Why you are smart to hire a personal injury attorney
Some of the important questions you need answered if you have been injured in a car wreck are
- how much money can I get from the other driver and his insurance company?
- will they pay me as much money as I want?
- will a lawyer charge me so much that I should just represent myself?
I’ve been asked them countless times over the past 37 years as an injury lawyer in Fort Worth.
I’ll give you answers that will help you make a good decision about what to do after your car wreck case.
I’ve discussed this topic on my website, in a book for injury attorneys, and at a presentation to the Texas Trial Lawyers Association.
A personal injury lawyer wants to get the most compensation for his clients sooner, not later.
How does anyone know how much an injury claim is worth?
They don’t. A personal injury lawyer can just estimate a range of values for how much an automobile collision is worth.
That’s because no one knows for sure what the exact value is unless and until a jury returns its verdict after a trial. And even then, the case can be appealed.
We know that 98% of cases settle out of court, either before a lawsuit is filed, at a mediation, or at another step of the litigation process.
Most cases that are taken to a jury trial are there because the plaintiff’s lawyer believes that the settlement offer is substantially less than what the jury will award.
Few cases will settle until both all parties believe that the risk and uncertainty of litigation is outweighed by the advantage of receiving or paying an exact dollar amount. For most people and companies, a bird in the hand is worth two in the bush.
The problem is that each side can estimate the value of the same case with dramatically different results. On the one hand, the plaintiff and his attorney want the highest amount to pay for damages and attorney’s fees, while on the other, the insurance company’s goal is obviously to pay out as little as possible.
The plaintiff’s attorney will have an idea of what the case might be worth in court because he negotiates with insurance companies every day, tries cases to juries, and reads court reports that list what the verdicts are that month.
But he needs more information from the injured person before he can accurately and intelligently assess an estimated financial recovery. How does he know?
Chief factors that determine what your injury claim is worth
There are many details that factor into what the final amount is but the most important ones are the
the severity of the crash,
quality and quantity of medical treatment and bills, and
amount of the insurance policy/size and attitude of the liability carrier
There are many other considerations.
Variables that affect the value of your case
- How did the crash happen? Is it 100% clear that the other driver is 100% at fault?
- Did he admit fault at the scene? Is he going to admit that in court?
- What is the background of the defendant driver? (and the plaintiff?)
- Are there eyewitnesses on your side? Will they appear in court and back you up?
- Did the police come to the scene, determine liability, and write a favorable police report? Was a citation issued, and did the defendant pay it?
- Was the other driver DWI, using drugs, or doing anything else that might inflame a jury?
- Are there any photos of the vehicles, scene, skid marks and damage?
- How serious does the damage to the injured person’s vehicle look? How badly hit was the other driver’s vehicle? Were they towed away? How much was the costs of repair or were they totaled?
- Was a third vehicle (or even more) involved, like in a chain reaction? Who hit whom first?
- Was weather, time of day, sunset, or lighting a contributing factor?
- Were there any valid excuses? Did the defendant driver have a sudden medical emergency, say a heart attack or diabetic seizure? I had a case several years ago when my client rear-ended the vehicle in front of her when a large box blew across the interstate, causing all traffic to suddenly slow; I was able to defeat the insurance company’s lawyer’s attempt to add the person who allowed the box to be on the road and the case eventually settled for a good amount.
- Could the plaintiff have avoided or at least reduced the severity the impact, e.g. by swerving, slowing down, honking, etc.?
- How fast were the vehicles going? What was the posted speed limit?
- Was the condition of the road a factor? Were the streets wet or icy?
- Were any vehicle’s brakes, maintenance, or other mechanical issues contributing factors?
- Was someone texting or talking on the phone? How can this be proven? This becomes illegal on September 1st in certain circumstances (and subject to the Texas Legislature’s special session currently in progress), since the location of the crash controls the city’s restrictions at the present time.
- Did the injured person(s) begin suffering pain and injuries immediately? Was he rushed by ambulance to an emergency room? Did he go to a hospital, emergency clinic, or doctor within 24 hours?
- When did he first seek medical treatment? Was there a delay? If so, what was the reason? What was the diagnosis and treatment in that first visit with medical professionals?
- What testing (x-rays, CT scans, MRI’s, etc.) was performed and what were the results?
