- What information is needed after the accident?
- What should one do at the accident scene?
- What should I do about talking to the insurance adjuster?
- What question should I ask a lawyer?
- What should I consider when making an injury claim?
- What is required to settle the case with the adjuster?
- What is a contingency fee?
- How does a lawsuit proceed?
- What is mediation?
- What about defective product cases?
What information is needed after the accident?
Following an automobile accident, there is a lot of information which will need to be gathered before you file a claim. The sooner you gather the information, the more likely it is to be accurate and complete. Even if you do not think you will file a claim, it is easier to gather the information early and discard it later than it is to recreate information which was not obtained at the beginning.
In most accidents, an investigating police officer is called to the scene where he fills out a detailed accident report form. This form contains much information about the accident and the parties involved. Thus, a good starting point in gathering information is to obtain the accident report.
You should also get a copy of your own automobile insurance policy. Even if you are not at fault in an accident, your own insurance company may have obligations to pay medical expenses, property damage and even personal injury damages if the other driver does not have insurance sufficient to cover your damages.
Obtain copies of medical records from any physicians you may have seen after the accident. You may want to obtain your physician records from before the accident to help prove that your injuries were caused by the accident and not preexisting.
If your injuries have caused you to miss work or use vacation or sick leave, you may want to copy your W-2 forms and paycheck stubs to help establish a wage loss.
Obtain copies of repair estimates for your vehicle's property damage. If you get more than one estimate, be sure to get copies of all estimates.
Obtain names and addresses of any witnesses to the accident. If possible, get statements from them about what they witnessed. The names and addresses of all occupants and drivers involved in the accident and their respective insurance information is also important to obtain.
If possible, take pictures of your injuries, the damage to your vehicle and even the accident scene. Such pictures could be critical evidence if it becomes necessary to prove your claims at a later date. Pictures of injuries can help others understand the degree of pain and suffering you endured.
What should one do at the accident scene?
When you are involved in an automobile accident, you may not be thinking as clearly as you should. Knowing what to do at the scene could not only save someone's life, but it could also help you at a later point.
If you have been involved in an accident, the most important thing to do is immediately ensure the safety of the people involved in the accident. This means that you should take steps to secure the scene and your passengers or the occupants of the other vehicle from further danger. This may require that the vehicles be moved from a busy highway over to the shoulder of the road. The vehicles should also be checked for leaking gas or other potentially flammable liquid.
Next, the passengers or occupants of the vehicles should be checked for injury. Do not attempt to move injured persons unless their lives are immediately threatened by an immediate peril. If a person has a severe injury like a broken back or neck, moving them could cause permanent damage or injury. Call 911. If necessary, use landmarks, road signs or mile markers to assist with the accident location. Also, be sure to specify the type of emergency vehicles which will be needed such as an ambulance or fire truck. Allow E.M.T. personnel to examine you for injury.
You should get the name and contact information of the other driver(s) involved in the accident, as well as any occupants. Record the make, model and license plate number of all involved vehicles. You should also obtain, if possible, the vehicle owner’s name and any applicable insurance information for the vehicle. It may also be important to record the exact time of the accident which can be reported to the police.
Provide complete, detailed information to the investigating officer. Do not discuss the details of the accident or how it happened with the other driver. You do not want anything taken out of context or attributed to you that you did not say. Remain calm even if the other driver becomes irate. If possible, take pictures to document the accident scene before the vehicles are moved.
Also, since many people who may witness the accident often leave the scene before the police arrive, record the contact information of any witnesses. If the witness cannot remain on the scene, make sure you provide the contact information to the investigating police officer so the officer can interview the witness at a later date.
With the overuse of cell phones on today's roadways, be sure to report cell phone use observed of the other driver to the investigating police officer. Cell phone records can be matched to the approximate time of the accident.
What should I do about talking to the insurance adjuster?
Most insurance policies require that you cooperate with your own insurance company when a claim is filed. This means that if your own insurance company contacts you, you will likely have to discuss the accident with them.
However, if you have already retained an attorney by the time you are contacted by your own insurance company, you should tell them to contact your attorney to arrange any discussion or meeting about the accident.
Generally, you are not legally required to cooperate or discuss the accident with the insurance company for the other driver. However, this does not usually stop the other insurance company from attempting to contact you and obtain a statement from you about how the accident occurred and any resulting injuries.
