|
How do I know whether I have a valid claim?
top
Unless you have a law degree or other legal training, you likely will not know
if your claim would stand up in court. There are, of course, exceptions. If a car rear-ends you while
you are stopped for a red light, it is probably safe to say the other driver was negligent. Or, if
a doctor mistakenly performs surgery on the wrong part of your body, it is certainly no stretch to
conclude the doctor committed malpractice. Most of the time, however, the best way to find out whether
your claim has merit is by consulting with an attorney. Why? Because an attorney with the right qualifications
– one who knows the relevant law, understands the elements of your claim, anticipates potential defenses,
and brings years of experience to the table – is best able to evaluate your claim and explain your
legal rights to you in understandable terms.
Should I even pursue my claim?
top
If you or a loved one suffer substantial injuries and damages through someone else’s negligent (or
intentional) conduct, the only way to receive fair and reasonable compensation is by pursuing a claim.
You should be aware, however, that the claims process is no fun. Even if you were completely fault-free,
the other side will view your claim with skepticism, if not hostility. Your prior medical history
will become an open book, and you will suffer other invasions of your privacy. Absent an early settlement,
your claim could take months if not years to resolve, all the while hanging over your head like a
dark cloud.
Do all these negatives mean you should not pursue your claim? Of course not. But like any important
decision, you should make it with your eyes wide open. At the initial consultation, an experienced
personal injury lawyer can describe the claims process in greater detail and address any concerns
you may have about pursuing a claim.
What is my claim worth?
top
Unfortunately, there is no Kelly Blue Book for personal injury claims. By its very nature, the process
of evaluating claims is highly subjective. This is so because the claimant’s damages usually include
intangible or noneconomic losses, which have no ready price tag. For example, in a wrongful death
claim, how do you put a monetary value on the loss of a life or its impact on the surviving members
of the family?
In short, evaluating personal injury claims is more art than science. It requires, among other things,
a thorough analysis of liability and damages, including the credibility of key witnesses, and a realistic
assessment of the risks and costs of going to trial. If a lawyer were to tell you your claim is worth
an exact amount of money, you should probably run away from him as fast as you can. Why? Because
no lawyer has a crystal ball allowing him to accurately predict what the trier of fact would award.
Instead, experienced personal injury lawyers (or seasoned insurance adjusters) can only offer their
best estimate – usually in terms of a range – as to the likely amount of an award. Ultimately, the
precise value of a given claim will be unknown until the time of settlement or the outcome at trial.
Will the insurance company treat me fairly?
top
Under Washington law, insurance companies must act in good faith and deal fairly with their insureds.
But as a general rule, these duties are not owed by the insurance company who insures the wrongdoer.
Does this mean claims representatives who contact you regarding your claim will not be professional
or courteous? Not at all. To point out the obvious, however, insurance companies are in business
to make a profit. The higher the payout on claims, the lower the profit. It is therefore foolish
to assume the wrongdoer’s insurance company (or its employees) will have your best interests at heart
– not when they would gladly pay you nothing if that were an option. You should expect to be viewed
as just another claim number, not an innocent victim.
Do I need a lawyer?
top
If you suffered a minor injury, you would probably give yourself first aid. But if you suffered a
serious or life-threatening injury, the only reasonable course would be to consult a competent physician.
The same is true about law. If you suffered a very modest injury as the result of someone else’s
negligence, you might be able to represent yourself and either sue the wrongdoer in small claim’s
court or negotiate a modest settlement. But if you instead have a claim involving substantial injuries
and damages, the only reasonable course would be to consult an experienced attorney. Why? Because
unless you have a law degree or other legal training, you would be in way over your head if you chose
to represent yourself.
Besides evaluating your claim, a lawyer – assuming one with the proper qualifications – provides
many other services. He will, among other things, thoroughly investigate your claim, including liability
and damages; hire appropriate experts if needed to prove your claim; use his best efforts to negotiate
a fair and reasonable settlement; and competently represent you at trial if negotiations fail. Moreover,
because the attorney will always be in the front line, handling any issues that arise over insurance,
medical expense payments or anything else relating to the claim or lawsuit, you can instead focus
on your health, family and everyday matters.
