Ask Google whether you should hire an injury lawyer and you will find an abundance of results from self-professed experts explaining why they would never give up one third (or more) of their settlement to a lawyer and that you should not either. These statements almost invariably assume the amounts offered by an insurance company would be the same if you handled your own negotiations. Also missing from these opinions are any description of the comprehensive and detailed services that a skilled personal attorney can provide. This article explains what a personal injury attorney does to better understand that skilled attorneys do not simply expect payment of one-third of your gross recovery without justification.
The ultimate goal of every personal injury lawyer should be to maximize damages that are paid to a client. Arriving at the ultimate goal, however, is easier said than done.
After an accident occurs, your first steps are: (1) protecting your physical safety; (2) calling 9-1-1; (3) collecting evidence from the scene including exchanging contact information; and (4) providing notice to your insurance company that an accident has occurred. Similarly, after an accident occurs, the other party or parties to an accident will put their own insurance companies on notice that an accident has occurred. Soon thereafter, claim representatives from the other parties’ insurers will begin contacting you to elicit information that minimizes your claim. These claim representatives are trained to get admissions from you that your injuries are not severe or that the accident may not be your fault. Many people do not realize these seemingly friendly folks are working against their interests. However, once you put those insurance companies on notice that you plan to hire an attorney or that you already have, they will start beginning to gather information from the attorney, not the client. In this way, personal injury attorneys control the flow of information to insurance companies to keep you from inadvertently undermining the strength of your own claims.
At some point after an accident, depending on the severity of your injuries, you may visit the emergency room, urgent care, or even your family physician. Once you start visiting medical providers, the rules regarding your insurance claim and legal responsibilities change. Submitting claims to your own insurance providers, whether personal injury protection (“PIP”) or health insurance, for actions that are the fault of others, triggers legal obligations between you and insurers that most people simply are not familiar with. Once your own insurance begins covering claims on your behalf, it “steps into your shoes” for purposes of recovering for these claims, a legal right known as subrogation. A personal injury attorney understands and tracks payment and subrogation obligations and handles them in a way that maximizes the funds that go into your pocket at the end of the day.
Personal injury attorneys provide notice to medical providers and insurance companies that they are handling claim-related business for their client, which stops medical providers and insurance carriers from seeking immediate repayment—or under certain circumstances from seeking repayment at all. Processing medical bills and subrogation demands is an administrative burden. A personal injury lawyer takes the administrative burden off your plate so you can focus on recovery.
Medical treatment following a serious accident can be a lengthy process. Following an emergency room visit, ER physicians often encourage you to visit your primary care physician in two to four weeks. Your primary care physician may then refer you to a course of physical therapy which lasts six weeks or more. Some people prefer other treatments such as chiropractic care, massage, or acupuncture. Following this course of treatment—even for non-complex injuries that resolve relatively quickly—can last many months. Accidents with broken bones or surgical intervention can require treatment that lasts even longer. Of course, following catastrophic accidents, a person may never return to their pre-accident condition. A personal injury attorney collects all the documentation from these treatments—medical bills and records—so that they can be used to demand compensation from insurance carriers and defendants or used as evidence in a lawsuit.
At a certain point in your treatment, the appropriate monetary compensation range for your claim will become clear to a skilled personal injury attorney. Where injuries are severe and available insurance is limited, a skilled attorney may make this determination shortly after your accident occurs and demand payment from insurance carriers at that time. In cases where injuries are insidious or larger insurance policies or corporate defendants are implicated, your personal injury lawyer may wait months or years before making a demand or filing a lawsuit. Regardless of the timeframe in which it occurs, a personal injury attorney will justify the damages they are seeking from an insurance company or defendant with a demand or lawsuit that highlights the strongest elements of your claim. A personal injury attorney will make an expert determination of the value of your individual claim and prepare a demand package seeking all the damages an insurance company or defendant should pay you for your loss—with evidentiary support.
