadway. But in some cases, your lawyer will have to evaluate the likelihood of proving successfully that a duty of care is even owed, and in those cases, the worth of the case will be less.
3. Proving Negligence
In a personal injury case, the first thing the lawyer needs to do is to prove that the Defendant was negligent. Without negligence, there is no case. For most cases, “negligent” means the failure to use the ordinary care that a reasonably prudent person would use under the same or similar circumstances. In the context of driving, motorists are required to use the “highest degree of care.” So if the issue is whether someone was negligent in driving, “negligent” means the failure to use the highest degree of care that a reasonably prudent person would use under the same or similar circumstances.
Let’s take the typical case where there is an intersectional collision and each party claims they had the green light.
Proving negligence is not clear-cut, because the jury may believe the Defendant that he or she had the green light, and that you were running a red light. In a case like that, you have to discount the value of your case somewhat because you might end up not being able to prove negligence. If both you and the other driver are equally credible witnesses, you might only have a 50-50 shot at best of convincing the jury that the other party was negligent. But let’s assume now that there is one eyewitness, and that eyewitness supports you.
Well, in that case, you can see that your likelihood of successfully proving negligence just went up substantially. So a personal injury lawyer has to look at all the facts out there and come to his or her best estimation of what the likelihood is of proving negligence.
4. Comparative Fault
Decades ago, the rule in just about every state was that if you were even 1% responsible for your own accident, your “contributory negligence” would bar you from any recovery at all. Fortunately, nearly every state has eliminated this rule. Some states provide that if you are 50% responsible or 51% responsible for your own accident, you cannot recover. Fortunately, both California and Missouri are “pure comparative fault” states. That means that even if you are 99% responsible for your own accident, if the Defendant was 1% responsible, you can still recover.
In comparative fault states, your own negligence will reduce your recovery commensurately. So if your damages are $100,000, but you were 30% responsible, the Defendant who was 70% responsible only pays $70,000.
You can see that if you had a significant role in causing your own accident, through your own negligence, that will greatly reduce the value of your case. So your personal attorney has to give his or her best estimate of what your comparative fault will likely be in the facts of your case, and then reduce the value of your case accordingly.
5. Proving Causation
You not only have to prove negligence, but you also have to prove that the negligence was the “proximate cause” (in other words, a close cause, not a remote cause) of the accident. The good news is that in many states, if the Defendant’s negligence combined with other events (including your own negligence) to cause this accident, that’s enough. The Defendant’s negligence only has to “contribute to cause” the accident. In California, the rule is that the Defendant’s negligence must be a “substantial factor” in causing the accident.
Sometimes, however, proving causation is not clear-cut. Take the example of someone with a pre-existing back injury. Now the car accident occurs and the person has a herniated disk in their spine. Did the disk come from the previous back condition or did it come from the car accident? Your doctor will have to give an opinion on that. In a case like that, you have to discount the value of your case because you may not be able to prove in a clear-cut fashion that the herniated disk was caused by the car accident.
Another example is medical malpractice. The doctor may have committed malpractice, but let’s say the experts say that your loved one was going to die anyway, irrespective of the malpractice. That is a case where the value is cut down because causation will be difficult to prove.
6. Proving the Existence of Damages
In a case with very minor injuries, it is possible that a jury might think that you were not injured at all. In those cases, one has to discount the value of the case because of the uncertainty in being able to prove there are any damages at all.
7. Proving the Amount and Extent of Damages
So, once all the elements are proved–existence of a duty, negligence, proximate cause, and the existence of damages, the personal injury lawyer will have to put on evidence as to the amount and extent of damages.
A) Special Versus General Damages
“Special damages” are those items of damage to which a party is easily able to ascribe a mathematical figure. For example, your medical bills are fairly easy to mathematically calculate. Your past lost wages fall into the same category. If you will have a lost earnings capacity in the future, an expert economist can give a mathematical projection of how much income in the future you will lose due to your injury. If there are future medical procedures which you are reasonably certain to need, a doctor can give an opinion as to how much those may cost.
“General damages” are those items of damages which may be more difficult to mathematically quantify, and they include items like pain and suffering, loss of enjoyment of life (what could you do before the accident that you cannot do now), the permanency of injury, “loss of consortium” (the amount by which one spouse is injured by another spouse’s injury) and so on.
B) Evaluating General Damages
How much value should we give to these categories of “general damages”? Of course, each case is different. If the pain was excruciating, then obviously the amount will be significantly higher. If a person truly had a devastating interruption in the enjoyment of life (let’s assume a star athlete getting ready to join the NFL was injured to the point he could not play football anymore), then in those cases, the general damages will be much higher. But in the typical auto accident case, how do we evaluate these general damages?
One technique used by lawyers in the past was to evaluate jury verdict reports. There are companies who gather up most of the jury verdicts in different counties and then publish them in a report. Lawyers can look at these reports and then compare how much juries awarded for general damages. In decades past, lawyers looking at these jury verdict reports saw a rough trend: jury verdicts for the plaintiff in personal injury cases tended to be around two to three times the value of the amount of special damages. So if the special damages in the case were $10,000, the verdicts were generally in the $20,000 to $30,000 range:
“3 x Specials” “2 x Specials” Special damages: $10,000 $10,000 General damages: $20,000 $10,000 Verdict: $30,000 $20,000
Lawyers, then, developed a back-of-the-envelope shorthand called “three times specials” or “two times specials.” Generally, in venues where the verdicts were a little higher (typically metropolitan areas), lawyers would use the “3 x Specials” rule of thumb, and in venues where the verdicts were a little lower (typically more rural areas), lawyers would use the “2 x Specials” rule of thumb. This is still the case in states like Illinois.
