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AFTER THE ACCIDENT: What should you do?
If you're injured and someone else is responsible, what steps should you take to protect your rights?
In my 28 years of practicing law, I have learned that you almost always will face problems dealing with the other side, or their insurance company in asserting a personal injury claim. In an ideal world, you would determine the amount of your property damage, determine any lost wages or loss of income, determine a reasonable amount for pain and suffering and loss of enjoyment of life and then make a claim for the total amount against the other party's insurance company, and settle the case promptly. In real life, it is never that simple. Unfortunately, in real life, you are certain to face one or more of the following obstacles and problems from the person or persons responsible for causing your injuries, and from their insurance company and their lawyers:
a The person or persons responsible for causing your injuries are uninsured, inadequately insured, and don't have the financial ability to pay any or all of your damages.
The person or persons responsible for causing your injuries completely deny liability.
The person or persons responsible for causing your injuries deny full liability, and blame you, or someone else for contributing to your injuries.
The other side denies that you were injured, or denies the severity of your injuries, and accuses you of exaggerating your injuries.
The other side claims that some of your medical treatment was unnecessary, or that the cost of your treatment is excessive.
The other side claims that some or all of your injuries and symptoms were not caused by the subject accident, and that they either pre-existed, or else came about long after the accident in question.
The other side claims that you are exaggerating or overstating your income loss.
The other side claims that you should have been able to work, and thus your income loss claim should be reduced, or
eliminated from your claim.
The objective of the insurance company is not to compensate you fairly; it is to pay you as little as it can get away with, or nothing at all. In attempting to accomplish this goal, the insurance company, will go to great lengths, including often engaging in questionable, and sometimes even unfair tactics to avoid compensating you properly.
Therefore you must take the necessary steps to best preserve and protect your claim. The best way to properly protect your claim is to hire an attorney as soon as possible after the accident has occurred. But that is not always possible, and in any event, does not always happen. If you have not already hired an attorney, you should at least take the following steps to protect yourself and your claim:
A. DOCUMENT YOUR CLAIM
Your claim essentially consists of two parts; Liability and Damages. For your claim to get the attention of the other side, you must document, as much as possible and as quickly as possible, both of these elements.
1. Documenting Liability:
If your injuries were caused by an accident, it is very important that there be a report made of the accident. Traffic accidents should be reported to the local police or highway patrol, and should result in a written report. If no such report was made at the time of the accident, you can sometimes call the appropriate police agency and request permission to file a report, or have the police create a report after the fact.
If your injuries occurred in a store or place open to the public, make a report to the manager in charge, and ask for a copy of any statement that you make before you leave. If your request is refused, write a letter to the store as soon as possible, detailing the information pertinent to how your injuries were incurred, and mail it to the manager of the store BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED.
Make sure to include as much information in the report as possible, including the full names, addresses and phone numbers of all witnesses and involved persons. Always keep a copy of anything you give to the other side.
If your injuries were caused by a faulty condition, such as a badly uneven sidewalk, it is important that you be able to show the condition as it existed at the time of your injury. The best way is to have yourself or someone else take plenty of photographs, clearly showing the condition as it existed when your accident occurred. You need to get these photographs taken before the condition is corrected or changed. Use props, such as a ruler or tape measure or other appropriate object, to demonstrate or highlight the problem.
c. Keeping evidence:
Carefully maintain all evidence, (broken bottle, foreign object in your food, shoes you were wearing in a slip and fall case, device that caused your injuries, such as an electrical cord, etc.) in a safe place. If the object is small enough, place a protective cover around the object, and write down important information on the outside.
2. Documenting Damages:
"Make sure to take photographs of as much evidence as possible, before the conditions change. That means lots of pictures of your vehicle, taken from close and far, and different angles, showing as much as possible of the areas and extent of damage to the vehicles involved, or the site of, and condition which caused your accident. If your injuries are visible, take photos of abrasions, scrapes, bruises, lacerations, broken bones and casts, slings, collars, as well of you in your surroundings, (hospital or other bed, wheelchair, walker, and the like.) As your injuries progress, make sure to take additional photos, showing changes. Keep careful track of the dates on which all photos are taken.
b. Medical Records:
You should see your doctor, or be seen in the trauma unit at a nearby hospital soon after the accident. Make sure to completely describe all pain that you are having, and do your best to make sure that your doctor carefully writes down your complaints.
c. Income records and documents:
Persons who are self-employed have a harder time establishing their full income loss than do employees. Employees can usually
document their income loss by furnishing some pay-check stubs showing a reduction of pay, or need to use up sick leave or vacation leave as a result of being injured and unable to work. That, together with medical records and a letter from the employer is usually considered sufficient to establish income loss.