Can I afford a lawyer?
top
Hiring a lawyer is an expensive proposition if the lawyer charges by the hour for his services. For
at least three reasons, however, hiring a personal injury lawyer is different. First, most personal
injury lawyers charge no fee for an initial consultation. Second, they almost always represent their
clients under a “contingent fee” arrangement. This means the fee is an agreed upon percentage of
the recovery – so the lawyer is only compensated if the claim is successful. This is a “win-win”
situation because the client avoids budget-wrecking legal bills every month, and because the lawyer
– instead of being paid win, lose or draw – has an obvious incentive to maximize the recovery for
the client. Third, if dictated by the client’s finances, personal injury lawyers often advance the
claim or litigation costs as they are incurred. These costs can be substantial, especially in cases
requiring testimony from pricey expert witnesses. Although both payment options (hourly versus contingent)
should be fully discussed at the initial consultation, a contingent fee arrangement allows claimants
to pursue meritorious claims they would otherwise have to abandon because of cost.
When should I hire a lawyer?
top
If hiring a lawyer is the right decision, there is no time like the present. This obviously does
not mean, say, that a just-injured claimant should call a lawyer on a cell phone while en route to
the emergency room in an ambulance. On the other hand, there are several reasons why time is often
a factor, and sometimes of the essence. First of all, evidence usually dissipates over time, as memories
fade, skid marks disappear, or wounds heal. If undue delay occurs, the lawyer’s ability to thoroughly
investigate liability, or to fully document damages, may be compromised. Moreover, the sooner a lawyer
becomes involved, the sooner the claim will be resolved – and a form of closure will come for the
client. In King County Superior Court, for example, a trial date 18 months down the road is assigned
at the same time a lawsuit gets filed. Given this known delay, why not start the clock ticking earlier?
There is also the matter of the statute of limitations. Under Washington law, a claim is forever
time-barred if no lawsuit is filed within the applicable limitation period. Many experienced personal
injury lawyers will not even consider accepting a new case if the statute of limitations is about
to run. In short, if hiring a lawyer is the appropriate thing to do, claimants do not have the luxury
of postponing their selection indefinitely.
How should I select a lawyer?
top
Hiring a lawyer may sound daunting if you have never done it before. But as long as you follow some
simple guidelines, there is no reason to lose sleep in the course of making your selection.
First of all, do some preliminary homework. Since we live in an internet world, most reputable
lawyers have websites that allow you to research their background and qualifications (or to read
informative FAQs). Moreover, the quality of the website will illustrate how the lawyer approaches
the practice of law. Typos, or poorly written and/or disorganized content, on a website would not
bode well.
Second, make sure a prospective lawyer fits your particular needs. At minimum, the lawyer
should have significant experience and a solid reputation. One reliable indicator is the lawyer’s
rating from Martindale-Hubbell, a highly respected information resource for the legal profession
that rates a lawyer’s legal ability and ethical standards. (Less than 10 percent receive an AV rating,
which is Martindale-Hubbell’s highest.) You should also make sure the lawyer handles claims in the
relevant practice area. For the same reason you would not see an orthopedist for, say, an eye problem,
you would not hire a DUI lawyer if you have a personal injury claim involving substantial injuries
or damages.
Third, when you meet for an initial consultation, do not be afraid to ask any burning questions
you might have. Besides the obvious reason (i.e., to get the desired information), there is another
reason for doing so. To be an effective advocate, any lawyer must also be an effective communicator.
The manner in which a prospective lawyer answers your questions, or even just the way he listens
to you, will shed light on his communication skills. You should also be sensitive to whether the
lawyer appears to be giving you the straight scoop – or only tells you what he thinks you want to
hear.
Finally, do not automatically hire the first lawyer you meet. If you trust your instincts
and feel entirely comfortable with the lawyer, that is fine. But if something does not click or feel
right, you should probably expand your search to more candidates, or at least sleep on your decision.
If the first lawyer genuinely likes your case and wants to represent you, rest assured he will be
happy to hear from you again.