Be very wary about adjusters who contact you requesting a statement from you or other information such as medical records, in order to "settle your claim." For the most part, the only reason the adjuster for the other insurance company wants your statement is so the insurance company can attempt to minimize its payment of the claim. Moreover, your medical condition may not be fully diagnosed or known when you speak with an adjuster for the other insurance company and therefore an inaccurate picture of your damages may get conveyed.
If you are in doubt about whether or not to talk to an adjuster, you should consult an attorney. Once you inform the adjuster that you have retained an attorney, they are prohibited from contacting you directly again. They must work through your attorney to resolve the matter.
Many people prefer not to negotiate or deal with the adjuster and would prefer an experienced attorney to handle the matter for them. More often than not, the attorney will be more successful in getting you a fair settlement or judgment than most people can obtain on their own with the adjuster. This is because attorneys know how adjusters evaluate the value of a case and know what courts will likely award for similar injuries if the case does not settle.
Although the decision to speak to the insurance adjuster for the other company is really a judgment call on your part, it is usually wise to contact an attorney before you do so to make sure you do not inadvertently hurt your own claim.
What question should I ask a lawyer?
It is important to schedule a face-to-face meeting with the lawyer to discuss issues relating to his or her practice and expertise. During that meeting, you should ask the lawyer some or all of the following questions:
1. What experience does the lawyer have with this type of case if it goes to trial?
Many lawyers are great at "working up" the case, but try to avoid going to trial even when the other side is offering an unreasonable settlement offer. Most lawyers who try a lot of cases handle the case from the beginning as if it will proceed to trial. If the case settles, fine. If not, they are prepared to try the case. A lawyer who handles the case as if it is going to settle either must accept an unreasonably low settlement offer or not be fully prepared for a trial. In either event, the client loses.
2. Will I have control of the decision to settle the case or proceed to trial?
Some lawyers seek little or no input from the client when the decision to settle or try the case is at hand. Make sure that the lawyer you choose allows such input and cannot settle your case without your express direction to do so.
3. What costs will be involved in handling my case?
Costs are a necessary part of any case. Almost all lawyers take a fee on the total amount recovered, while the costs come out of the client's portion. If those costs are high, the client’s recovery can be substantially reduced. Make sure your lawyer will provide a detailed accounting of the costs as the case progresses so there are no surprises.
4. How is the value of my case determined?
It is important to understand how a lawyer evaluates cases. Most lawyers use a combination of experience and a review of past cases in considering the potential value of the case. The chance of proving liability and the fault of the client or other parties is also a consideration in the evaluation.
5. What are my chances for success in this case?
It is also important to understand the realistic chances of success in your case. The attorney should explain the challenges in the case to avoid any misunderstandings later.
What should I consider when making an injury claim?
The first and foremost consideration in making a claim is the nature and extent of your injuries and losses. Obviously, minor injuries and losses may not be worth the hassle associated with bringing a formal claim as a result of the accident.
Frequently, poor treatment by the insurance adjuster will lead a client, who otherwise would not have filed a lawsuit, into proceeding in court. Many people simply want to be reimbursed for their out-of-pocket medical and other expenses. It is only after such minimal claims are denied or greatly reduced by the insurance adjuster do clients decide to hire an attorney.
Another factor commonly considered by clients when contemplating whether or not to bring a legal claim is the exposure of their private life and information. When a lawsuit is filed, there are few aspects of your life that can be protected.
In automobile cases, the choice of whether to institute a claim may depend upon which party the fault has been initially placed by the investigating police officer. Moreover, there are certain legal presumptions that place fault on one driver or the other depending on how the accident occurred. For instance, in a rear end collision, there is generally a presumption that the driver who rear ends another car is at fault in the accident. Of course, there are instances in which the preceding vehicle which was rear ended is at fault. However, the ability to prove fault is a key factor in deciding how to proceed.
Finally, the cost of proceeding with the litigation as compared to the potential recovery should be considered. If a case will cost $10,000 to pursue and the available coverage if the claim is successful is $10,000, the case may not be worth pursuing. Unless the damages are substantial and clearly above the available policy limits, most insurance adjusters will not offer their policy limits in settlement. It is only after the case is developed, depositions are taken and money is spent that most contested cases can be resolved.
What is required to settle the case with the adjuster?
Insurance companies require documentation before they offer to settle a case. This documentation may be in the form of accident reports, witness statements, medical records and bills. It is simply not enough to claim that an injury caused you pain which limited your ability to work. If your injuries are serious enough to warrant medical care, you should go to the doctor for treatment. It is also important to attend every medical appointment, if possible. Missing scheduled medical appointments or therapy sessions may hurt you in several ways. First, your injury recovery time may be prolonged, and second, it sends the message to the insurance adjuster that your injuries may have healed.