Keep in mind, however: “three times specials” is not some kind of guarantee of compensation. If you have $20,000 in medical bills from an accident in Illinois, that does not guarantee you will get $40,000 or $60,000 in compensation. It is just a rough “guesstimation” device used by lawyers and adjusters in arriving at fair settlements.
C) Billed v. Paid: The Missouri Problem
In California, like most states, Courts use a rule called the “collateral source” rule. That means that funds you obtain from other sources, like your own insurance, cannot be admitted by the Defendant to prove that your bills were actually less. Let’s say that you had $20,000 in medical bills, but your health insurance only paid $4,000 of that, and the hospital wrote off the other $16,000. In California, under the collateral source rule, the evidence about the $4,000 was inadmissible and could not be shown to the jury. That way, a Plaintiff could go into Court and claim $20,000 in medical bills.
This was also the rule of thumb in Missouri until 2005. In 2005, the Missouri Legislature adopted Tort Reform, and this dramatically changed these assumptions. In 2005, the rule was that BOTH the $4,000 and the $20,000 number could be shown to the jury. Then, in 2017, the Legislature ramped up Tort Reform even higher. After 2017, the Plaintiff can only bring in the $4,000 number and cannot bring in the $20,000 number. Because juries often use medical bills as a yardstick for the total verdict, this has dramatically decreased the value of cases in Missouri.
8. The Existence of and Amount of Insurance
One of the key factors in resolving your case will be the amount of insurance available. As an example, if there is only $25,000 in insurance available, and your medical bills are over $100,000, that could present a problem for you. Your lawyer will need to make sure every available insurance source is explored. You may have the greatest case in the world, but if the insurance amount is small, your recovery could be limited.
There are often strategies in the event of little insurance. For example, your lawyer may examine whether you have “Underinsured Motorist Coverage” on your own policy. Your lawyer may examine whether the policy limits of different cars can be “stacked.” This is a very difficult area of the law, so you will need to ask your personal injury lawyer for advice in this area.
9. Other Miscellaneous Factors
There are dozens of other factors which can increase or decrease the value of a personal injury case. Some of the more common factors are set forth below.
- A) State Law
- The laws of California, for example, are very different than Missouri. The “billed versus paid” problem is not present in California, but it is present in Missouri. Sometimes, there is a real question whether the laws of one state or another will apply. Your personal injury lawyer needs to evaluate this issue to determine which state’s laws will apply to your case.
- B) Venue
- Once you know which state law to apply, which court will you be filing in? If the accident occurred in a very rural county, and the case has to be filed there, the jury verdicts will typically be far lower. In more metropolitan areas, like the City of St. Louis, jury verdicts will generally be higher. There also may be a question as to whether your case will be in federal versus state court. Those issues can affect the value of your case.
- C) Judge
- The judge will make all the evidentiary rulings in the case. He or she will rule on all pre-trial matters. The judge which you draw for your case will probably make a big difference in determining whether you will recover, and if so, how much. Your personal injury lawyer will be able to evaluate where your judge stacks up.
- D) Evidentiary Issues and Legal Issues
- There may be a critical piece of evidence in the case. Let’s say that at the time of your accident, the Defendant was on his way to a drug deal. Will that come into evidence? You can see that if it does come into evidence, your case will be great because juries will hate drug dealers. But if it does not come into evidence, your case will be worth less. Your attorney will have to sort through all the evidentiary and legal issues pertaining to the specific facts of your case, because that may make the difference as to the value of your case.
- E) The Attorneys
- It seems obvious, but it is true: the choice of a lawyer makes a lot of difference. How does your personal injury lawyer stack up against the opponent? A good lawyer or a bad lawyer can make all the difference in your case.
- F) Credibility and Demeanor of Witness; Prior Convictions
- Do you make a good appearance in front of the jury? What will they think of you? Do you appear to be someone who is crabby and complaining all the time, or do you appear friendly and outgoing? Is your “life story” a good one? What kind of witness does the Defendant make? Often, juries make instinctual judgments based upon how well they like you. If they do not like you, or do not think you are credible, you will not fare well. On this topic is the subject of prior convictions. If either side has a prior conviction, that can be admitted on the issue of credibility. Juries do not like people with convictions. Make sure your lawyer knows if you have a criminal past.
- G) Poison
- If there is some aspect of the case that is going to automatically make the Defendant or Plaintiff unlikeable, that is very important. In a current case we are handling, the Defendant was a young teenager, who was jamming loud party music with other teenagers when he ran a red light and struck our client. That kind of poison will not be well received by a jury, and they will tend to award more to our client because of it.
10. Punitive Damages
Punitive damages are assessed to punish the Defendant for wrongful conduct. They are awarded when the Defendant’s conduct is outrageous and rises to “conscious disregard for the safety of others.” In a typical auto collision case, which just involves simple negligence, punitive damages are not awarded.
Your attorney will consider all these factors in coming up with a range of reasonable settlement values. Determining value is more art than science.
One other way personal injury lawyers derive a settlement value of a case is to ask other personal injury lawyers! Typically, a lawyer may survey five of his friends from the Plaintiff’s bar and ask each of them to give a value to the case. An average of those numbers frequently provides a reasonable range of settlement values. But always remember that value is in the eye of the beholder. Even lawyers practicing personal injury litigation for more than 25 years may have sharp disagreement as to the value of a particular case.
Call now for a free consultation with an experienced car accident lawyer at the law offices of The Medler Law Firm today. You will receive the highest recovery amount possible and there is no charge until we win!
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