What will the lawyer initially do on
my behalf?
top
Right away, the lawyer will send a “letter of representation” to the wrongdoer’s liability insurer
(assuming there was prior contact between the insurer and the client). A similar letter will be sent
to any other insurance companies who are paying claim-related benefits (e.g., the client’s medical
insurer). From this point on, the hassle of dealing with the insurers and their claims representatives
will shift to the lawyer.
The lawyer will then begin his investigation. On the liability side, the investigation will depend
on the nature of the case. If, say, the claim arose from a traffic collision, the lawyer will obtain
the police report and interview witnesses, and, if warranted, hire an accident reconstruction expert.
In a medical malpractice case, the lawyer will start the time-consuming process of finding and hiring
appropriate experts to determine whether the standard of care was breached. Simultaneously, the lawyer
will also commence the damages investigation, the specifics of which will likewise hinge on the nature
of the case. At minimum, this usually requires obtaining copies of the client’s medical records to
document the nature and extent of injuries, and copies of medical bills, payroll records and/or tax
returns to document the economic losses.
How will I know what is happening with
my claim?
top
Personal injury lawyers, like others in the legal profession, owe an ethical duty
to keep clients reasonably informed about the status of a matter. The preferred practice? To send
the client “FYI” copies of all letters, pleadings and other documents the lawyer either sends to,
or receives from, the other side. That way, the client can stay reasonably abreast of the developments
as they occur. If the client still has a particular question, the client should not hesitate to pick
up the phone and call for clarification. More and more, email also is an efficient (and free) way
for clients and lawyers to communicate. The turnaround time should be relatively short, since lawyers
also have an ethical duty to promptly comply with reasonable requests for information.
How long will it take to
settle my claim?
top
Less than five percent of all civil cases go to trial. In light of this statistic,
the overwhelming likelihood is that a given claim will be resolved by settlement. As for the timing
of the settlement, this topic is best discussed with the lawyer, even as early as the initial consultation,
because so many factors and variables come into play. Nonetheless, a few general comments can be
made. First of all, in a personal injury claim not involving a death, it is usually premature to
even consider settlement until the client’s claim can be properly evaluated. In many cases, a claim
cannot be properly evaluated until the client’s treating doctor(s) can render a prognosis. How come?
Because if the doctor says the client has suffered a permanent injury, or an injury that will require
a specified time to heal, then damages for the client’s future pain and suffering must be
taken into account. Put differently, until not only the nature but also the extent of the
client’s injury is known, the lawyer cannot reasonably evaluate his client’s claim. As a consequence,
settlement efforts must sometimes be placed on hold while the client continues to receive treatment,
or awaits the outcome of the healing process. These considerations do not come into play in a wrongful
death claim, which can usually be evaluated more quickly.
Once the lawyer completes his evaluation, he will prepare a settlement demand, review it with the
client, and obtain the client’s authority to demand a specific amount. To allow room for negotiations,
the amount of the demand is always higher than the amount of the hoped-for settlement. The lawyer
will then serve the settlement demand on the other side, requesting a response within a specified
time frame.
The pace of the negotiations will vary from case to case. If both sides agree, the negotiations can
occur in the context of a formal mediation. Although professional mediators do not work for free,
their fees are usually split equally – and will be a relative bargain if the case settles. The mediation
option should be discussed by the client and lawyer at an appropriate time.
What happens
if I receive a low settlement offer?
top
Negotiations and poker have a lot in common. For one thing, you never know for
sure if the other side is bluffing (and vice versa). At some point, the client’s lawyer will be convinced
that the other side, whether it is the wrongdoer or his liability insurer, has made its final, top-dollar
offer. At this juncture, it is the client’s decision – and only the client’s decision – to
either accept or reject the offer. But if the lawyer is properly doing his job, he will fully explain
the risks and benefits of each option so the client can make an informed decision. This discussion
invariably involves some educated guesswork, since no lawyer possesses a crystal ball allowing him
to accurately predict the outcome if the case were to go to trial.
The final settlement offer may not match the client’s expectations. Though disappointing, this does
not mean the offer should be rejected. Why? Because if the offer is in the range of reason – that
is, the outcome at trial could be better but it also could be worse – it often makes sense for the
client to go with the “bird in the hand.” For at least two reasons, there is something to be said
about certainty. From an emotional point of view, claim closure is almost always a positive development
for the client. And from a fiscal point of view, even if the client were to obtain a higher award
at trial, the client’s net recovery could actually be lower because of the additional litigation
expenses.
