What Does a Personal Injury Lawyer Do Anyway?
Published to: 000113, 000115, 000116, 000117, A Small Town Lawyer's Perspective, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on January 18, 2011 9:53 pm
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In a world of instant communication, it is amazing the misconceptions people have regarding this question. As I have said, divorce clients have usually been building to a crisis and have discussed their problems with friends and family. Personal injury clients have, often literally, been blind-sided.
When the injured client or her family calls, I like to do a rather detailed interview over the telephone, at least 30 minutes. In that time, we must learn the following:
a. What type of claim, auto accident, premises fall, medical malpractice, defective product, or deliberate intent (work place injury)?
b. Is fault clear, contested, or uncertain?
c. What insurance policies are in place, auto liability, premises liability, underinsured coverage, uninsured coverage, property damage, medical insurance, “med pay”, “personal umbrella”, coverage of other family members, etc.? This can be a very complicated answer. But, getting an overview is essential. If there is no available insurance coverage, where will any recovery come from? Identifying all coverages is often the key to the case.
d. What are the injuries identified so far?
e. What are the approximate medical expenses?
f. Was there outpatient or inpatient care, or both?
g. Was there a police investigation, were photographs taken, is there an accident reconstruction report, and was news media on scene?
h. What is the date of the injury? This can be a huge question. I am prompted to write this today partly because a caller just advised me that it has been 2 years and 9 months since the collision and 2 years and six months since her 18th birthday! Unless more facts arise, that person is now barred from asserting their claim because of West Virginia’s two year statute of limitations (The saddest words the Court can say, “The Statute Ran Yesterday.”) The Statute can be overcome, but it is difficult. Assuming the answers to these questions show a potentially viable claim, this is when a competent personal injury lawyer gets to work, usually with a face to face meeting, at the office or in the hospital.
FIRST, the lawyer must reassure the client or family member by discussing his credentials and experience, assuring the person that most auto and some other personal injury claims do not require the filing of suit. (Sadly, medical malpractice, premises liability, and workplace injury (deliberate intent) claims do require the filing of suit.) Injured persons have been traumatized, physically and emotionally, and they need firm reassurance.
SECOND, most injury victims are concerned about appearing to be greedy or overreaching. I assure them that I have not had a client, by the time they have been through the process, believe he/she has been overly compensated by a generous insurance adjustor or jury. I probe their background, and share mine (United Methodist Church, Cub Scouts, 4-H, U.S. Air Force) and assure them that my values of right and wrong are very similar to theirs, regardless what they may have heard about injury lawyers.
THIRD, I describe for them what elements of damages the WV Courts will recognize.
These include reasonable medical expenses (past and future), lost wages, pain and suffering, mental anguish, temporary and permanent impairment, disfigurement, and loss of enjoyment of life. Spouses often have a claim for loss of services (consortium), which can include intimacy or day to day services that the spouse performed for the other. If the spouse or family member observed the incident, she may have a claim for emotional injury. A former client was witness to a horrific fatal injury to her pedestrian husband who had his leg severed when a driver lost control of her car.
FOURTH, we of course have a form fee agreement we ask the client to read and sign. Clear fault “limits” cases can have contingent fees as low as 10%, but typically the percentage is 20% if settled before suit and liability is not contested, 25% if liability is disputed but settled before suit is filed, and 33 1/3% if suit has to be filed. Most medical malpractice cases are 40%, and other complex cases, such as industrial accidents, can be 35% – 40%.
FIFTH, the claims adjustor must be notified of the claim and the representation in writing and must acknowledge that representation in writing and in a timely manner.
SIXTH, the formal investigation begins, visiting and photographing the accident scene, writing for the police collision report, ordering medical records, and interviewing of witnesses.
SEVENTH, more detail is acquired. We ask the client and spouse to maintain diaries, and we have a form letter we write to “lay witnesses”, people who knew the victim before and since the injuries. What a surprise it is to some of our more seriously injured clients, who thought they were keeping their suffering to themselves, and were trying to, to learn that their family, friends and co-workers have noticed a dramatic change in their demeanor and behavior. Ten to twenty of such letters are “worth their weight in gold” in convincing an adjustor or opposing counsel at mediation that they do not want this person’s story heard by a jury.
EIGHTH, when the client reaches MMI, maximum medical improvement, a “demand package” and cover letter are prepared and submitted. Attachments include a narrative report from the treating doctor, and key specialists, the collision report, photos of scene and car, accident reconstruction report if one was obtained, lost wage statement, lay witness letters, and the claimant’s diary. Our demand amounts are designed to elicit a constructive response and an eventual compromise for a fair settlement amount.
NINTH, the moment it appears there may not be enough liability insurance to reimburse the client fully, the attorney must send a notice of potential underinsured motorist (UIM) claim to the client’s own insurance carrier. Settlement with the tortfeasor may not be made without the UIM carrier’s permission. Of course, if the other side had no insurance, an uninsured (UM) claim must be filed with the client’s own carrier.
TENTH, in major cases, I often suggest pre-litigation mediation. I have settled several cases this way, avoiding the risk and expense of litigation.
ELEVENTH, space does not permit a detailed discussion of the litigation process. Most auto claims do not require the suit to be filed. Once suit is pending, the discovery process must play out, with each side demanding all the evidence in possession of the other side. Questions called interrogatories require written answers, under oath. Requests for production of documents and admissions, and depositions taken before a court reporter, are also used.
TWELTH, most Courts require the litigants to participate in mediation. West Virginia has many good mediators, and most cases settle without trial.
THIRTEENTH, 13 is an appropriate number, because if all efforts to settle with the adjustor, or in pre-litigation mediation, or mediation before trial fail, the parties must “roll the dice” before a jury, whose decision is usually sustained by the judge. It is a ritualized form of combat, our “adversary system”. Most people at that stage hope they have a skilled and experienced trial advocate. At that point, the lawyers who “cut up” on T.V. in order to draw customers may be less than credible with the jurors who most certainly have watched them.
FOURTEENTH, the truth be told, the T.V. lawyers who portray insurance adjustors as baboons to be intimidated into submission do their clients a disservice, because some of the very best recoveries occur because the lawyer treated those field adjustors with respect and professionalism, helping them with full documentation to convince their superiors to part with some of the carrier’s precious cash rather than risk an even greater award by the jury.
FINALLY, the best lawyers focus on the people they represent, helping them to pick up the pieces, focus on the future, protect their family, and come out of the process as whole and healthy as possible. The heartfelt letters we often receive show that caring about the client, as well as the recovery, can make a great big difference in the lives of the people we represent.
This post was written by Burton Hunter