Personal Injury FAQ
EXPERIENCED SAN DIEGO COUNTY – EAST SAN DIEGO COUNTY PERSONAL INJURY LAWYER ANSWERS YOUR QUESTIONS:
Can I trust the insurance company for the negligent driver to deal fairly with me in the settlement of my personal injury claim without using an attorney?
Answer: No. The insurance company expects its insurance “adjusters” to pay as little as possible to get the injured party to settle the claim and sign a release. Once the release is signed (absent fraud), the injured party has settled the claim for all time (even if it is later discovered the injured party’s injuries are far more serious that originally believed). Insurance companies are in business to make money. To do this the company expects to collect more in premium payments than it pays in claims. Insurance companies, and insurance adjusters, do not have your specific interests in mind when an offer to settle is extended. Most insurance adjusters use computer software to place a value on your claim, particularly in cases the insurance industry labels as “soft-tissue minor impact” (MIST) auto accidents.
What is my personal injury claim worth?
Answer: Any lawyer who tells you what your claim is worth (or may be worth) when you first come to see the lawyer it not being forthright. A personal injury claim cannot be valued until the liability, injury causation, and damage issues are fully investigated. This takes time and typically cannot be completed until a lawsuit is filed and the attorney has consulted expert witnesses for their opinions. In all instances, your damages cannot be ascertained until your medical treatment is completed (or you have reached a point of maximum benefit from treatment) and your doctor gives you a medical prognosis (what residual or permanent disabilities you may have and what future care you may need).
What is a contingency fee?
Answer: A contingency fee means the attorney handling your case will not charge you for his legal services (or costs advanced by the attorney) unless the attorney is able to make a financial recovery for you on your personal injury claim. Most personal injury cases are handled on a pure contingency fee basis. The percentage charged for a contingency fee is negotiable. In many cases, the attorney will advance costs on behalf of the client but those costs will have to be repaid when a recovery is made (and typically only if a recovery is made). Make sure you review the attorney-client fee agreement in detail before signing it.
Will I be required to file a lawsuit before I can recover money for my personal injuries?
Answer: No. Whether the circumstances of your particular personal injury case warrant the significant costs associated with a lawsuit (and trial in Superior Court) must be analyzed by a competent and experienced attorney. A lawsuit can be settled, and many are settled, before filing a lawsuit. Moreover, the great majority of personal injury cases are settled after filing a lawsuit but before a jury trial. Most personal injury cases involving injuries to the head, spine and nervous system, that do not resolve within 12 months, and will require future medical treatment, should be considered for prosecution through the filing of a lawsuit. In many cases it is clear the injuries are going to result in long term medical care, loss of significant income, and permanent physical disability. Filing a lawsuit in these cases is almost always the right course of action (assuming the defendant is financially viable and/or is adequately insured).
Will I have any financial risk in a lawsuit if I lose the case in court?
Answer: Possibly. If you lose your personal injury lawsuit at trial (meaning the defendant is not responsible for causing the injury) you will be required to pay the costs (but not the attorney fees) incurred by the defendant. This rarely happens because no competent attorney is going to file a personal injury lawsuit if the defendants conduct was not a “substantial factor” in causing the event that prompted the injury. Sometimes, even if you win in court, because the amount awarded by the jury is less than what the defendant offered to settle the claim, you may have to pay the defendant’s expert witness fees and litigation costs. This doesn’t happen often, but it can happen. Filing a lawsuit does involve financial risks for the plaintiff and your attorney must disclose these risks to you.
I already have a lawyer, can I change attorneys?
Answer: Yes. The client hires the attorney and can terminate the relationship with or without cause. Nevertheless, for many reasons, you don’t want to change lawyers during the handling of your case, particularly once a lawsuit is filed. Most contingency fee agreements provide that if you terminate your lawyer you will be responsible for the original lawyer’s time already expended in the case at the attorneys hourly rate plus the return of costs advanced. The best advice is to find an experienced attorney as soon as possible after the accident causing the personal injuries.
What should I do if I am injured in an auto accident or other incident?
- Obtain immediate medical assistance.
- Hire an experienced personal injury lawyer as soon as possible.
- Write a detailed summary of all facts surrounding the accident for your lawyer.
- Do not give representatives of insurance companies or adjusters written statements or tape-recorded statements when asked to do so on the telephone.
- Obtain a doctor’s note for all time taken off of work as a result of your accident, even if you are self-employed.
- Save all physical evidence, and mark them with some type of identification tag. This may mean the shoes involved in a trip and fall accident, the receipt for products purchased at a store where you fell, or material or foreign objects which caused a fall.
- Obtain and save the names of all witnesses and persons involved in an accident. Be sure to get the telephone number and address of the witnesses.
- Take photos of all damages. This means damages to any motor vehicle, motorcycle, etc. Also take photos of all visible injuries. Be sure to develop these pictures immediately. If they do not come out well, retake the photographs before the physical injuries have healed. If a dangerous condition caused a fall, take pictures of the dangerous condition before it is changed or repaired.
- Do not sign anything without the approval of your lawyer.
- Don’t sign medical release authorizations sent to you by the insurance company.
- Avoid gaps of time between medical treatments. Long periods of time between medical appointments is used by the defense to argue that the later treatment is not related to the accident.
- Give each doctor you see an accurate history of how you were injured and what parts of your body sustained injury.