The other side cannot be compelled to increase its settlement offer. The client, on the other hand,
cannot be forced to accept a settlement offer that is unreasonably low. And truth be known, a lowball
offer often means the decision to go to trial is that much easier to make. Given the small percentage
of cases that actually go to trial, however, there is usually a window period before trial when the
parties will revisit settlement.
When should a lawsuit be filed?
top
Some personal injury lawyers rarely file lawsuits on their clients’ behalf until
settlement talks have failed. In certain situations, this may be the best strategy. For example,
if the claim involves egregious facts – e.g., the drunk driver who runs the red light – and the damages
are clear-cut, the other side may want to cut its losses by settling early. Or, if the client’s damages
clearly exceed the wrongdoer’s liability insurance and the wrongdoer has no significant assets, filing
a lawsuit may serve no useful purpose if the insurer is willing to pay the policy limit.
More often than not, however, a lawsuit should be filed even if settlement has not been explored.
Commencing suit sends the message to the other side that you believe in the strength of your claim
and are not afraid to litigate it. It also starts the process known as “discovery,” which, by allowing
witnesses to be deposed and documents to be subpoenaed, in turn allows the client’s lawyer to investigate
liability in a way that could not be done informally. Another consideration: since some defendants
(or their liability insurers) will not negotiate in good faith until the eve of trial, a lawsuit
must be filed to obtain a trial date. Moreover, since litigation is fraught with delay – in some
Washington counties the plaintiff must wait as long as 18 months for a trial date – commencing a
lawsuit starts the clock ticking that much sooner.
Although the lawyer usually decides when to file a lawsuit, the client should at least be in the
loop. Ideally, the time frame for filing suit should be discussed, even if only generally, as early
as the initial consultation.
What happens after the lawsuit
is filed?
top
A lawsuit is started by filing a summons and complaint at the courthouse, and
by serving copies on the defendant. After the defendant files a response – usually an “answer” –
to the complaint, the parties commence “discovery.” This refers to the process used by the litigants
to investigate, or “discover,” the facts and/or documents possessed by either the opposing side or
nonparty witnesses. Broadly speaking, the purposes of discovery are to gather evidence that will
help you prove your claims at trial, and to identify the evidence that the other side intends to
use against you at trial. Since no two lawsuits are identical, the nature and amount of discovery
varies from case to case.
The first round of discovery ordinarily consists of written discovery requests like interrogatories
and requests for production of documents, which require the responding party to answer questions
in writing or to supply documents within the party’s possession or control. Preliminary in nature,
these requests usually delve into, among other things, the responding party’s background information,
the identity of known witnesses, and the factual basis of any and all legal contentions.
The next round of discovery usually consists of depositions. This is where the fact-finding process
gets more specific – and where tactics and strategy unquestionably come into play. At a deposition,
parties and/or witnesses are asked questions in the presence of a court reporter, who later prepares
a “transcript” of the proceeding. Although depositions are somewhat informal, the witness testifies
under oath as if he were testifying in court.
Depending on the type of case, discovery can be an expensive proposition. This is especially true
when the issues – e.g., the liability issues in a medical malpractice or product liability case –
rise or fall on testimony from pricey expert witnesses.
Will the lawsuit require
much of my time?
top
Although the lawyer (and his staff) will attend to the needs of the lawsuit, the
client is not just a spectator. Assuming the lawyer keeps the client properly informed by sending
copies of all correspondence and pleadings, the client should review them to stay reasonably current
on all significant developments. If the client has any questions, he should not hesitate to call
his lawyer for clarification.
In addition, the client must comply with his formal “discovery” obligations. For example, if the
other side serves interrogatories and/or requests for production, the client – with the lawyer’s
help – will need to prepare written answers and/or supply documents within his possession or control.
Once the draft responses are put into final form by the lawyer, the client will need to review them
for accuracy and completeness.