Items such as lost wages can also present problems to adjusters during settlement negotiations. If the nature of your income is commission based or based on some other incentive, adjusters have a difficult time paying for wages that are not clearly documented as being lost. It is important to provide the adjuster with all potential information regarding your lost wages if you intend to claim a loss of wages. These documents may include W-2 forms, tax returns, pay check stubs and any other historical earnings records.
You should also keep track of prescription records and bills. Hospital and physician charges and records should also be kept from the very first treatment. It is not enough to tell the adjuster about the bills and treatment without providing the written documentation which will prove your claim.
Once you have all of the available written documentation which will prove your claim, a settlement demand brochure can be forwarded to the adjuster. This will give that adjuster a complete set of records in one package which will make it easier for him or her to review and evaluate the claim.
What is a contingency fee?
A contingency fee is a fee that is paid if the attorney obtains a recovery on behalf of the client. If no money is obtained by the lawyer in the case, then the client does not owe the lawyer a fee. If a monetary award is obtained, either through settlement or verdict, the lawyer receives a percentage of the total recovery.
The amount a lawyer can charge for a contingency fee is generally not regulated by law. Contingency fees are fairly uniform and most attorneys charge a contingency fee of 33 1/3 of the total recovery. However, a more complex and time consuming case which requires the expenditure of considerable costs by the lawyer will result in a higher contingency fee. If a lawyer must risk substantial sums of money on a particular case, he or she may also charge a higher contingency fee. Also, if the case involves a second trial or appeal, the contingency fee may be increased.
A common question raised by clients is whether the contingency fee is calculated on the total amount recovered or is it calculated on the total amount after the expenses have been deducted. Most attorneys calculate the contingency fee based upon the total amount recovered.
How does a lawsuit proceed?
If you are contemplating a lawsuit, you should understand how a case proceeds. Personal injury lawsuits begin with the service or filing of a Complaint against one or more defendants. (The Complaint sets forth facts and law supporting the plaintiff's claims.) The defendants have a set period of time to file an Answer which typically admits or denies the allegations contained in the Complaint. The Answer may also set forth any specific defenses to the allegations in the Complaint.
After the Answer is served or filed by the defendants, the lawsuit enters into a period called “discovery.” Discovery is a term used to describe the period during which the parties learn about or "discover" all of the facts and witnesses and testimony supporting the claims and defenses. Typically, discovery encompasses the exchange of written questions, requests for the production of documents, requests to admit certain facts, and deposition testimony taken from the various witnesses. Depending on the documents and witnesses involved, the discovery process can take many months or longer to complete.
Another phase of litigation is the exchange of information regarding expert witnesses. In many cases, the law requires that the liability and damages suffered by the plaintiff must be proven by expert witnesses. Depending on the type of case involved, these experts may include physicians, engineers, safety experts, and accident reconstructionists.
When discovery is complete, the parties often consider resolution of the case through settlement or mediation. However, if the parties are unwilling to settle the case, then it proceeds to trial.
What is mediation?
Mediation is an informal method of attempting to settle a dispute. It is not a judicial proceeding and it is not binding on the parties, unless they reach a settlement.
Generally, one of the parties will suggest mediation. If both parties are agreeable, they will select a mediator. A mediator is any disinterested third party, without ties to either side, who can help the parties reach a mutually agreeable settlement. The mediator's only interest is in getting the case resolved.
Mediators are usually lawyers who have been specially trained in the methods of mediation. It is a confidential process and the parties sign an agreement stating that all statements made at the mediation cannot be used in any court proceeding and that the mediator cannot be called as a witness at the trial.
The mediator may spend most of the day going back and forth between the parties discussing the strengths and weaknesses of the case with each party. He or she will also communicate settlement offers to the respective parties. This back and forth process continues until the parties reach mutually agreeable settlement terms or until the mediator is satisfied that the case cannot be settled in its present posture. If the case does not settle, the parties continue with the lawsuit and nothing said in the mediation can be used by either party.
What about defective product cases?
Lawsuits which allege that a product is defective are difficult and expensive to pursue. They are difficult because most state laws require that the party bringing the lawsuit must prove that the product was defective and unreasonably dangerous at the time the product was sold. They are expensive because most cases require that the attorney retain an expert to inspect and test the device and render testimony about its defective design.