|
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. |