In all likelihood, the client’s deposition will occur at some point in time. At first, the prospect
of being interrogated by the defense attorney may sound intimidating. As long as the client knows
how to tell the truth, however, there is no reason to fear a deposition proceeding. Moreover, a competent
personal injury lawyer will spend with the client whatever time is needed to properly prepare the
client for the deposition. The complexity of the case and the client’s personality will partly determine
whether one, two or multiple sessions are required.
If the client has either not fully recovered from his injuries, or if a permanent injury is being
claimed, he or she also may have to submit to a so-called “independent medical examination.” This
refers to an examination by a doctor chosen by the defendant, which is allowable under our court
rules. The client should not worry about being “thrown to the wolves,” as the rules also allow a
representative to attend and audiotape the examination for the plaintiff. Though some plaintiff’s
lawyers do not avail themselves of this option, the better practice is to hire a nurse to attend
and monitor the examination.
In the grand scheme of things, a lawsuit will not impose excessive time demands on the client. But
when the client’s discovery obligations arise, cooperating with the lawyer is essential.
Will my case settle before trial?
top
Even if prior settlement efforts were unsuccessful, there is a statistically high
likelihood – more than 95 percent – that your case will settle prior to trial. And yes, settlements
“on the courthouse steps” really do occur. Rightly or wrongly, it sometimes happens that the other
side will not negotiate earnestly or in good faith until the eve of trial. (For one thing, the defense
may want to test the plaintiff’s resolve, hoping the plaintiff will get cold feet and settle at the
last minute on the defendant’s terms.) Once the sobering thought of putting one’s fate into the hands
of 12 licensed drivers (i.e., a jury) kicks in, however, the parties usually re-evaluate the case
more realistically – since mere posturing is no longer viable.
Is going to trial expensive?
top
There is no such thing as a “cheap” trial – some are just more expensive than
others. In most cases, the fees of pricey expert witnesses are the main “big ticket” item that drive
up the cost. For example, even if treating physicians are willing to testify at trial (and many are
not), they will expect to be reasonably compensated for their time away from the office. Consulting
experts – that is, experts hired solely for purposes of the lawsuit – can also cost an arm and a
leg, especially if they live out-of-state and charge for their travel time. Depending on the type
of case and the amount in controversy, there also may be significant expenses for, among other things,
jury consultants, oversized exhibits (e.g., medical illustrations), or technical support (e.g., for
PowerPoint presentations).
Since going to trial is usually an expensive proposition, the client should seriously consider a
settlement offer that is in the range of reason, even if it is lower than what the client wanted.
Why? Because even assuming the client obtained a higher award at trial, the client’s net recovery
could actually be lower because of the additional expenses.
What will happen if my case goes to trial?
top
The client invariably attends the trial from start to finish. Its length can be
affected by many factors, including the complexity of the case, the number of witnesses, the style
and personality of the lawyers, or the work habits and/or temperament of the trial judge. Speaking
generally, the trial will consist of seven distinct phases: pretrial motions, jury selection, opening
statements, the plaintiff’s evidence, the defendant’s evidence, jury instructions, and closing argument.
Although it happens only rarely, the parties can still reach a settlement even after the jury begins
its deliberations.
What are my options
if I am unhappy with the outcome of the trial?
top
There are always winners and losers when a case goes to trial. From the plaintiff’s
perspective, the worst kind of loss is a defense verdict. At the same time, it can be equally painful
to win the battle over liability, but still lose the battle over damages – for example, where the
jury awards less than the amount of the defendant’s last settlement offer.
To have grounds for an appeal, however, the losing party must show that some kind of “legal error”
or misconduct occurred during trial. This can take various forms and involve either opposing counsel
(e.g., improper closing argument), the jury (e.g., withholding facts during jury selection), or the
trial judge (e.g., allowing irrelevant evidence). Even then, the losing party must convince the appellate
court that the error or misconduct was “prejudicial” – i.e., that the outcome might have been different
if the error or misconduct had not occurred.
Statistically, about two-thirds of all appeals are unsuccessful. Though “it’s never over until it’s
over,” a trial should be viewed with finality, as if it were the last stage of a long process. Hoping
for and expecting a favorable outcome are definitely not the same things, which the client should
always remember when evaluating the defendant’s settlement offer.
| © 2005 - 2011 Law Office of Andrew Bergh.
All rights reserved. |
|
|