Perhaps the most misunderstood element of legal representation in personal injury cases occurs at this stage. Claim representatives take advantage of unrepresented parties’ lack of knowledge and familiarity with the process. Even the savviest unrepresented claimants often find the offers they receive from insurance carriers are insufficient—just hundreds or a couple thousand dollars. One common tactic is to rely upon a claimant’s lack of knowledge regarding the various coverage under a policy (e.g. property damage liability vs. bodily injury liability) and offer one combined settlement figure that is hardly enough to fix your car and nowhere near enough to adequately compensate you for your injuries. If an unrepresented claimant accepts a settlement that does not cover the full cost of their medical bills, they may end up with obligations to pay back their health insurance or PIP insurance carrier but not have enough in settlement funds to do so. When negotiations occur between an insurance company and a personal injury attorney, the starting point for insurance company offers is typically significantly higher than when an individual attempts negotiation on their own. I have personally litigated multiple cases where a defendant offered under $10,000 (or nothing) to a client before my involvement, only to pay more than $1 million by the time I am done with the case. In many cases, a personal injury attorney “pays for themselves” by virtue in this significant bump from unreasonable to reasonable offers during negotiations. Part of this benefit comes from the insurance companies’ knowledge that if they fail to negotiate in good faith, a personal injury attorney will make them pay with a lawsuit. A personal injury attorney levels the playing field for negotiations to ensure that the offers you receive are fair and that you have recourse (filing a lawsuit) if they are not.
In most cases, even if a lawsuit is filed, negotiations do not end. Courts actively encourage parties to continue to engage in negotiations to reduce the burdens of jury trials on the court system. During the negotiation process, a personal injury lawyer will convey these offers to you, give informed yet honest, privileged assessments regarding their quality, and recommend accepting or continuing litigation. Under Washington law, the ultimate choice whether to accept or reject a settlement offer is the client’s. However, an attorney can provide valuable insight about whether better offers are likely to be forthcoming and how the offer compares to the typical range of similar lawsuits that go to verdict in the same or similar courts. A personal injury attorney can also estimate the added costs of taking a case through verdict and advise whether the likely increase in offer value or verdict amount will be enough to overcome the added costs of litigation. Some personal injury attorneys also provide insights about likelihood of appeals and the costs and time associated with them. The attorney-client relationship ensures that an attorney gives the client honest, forthright advice designed to put the client’s interest first. A personal injury attorney will give you their best advice about whether to accept a settlement offer or to continue to pursue litigation.
If a lawsuit is necessary in your individual case, the best personal injury attorneys are expert litigators. Litigation is a complicated process with many detailed rules. Years of practice are typically necessary for litigation competence. Many practicing attorneys never achieve litigation expertise. Litigation also takes time. In Washington, most cases will not proceed to trial after a lawsuit if filed for at least one year. During this time, good attorneys make sure your legal rights are protected from insurance attorneys that will attempt to dispose of portions of your claim, while simultaneously supporting your case for its ultimate presentation to a jury. Litigation is an involved, labor-intensive process. It requires formal documents to commence suit and support claims. Written discovery (interrogatories and requests for production of documents) and depositions (oral examinations under oath) can drastically change the case you will ultimately present to a jury. Motion practice can mean submitting lengthy documents and substantial evidence to the court for determination of issues prior to trial. In addition, personal injury clams require expert testimony regarding causation of injuries and often to demonstrate proof of liability. Personal injury attorneys will hire these experts and pay their bills while your lawsuit is pending. A personal injury attorney handles your pretrial lawsuit including hiring expert witnesses in a manner that maximizes your settlement or verdict.
Finally, if the parties truly cannot agree about your case and a trial is necessary, a personal injury attorney puts on a lengthy presentation of your case to judge and jury. Trials typically last several days to several weeks. Washington has rules that allow even unrepresented parties to proceed to trial in their cases. However, attorneys that frequently litigate often see these pro se (unrepresented) parties making mistakes that seriously harm their cases. Defense attorneys will take advantage of knowledge gaps in legal procedure to benefit their clients and harm you. If you case needs to be tried before a judge or jury, a personal injury attorney is often the only way to get a favorable outcome.
Once your case concludes and a check is issued for settlement or to satisfy a judgment, a personal injury attorney negotiates again on your behalf—this time with the hospitals and insurance companies that claim a portion of your recovery through subrogation. There are detailed rules that govern how much injured parties are required to pay back based upon the individual facts of your case. A personal injury attorney utilizes subrogation rules to maximize the amount of money that goes into your pocket.
As described herein, a personal injury may spend dozens, or even hundreds of hours on your case. To be clear, not every accident requires an attorney. If you are in an accident and there are no injuries or medical treatment, you probably do not need a personal injury attorney. Or if you receive an offer of policy limits prior to attorney involvement and you are confident there are no subrogation issues, you may not need an attorney. But if you are injured in an accident due to the fault of someone else, hiring the right attorney could change your life.
