Years ago, I wrote a blog regarding how to settle your own personal injury case. To this day, that blog is one of the most widely read blogs on our website, despite the fact that it was written so long ago. The obvious reason is that many people would love to save the money they will have to spend on an attorney, which is usually 33 and 1/3 of their gross settlement, sometimes 40%. So, I wanted to follow the previous blog up with this one, which answers the question, “Should I negotiate my own personal injury case?” The answer to that question is an emphatic, “NO!”
There is an old saying in the legal profession, “A lawyer who represents himself has a fool for a client.” There is a very good reason for that saying, as I’ll describe below. Unless you have experience negotiating personal injury cases, it’s much smarter to hire a professional who knows the who, what, when, where, why, and how to maximize the settlement value.
Who Is Liable In A Personal Injury Case?
First, let’s talk about the, “Who?”
Experienced personal injury lawyers know where to find the money. Sometimes, the most obvious defendants don’t have assets or insurance to cover the loss, but there are other defendants who do.
For instance, if you get injured in a car crash due to the negligence of someone else, not only is the driver of the vehicle liable to you for your damages, but also the owner of the vehicle. If there is a co-signer on the vehicle, the co-signer is probably also liable. Moreover, if the defendant driver was running an errand for an employer or someone else, the business or person for whom they were driving may also be liable.
Not only that, you may have uninsured motorist coverage on your own vehicle that would step in the shoes of any potential defendant who had inadequate insurance or no insurance at all. Even better, the uninsured motorist coverage of anyone you live with may also cover your loss, as well as the uninsured motorist coverage of the vehicle you were riding in, if you were riding in someone else’s vehicle. Many accidents are also caused or contributed to by visual obstructions in the roadway, defective tires, or defective airbags.
There are numerous other potential defendants for any single crash, and if you don’t identify all of them, you will probably leave money on the table.
What Damages Are You Entitled To?
Next, let’s talk about the, “What?”
To maximize the value of a case, you have to know what damages you are entitled to. In a car crash or car accident case, if you can prove you have a permanent injury, you are entitled to not only compensation for property damage, medical bills, mileage going back and forth to doctors, reasonable rental car expenses, lost wages, and lost income capacity, but also for pain, suffering, inconvenience, mental anguish, and lost capacity for the enjoyment of life.
Not only that, you are entitled to compensation for any medical bills you are more likely than not going to incur in the future as a result of the crash. Future medical bills is a huge element of these claims that often gets overlooked by rookie lawyers and by people negotiating their own settlements.
When it comes to determining the value of pain, suffering, inconvenience, and lost capacity for the enjoyment of life, it takes an experienced attorney to know that value. Determining the value of a case is similar to determining the value of a house. The value of a house is determined by comparing it to other houses in the same neighborhood with the same number of bedrooms and similar square footage. Likewise, a good attorney who has settled hundreds of personal injury cases knows how to compare your case to other cases, and also has the ability to do jury verdict research to get a good idea of the potential outcomes in case of a jury trial.
That’s the best way to know the value of a case. I’ve had clients call me who severely undervalued their own case and reached a settlement with the insurance carrier, then wanted to go back on the settlement. Unfortunately, the ink had dried and it was too late.
I have also had potential clients call me who demanded from the insurance carrier ten times what their case was worth, and they were wondering why they were unable to negotiate a settlement on their own claim. By that time, however, there had been many conversations with the carrier that the carrier could use against the plaintiff and which may have damaged the value of the case.
When Should I Negotiate My Settlement?
With regards to the question of, “When?” one of the problems with negotiating your own settlement is about timing.
Some settlements can be negotiated quickly, if you know which buttons to push, such as sending what we call a “quick demand,” or filing a Notice of Civil Remedy in an uninsured motorist claim. However, most settlements should not be negotiated until you have the evidence to support the full value of your claim.
