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.