If you are self-employed, your injury costs your business money. You are either unable to work for some period of time, or you are able to work only part-time, or less efficiently. You may need to hire additional help because of your injuries. A loss in your ability to take care of your customers, clients, or patients can result in a long-term downturn in your business, as a result of your loss of goodwill.
Self- employed people need to have clear books and records, and be willing to show them to the other side. Although the other side cannot force you to show your tax returns, copies of Schedule C's for similar periods before the accident can be helpful in showing a slowdown in income, or increase in overhead which is due to your injuries.
It is critical to not only have accurate records of your income for a reasonable period of time prior to your accident, but to make sure that you have accurate and detailed business records afterwards. Start documenting these losses immediately, before you lose the information necessary to recreate them.
d. Expense records:
If the accident and your injuries are costing you other out of pocket expenses, (such as housekeeping help, gardening help, baby-sitting help, car rental or taxi fare) make sure to keep a good record. Pay whenever possible by check or credit card, so that you have documentation to support your claim.
AFTER THE ACCIDENT: What should you avoid doing?
If you are thinking of hiring an attorney, you should avoid doing the following, until you first get advice from an attorney:
If you don't have an attorney, the insurance company will try to require you to give a tape recorded statement, and sign authorization papers permitting them to get your private records. They will try to get you to sign a settlement and release for less than the value of your case. In fact, they may refuse to deal with you unless you give in to these demands. You do not need to do any of these things.
A. Do NOT discuss the details of your claim with the other side, or their insurance representative: You may be contacted by the other
side's insurance company. Give out only necessary, general information.
B. Do NOT permit the other side's insurance company to tape-record your statement: You should never give the other side's insurance company a written statement, and you should never permit them to take a tape recorded statement from you, without the advice and permission of your attorney.
C. Do NOT sign papers permitting the other side to obtain your records: The other side's insurance company will usually try to get you to sign papers allowing them to get your medical or other records. If you attempt to settle without an attorney, you should not agree to this without at least first talking to an attorney.
Keep in mind that, if you wish to settle your claim without an attorney, the insurance company for the other side will usually refuse to settle with you unless you agree to do the things listed above. Even if your case is small, you will be better off if you speak to an attorney and get some general advice. If you don't have an attorney, you can try contacting your local Bar Association. Most counties have a lawyer referral service where you can speak to an attorney for 30 minutes or so for a small charge, (usually less than $50.00).
D. Do NOT settle your case without an attorney's advice, unless your injuries are minor and have completely resolved: Once you sign a settlement agreement, you can not re-open your claim, even if your injuries are more serious than you thought, or if you later determine that your settlement was unfair or incomplete. If you don't have an attorney, you should only agree to a settlement if you are sure that your injuries were minor, and have completely, or essentially resolved.
E. Try to NOT discuss the details of your claim with outsiders: You will undoubtedly feel a need to speak to family, friends and co¬workers about your accident. Even though you may be tempted to discuss the details of your accident or injuries with friends and co¬workers, you should not. These discussions are not confidential. They can be misunderstood or taken out of context. Your discussions are subject to investigation by the other side. Be circumspect about what you say about your case, and who you speak to about it.
DEALING WITH YOUR OWN INSURANCE COMPANY:
You are required to co-operate with your own insurance company, and unreasonable failure to do so may jeopardize your coverage. In most cases, you should allow them to take pictures, analyze your property damage, and obtain necessary information regarding the accident and your injuries.
Keep in mind that you are free to obtain your own damage estimates, and medical advice and treatment. You are not bound to
have your car fixed, or your medical treatment performed by persons selected by your automobile insurance company.
You should understand that if you make an uninsured motorist claim, your own insurance company will be your adversary. It is best to consult with an attorney before discussing any aspect of your claim with your insurance company, or allowing them to take your statement. A statement by you which either admits fault, or can be construed as admitting fault, or which is obviously false in a material respect can jeopardize an uninsured, or underinsured motorist claim that you might be entitled to bring.
MAKING A CLAIM FOR YOUR INJURY. WHAT IS INVOLVED?
In order for a personal injury claim to exist, someone (often called a "third party") must be liable for causing your injury, and you must have sustained damages as a result.
WHAT CREATES LIABILITY?