Non-lawyers often think they can just call the adjuster and tell him/her about their pain and suffering and the adjuster will send them a big check. That’s not how it works. Insurance carriers base their settlement values on evidence. Unless and until they have evidence to justify paying the full value of the claim, they will try to get away with a fire sale.
You need evidence establishing liability of the defendant, evidence establishing the full value of your damages, and evidence establishing that it was the defendant’s negligence that caused your damages. All three of these elements are essential to proving the full value of the case. If one element is weak, the case is weak, and you won’t get the full value.
With regards to establishing damages, it’s important to wait until the plaintiff has reached maximum medical improvement, which is when their doctor says they won’t get better with more medical treatment, before attempting to settle the case. The usual protocol is to wait until the doctor releases you and get a final report from the doctor which establishes whether you have a permanent injury, the degree of permanency in the form of a permanent impairment rating, and the type of medical treatment you will need for the rest of your life.
This final report should be sent to the insurance carrier along with all of your medical records, pre-crash and post-crash, to initiate settlement negotiations, but it should not be done until the doctor can give valid opinions, which is after the treatment program has ended. Non-lawyers often try to negotiate a settlement before finishing their medical treatment, and they become frustrated because the carrier wants to pay so little.
How To Pursue The Maximum Case Value?
Now, let’s talk about the question of, “How?”
Experienced trial lawyers understand that case values are maximized by providing evidence the insurance carrier cannot ignore. Evidence comes in many forms, but when it comes to the most important elements of the case, it usually comes in the form of expert opinions.
Non-lawyers who attempt to negotiate their own cases often just expect the insurance carrier to believe them or to use common sense. It’s amazing to me how many insurance carriers actually believe most plaintiffs are frauds and that anything they say is suspicious. Not only that, it’s amazing how many insurance adjusters will go out of their way to argue aspects of a case that are blatantly obvious to normal people, but the adjusters are looking at the case from the perspective of how they can save the insurance company money.
Until we provide expert opinions to refute the adjuster’s ridiculous defenses, the case value remains low in the eyes of the adjuster. Often, it’s not the adjuster we are dealing with who raises the issues that need to be addressed by an expert, but it’s their supervisor who has to approve the writing of the check to settle the cases. When we can arm the adjuster with expert opinions supporting our claims, the supervising adjuster often relents and puts an appropriate amount of money on the case.
One of the most important opinions we offer insurance carriers to get full value of the case is an opinion regarding future medical treatment. It’s not enough to just use the opinion of the treating doctor in many cases. We also need the opinion of a vocational rehabilitation expert and an economist to calculate the actual damages and reduce the amount of damages to present value, which is required by law. Experienced trial lawyers know where to find these experts and know which experts will be most productive in increasing the value of the case.
Why Do I Need A Personal Injury Lawyer?
The last question to address is, “Why?”
Why do insurance carriers pay more money to plaintiffs who have lawyers? The simple and most obvious answer is because lawyers have the power to file a lawsuit and take the defendant to court if the insurance carrier doesn’t treat the plaintiff fairly. The only leverage a plaintiff has is the power to take a case to court.
Insurance carriers know that non-lawyers are highly unlikely to go to court on their own, so they think they can take advantage of the situation by offering much less money than the case is worth. It’s important to remember that insurance carriers are not paying claims out of the kindness of their hearts. They settle claims for one reason and one reason only – because they are afraid if they don’t settle the claim it will cost them more money defending the case in court and they will have to eventually pay a judgment anyway. The insurance carriers also know which lawyers and law firms take cases to court, and which don’t, and they pay more to the lawyers who are willing and able to try a case. That’s leverage.
All that being said, there are numerous other reasons why you shouldn’t attempt to negotiate your own settlement. At Fasig | Brooks, we are happy to talk to you about your options. The first call is free and you have no obligation to hire us, but it would be wise to discuss before attempting to negotiate on your own behalf. We have seen too many clients call us for representation after they had already made mistakes that decreased the value of their cases. Let us help you make the right decision for your case.
