Clients should not talk to anyone about their personal
injury cases, other than their attorneys, doctors,
immediate family or other essential personnel. Anyone to
whom the client speaks can be subpoenaed to testify and
repeat what was said. Anything said can be used against
the speaker. If court testimony is required in a related
proceeding such as in traffic court, counsel should be
consulted prior to testifying.
No documents should be signed without prior review by the
attorney.
Clients should document their injuries by attending each and
every scheduled appointment for doctors, hospitals,
and therapists. There is no good way to prove a
patient's condition on a particular day unless there
is a medical record of a visit with a health care
provider. Detailed notes are made and kept by
medical personnel of everything important at each
visit. Such evidence is essential for presentation
of the case at the time of settlement or trial.
Clients should make and keep accurate records of events and
transactions relevant to the case, such as time
missed from work, health care appointments, medical
bills, transportation bills, property damage repair
bills and estimates, rental bills, photographs of
the injury and property damage, restrictions on
activities of work life and daily living, and pain
and suffering. The lawyer will have to explain how
the accident affected the client's life in order to
maximize the claim. A detailed account of the
effects of the accident, together with an
itemization of all special damages is crucial.
Medical bills should ordinarily be paid by group health
insurance, automobile or premises medical payments
coverage. Most such policies provide that the
insurer which pays is subrogated to the rights of
its beneficiary against the tortfeasor and liability
carrier for full reimbursement. The doctors and
hospitals should not be kept waiting while the case
is pending.
Clients should keep their attorney informed of any
significant change in work, treatment or activities
between the accident and resolution of the case.
Major events must be properly documented. New
accidents or traumas must be investigated and their
effect evaluated close in time to the event.
Cases ordinarily should not be settled within the
first six month following an accident. Insurers
almost always insist on a full and final release
before they settle. After a release is signed, a
claimant bears a heavy legal burden to justify
reopening the case. If medical treatment, bills,
additional disability or wage losses continue, there
is no remedy. For that reason, settlements are
discouraged until several months after a healing
plateau is reached and a medical opinion has been
obtained indicating either that the prognosis is
good or that future problems can be predicted with
reasonable accuracy, so that they can be compensated
as part of the settlement.
At the appropriate time for settlement, the lawyer will
obtain medical records, medical reports, functional
capacity evaluations, if appropriate, wage loss
verification, medical and property damage bills, and
vocational reports, if appropriate. A probable jury
verdict range will be discussed with the client. A
demand will be sent to the liability insurer for
settlement within that range. The client has the
final right to approve or disapprove any offer that
is made. The attorney will advise but cannot
ethically make the final decision alone. In the vast
majority of cases, settlement negotiations result in
an acceptable resolution of the case without the
filing of a lawsuit.
If a lawsuit is started, expenses will begin to mount at a
precipitous rate. Filing fees, service of process
fees, witness subpoena fees, expert witness fees
(sometimes as much as $500 per hour for doctors),
special investigations, court reporter fees (usually
$100 or more per deposition), and other routine
expenses can add up so fast and so high that the
client's net recovery will often be lower with a
higher settlement after suit is started than it
would have been with a much lower settlement before
suit was started. For this reason, the decision to
litigate should not be made lightly, or without
regard to the result on the bottom line.
Pretrial discovery usually takes about a full year. During
that time, both sides investigate in great detail
all aspects of the claims and defenses. The vast
majority of cases are settled before trial.
Trials are usually held only in cases with significant
disputes on liability or where the damage potential
warrants the risk and cost of litigation. Very few
of the personal injury cases which are sent to an
insurance company result in trial. The system is
designed to resolve them beforehand, and usually
works to that end quite well.
Many lawyers who handle personal injury cases have quite
limited experience in actual trials, and are not
certified by the National Board of Civil Trial
Specialists. A personal injury claimant should be
careful to select a lawyer who has extensive
experience in jury trials.