Most claims for personal injury arise because someone was injured because of someone else's negligence. However, there are sometimes other Legal reasons which can give rise to liability. The most common legal grounds for imposing liability are the following:
The vast majority of personal injury claims are based on a claim of negligence (fault) on the part of the third party. Negligence of the third party, which directly leads to the injury, is the basis of probably more than ninety percent of personal injury claims. However, there are several well-recognized exceptions, where liability can be imposed against the third party, even in the absence of negligence. Some of those additional grounds are discussed below:
2. Strict liability:
Strict liability is liability, which is imposed by law on a party, without regard to his or her negligence. This kind of liability can be imposed under circumstances where the liable party is legally responsible for the fault of someone else, usually due to the relationship between them. Examples of strict liability are:
Employers, when injuries have been caused to others by the fault of their employees;
Parents, in some instances where a minor child has caused injury to third party;
Owners of animals who bite someone or who cause an injury when the animal is at-large;
One who is liable without regard to negligence is held to be "strictly liable."
WHAT ARE DAMAGES?
The term "damages" means the financial or monetary equivalent that is necessary to measure and compensate for your losses. Generally, there are two measures of damages; economic or "special." damages, and non-economic or "general" damages. (A third measure of damages, called "punitive" damages is intended to punish a wrongdoer. Punitive damages are often imposed in cases where the other driver has been drinking or is impaired by drug use.
1. Economic damages:
Economic damages are financial losses that are experienced by the injured person. They most usually consist of past and reasonably certain future medical expense, and past and reasonably certain future income losses, and diminution of earning capacity. Additional elements that frequently are included in economic damages include transportation, and household help incurred during a period of disability, and damage to property.
2. Non-economic damages:
These damages cannot be financially quantified, and usually include things such as pain and suffering, restriction in activities of daily living, limitation or loss of use of a body part, loss of enjoyment brought about by a change of lifestyle, and mental and emotional upset caused by the injuries sustained.
THE PROCESS OF BRINGING A CLAIM
Once your hire The Garrison Law Firm we will conduct an initial interview to get the basic information about your claim. After the initial interview, we will take the necessary steps to obtain confirming additional information, such as requesting a copy of an accident report, obtaining a copy of your related medical records, obtaining records from your employer or business, hiring an investigator if necessary to ascertain the presence and observations of witnesses, and other tasks which are reasonably calculated towards establishing the full amount of your damages.
Once you have completed your medical treatment we will make a full assessment as to the impact that your injuries and limitations will have on your earnings, ability to perform your job, your household duties, and to ability to engage in your daily activities. It is essential that all aspects, past and future, of your medical condition, your earnings and income potential, and your other out-of-pocket expenses, which relate to your injuries, be fully explored. A proper determination of what constitutes fair compensation for pain and suffering usually requires skill, research, and years of experience and training.
A comprehensive and detailed settlement demand letter will be sent to the insurance company for the other party to see whether we can come to agreement regarding liability and damages. A case which is properly analyzed and developed in this fashion can often be settled favorably without need for litigation.
WHAT IS INVOLVED IN A LAWSUIT
Unfortunately not all cases can be settled. If a lawsuit is needed Garrison Law Firm stands ready to fight for you. A lawsuit starts the path towards ultimate resolution of the case, either by trial, or, in most cases by a settlement achieved prior to trial. A lawsuit involves a number of different procedural steps and aspects. The following is a list of the most common ones:
1. Drafting, Filing, and Serving the Lawsuit:
The lawsuit itself must be properly drafted, and must contain the necessary allegations against the properly designated defendants. Failure to meet these requirements subjects the lawsuit itself to attack. The lawsuit must be filed in the appropriate court, and within the prescribed period of time allowed by law. After filing, a copy of the lawsuit and a properly prepared summons must be served on the defendants. Completion of this process requires the defendant to answer the complaint, and brings the defendant before the court.
2. Discovery and Investigation:
After a properly prepared lawsuit has been filed and served on the defendants, the process known as discovery begins. Discovery is the process by which each side obtains information about the basis for the other side's claims and/or defenses. Since discovery responses are answered under oath, there are stringent requirements for giving truthful and complete responses, and potentially serious penalties for failure to do so.
Remember, other than for very rare exceptions, your attorney will be with you and will assist you in every aspect of responding to discovery. And while you are supplying responsive information to the other side, your attorney will be conducting discovery against the defendants as well.
The following are the generally utilized forms of discovery:
Depositions are a procedure where the attorneys are permitted to ask questions of the parties and other witnesses, and to require answers under oath. Depositions are usually taken in person, in the lawyer's office or another agreed-upon place. The questions and answers are taken down stenographically by a certified court reporter, and a transcript of the deposition is prepared for future use and reference.
Interrogatories are written questions which must be answered in writing, under oath, usually within thirty days. Because the procedure is less conducive than depositions towards obtaining information on the ultimate facts, interrogatories are usually used to obtain foundational information, and the names and identities of essential witnesses.