- How soon after that did the injured person go to another medical professional? What was the treatment, how long did he treat, and what were the results?
- Did the patient follow the doctor’s advice?
- Did he treat on a regular basis? For how long and how often?
- How serious were the injuries? Were any bones broken? Is this a case of a sprained or strained neck and back, sometimes referred to as “whiplash,” or are intervertebral discs in the neck, mid back, and low back bulged, protruded, or herniated?
- Were scars left? Where are they and how unsightly are they?
- Was the injured party wearing his seat belt?
- Could any injuries claimed be argued to have been preexisting, i.e. can the injured person show that they had never been injured before? Had he ever been in a previous car accident or otherwise hurt his neck or back? How long ago did that happen? Had he recovered?
- What further medical treatment was performed?
- Is additional treatment needed? What?
- Was the plaintiff referred to a specialist, usually an orthopedic surgeon or neurosurgeon? What were the results of that referral?
- Was a surgery performed? Recommended?
- Were further pain management techniques, e.g. epidural spine injections, performed? Did they provide long-lasting relief?
- Has the plaintiff healed from his injuries?
- If he is still experiencing pain, how much pain is felt, how often, how does this disrupt his life, and how does he deal with the pain?
- Has a doctor diagnosed in writing that the injured person will suffer from permanent pain, disability or disfigurement?
- What kind of doctor was it — a Medical Doctor, Doctor of Osteopathy, or a Doctor of Chiropractic?
- What do the written medical records, reports, and bills say?
- How much are the total medical bills? Were they paid by health insurance or someone else? Were bills written off? How much did the injured person pay? How much was his annual deductible and co-pays?
- How much is he still liable for? Can the outstanding medical bills be reduced?
- Was a hospital lien filed?
- Are there statutory liens to governmental agencies that need to be satisfied?
- Were any letters of protection given?
- Does any hospital or doctor have an assignment of benefits on file? Is it valid?
- Were there personal injury protection benefits available? Were they filed on? Where did this money go? Are any benefits still available?
- Were there other insurance benefits available, including uninsured/under-insured motorist coverage, workers compensation, Medicare, Medicaid, VA benefits, etc.?
- Did the injured person lose time from his job? How much money was lost?
- Did the ER and/or doctor keep him off work in writing?
- How can he prove his lost wages?
- Did he also lose benefits, e.g. overtime, bonuses, raises, 401(k) and other contributions, etc.?
- Was light duty available?
- Was he terminated from his job due to the crash? How can this be proven? Is all income reported on 1040’s?
- Was he able to secure another job, and how much income was lost in the interim? Is he making more or less in the new job?
- Are punitive damages a possibility? They are rarely awarded but I recently settled a case just before trial where the at-fault driver of a heavy piece of construction equipment had taken cocaine within the 24 hours before he drove it across the interstate in Fort Worth, which lead to a much higher settlement before trial.
- Which insurance company is defending the at-fault driver? Who is the adjuster?
- How much and what type of insurance coverage is available?
- Does the at-fault driver have any non-exempt assets?
- Is his vehicle owned by his company, is it covered under a policy, who is defending it, and what are its assets?
- Is a minor child (under the age of 18) an injured party? Who is legally allowed to represent him in court?
- Is he old enough that he can legally testify in court regarding liability and damages?
- Is a guardian ad litem required to protect his interests? Is a structured settlement and court approval necessary?
- Which side has the better case in court — who has more credible fact and expert witnesses and documentary evidence to sway the jury? On a 100 point scale, how would each side fare answering the above questions?
- Where will a lawsuit be filed? The rules regarding the venue of the case can be complicated, especially if a company vehicle was driven by the at-fault driver. Dallas County is considered to be a much more plaintiff-friendly place to try a case in Texas, while Collin, Denton, Tarrant, and the surrounding more rural counties are not.
- Who is the plaintiff’s attorney, the other driver’s lawyer, the judge and jury? How economically liberal, moderate, or conservative will the jurors be when they award monetary damages?
What should I do?
As you can see, this is an extremely complicated process with a lot of unknown variables. You presumably do not know all of these answers now, but any one problem can and will be used against you during settlement negotiations and/or at trial.
A good lawyer will maximize the strengths of your case, minimize the weaknesses, and manage the details to get you the best result.