C. Requests for Admissions:
Requests for admission are foundational questions used to determine and frame the foundational issues of the case.
D. Requests for production of documents and things:
This discovery device is a very useful tool, requiring the responding party to gather together and furnish to the requesting party all manner of documents which in any way pertain to the relevant issues, as designated in the request. Examples of such documents would be photos of the accident scene, photos of damage, x-rays and medical records, business and personal income records, diaries and journal entries, and the like. Except for certain privileged documents, practically any category of documents may be requested and obtained through his discovery device, so long as the documents requested are reasonably relevant to the issues in the case.
E. Defense medical examinations:
Persons making a claim for injuries may reasonably be subjected to a physical examination by a doctor of the defendants' choosing, in order to establish a position as to whether the injuries are related to the accident, whether the injuries claimed are real or exaggerated, and to obtain a prognosis.
3. Retaining Experts:
Experts are designated and are retained to offer opinions on matters relevant to the claim. Typically, experts in a personal injury claim might include doctors, accident reconstruction experts, economists, accountants, and vocational rehabilitation specialists. This list is not all-inclusive.
It is usually the attorney's role to locate, retain and communicate with the experts retained to help you present your claim. However, your own doctor or accountant or similar professional may sometimes be designated and used as an expert, where appropriate.
4. Alternative Dispute Resolution:
Even after suit has been filed, cases sometimes can be resolved through a means other than litigation. The most typical of these methods are arbitration and mediation.
Arbitration is a system where a decision on the case is made by an arbitrator. This process can be utilized either by agreement between the parties, or the court can order the parties to go to arbitration as a procedural step in the lawsuit.
When parties agree to arbitrate their dispute, they usually agree to be bound by the result, thus putting an end to the claim. Judicially ordered arbitration results, on the other hand, are usually not binding, and any party to such an arbitration procedure can request that the matter be placed back on the trial calendar simply by making a timely request to the court.
Mediation is a process where the parties agree to try to resolve their differences with the assistance of a trained professional, called the
mediator. Mediators are usually lawyers or retired judges who have special expertise in the field of personal injury claims. The mediator does not have the authority to render a decision, force a result on the parties, or to make orders.
5. Settlement conferences:
As the case draws near to trial., the court will require the parties to engage in settlement conferences, which are overseen by a
settlement conference judge. Although the judge cannot absolutely force the parties to settle their case, the judge usually uses the court's considerable influence to attempt to convince the parties to settle. Cases which are still pending usually are settled through this process.
6. Pre-trial motions:
A motion is a procedure where a party to a lawsuit applies to the court for a ruling on a particular issue. Motions are typically sought to allow the "moving party" to take certain action, or to have the court order the other side do something it has refused to do, or to ask that the court itself take certain action with regard to the case.
Trial offers the parties the last resort to resolve their case. Trial involves the use of testimony by the parties and their experts and other witnesses. Trial can be either to a jury or to the court directly. The process is costly and high risk, and more than ninety percent of all lawsuits, which are filed, are settled without trial.
HOW MUCH WILL IT COST ME TO BRING A CLAIM?
Costs will always be involved in bringing a claim. At the very least, you will need to obtain a copy of your relevant medical records, and will be charged a copying fee. If you need to pursue a lawsuit, the costs will rise dramatically. You will lose a measure of control over the costs, because they will be largely governed by the tactics of the other side. Depositions, filing fees, copying charges and the like can add up to a significant
amount. The costs and charges of experts frequently constitutes the greatest expense in litigation.
WHAT IS A MEDICAL LIEN?
A lien is a legal device for securing a money claim. In personal injury situations, liens usually arise as a result of a written agreement between the injured person and his or her health insurance carriers or providers. The claimant's attorney usually receives a lien on the file as well, in order to secure his or her right to receive a fee from the personal injury settlement or judgment proceeds.By placing an effective written lien on the file, these creditors of yours can receive payment or reimbursement directly form your monetary recovery.
Typical examples of liens are claims from health care insurers who have provided you with benefits related to treatment for your injuries from the subject accident. An insurance carrier's right to place a lien against your personal injury claim file is usually provided for by the health insurance policy itself. Thus, even though you have paid insurance premiums in order to purchase your health coverage benefits, the carrier can often assert a right to be reimbursed for medical payments it has made on your behalf. And if Medicare or Medical have paid for your treatment, the law gives these agencies a right of reimbursement from your financial recovery against the person responsible for your injuries.
If you do not have adequate health insurance, your health care providers may also require that you sign a lien, as a condition of continuing to provide treatment.
Liens can sometimes be successfully negotiated and reduced by your attorney, thus giving the client additional financial benefit from
the gross settlement.