How to Settle a Car Accident Claim Without a Lawyer
A Free Guide for Handling Auto Accident Claims
I'll start off by saying that while I've written this guide with Texans in mind, most of it is applicable to people in EVERY STATE. So if you're reading this, I sincerely hope you find it helpful and that it answers at least some of your questions.
If you are like most people, this is the first time you have been in an accident and you aren't sure exactly what to do. You may be getting calls from the insurance company representatives, wanting to ask, “just a few questions.” The insurance company may be pestering you to sign their forms “so we can get the records and handle this for you.” They may even have already offered you money to settle your claim.
Perhaps you've started your search for an attorney but found that most law firm advertising doesn’t give you any useful information at all about what to do if your case is a minor accident with no injuries. All the ads say same thing. “Hire Me! We don’t charge a fee unless we get you money!”, but what they fail to disclose is that if your case doesn't involve serious damages or injuries, most attorneys are not interested in taking your case.
And you can't blame them; almost all accident and injury attorneys work on a contingency fee. They do all the work to research and litigate your case on their own dime and only get paid once the case settles or a judgement is reached. If the case is only going to net them a few thousand dollars, it simply isn't worth the time involved.
This means all those ads showing fistfuls of cash, gory accident scenes or platitudes like “We Care for You” or “We Are Aggressive” are 100% meaningless unless your case involves 10's of thousands of dollars in damages or injuries.
More on that, but first ...
This Guide Is NOT Intended to be Legal Advice!
The Texas State Bar requires that I inform you that what is in this guide is not legal advice. I am not your lawyer until you and I enter a written agreement for me to be your lawyer. I know the arguments the insurance company will make – and so should you – even before you file your claim. I can offer suggestions and identify traps, but please do not construe anything in this guide to be legal advice about your case, as each case is different and an attorney can only give you quality legal advice when they understand the facts involved in your case.
What Are Your Options for Settling a Minor Car Accident Claim?
You've been in a car wreck and you're trying to handle the negotiations with the insurance company yourself. So what are your options? Well, the first option is to just accept what the insurance companies are offering - I NEVER recommend that. They are going to offer the lowest amount that they think you are willing to accept.
The next option is the try and find an attorney that will work on your case for a flat fee or on a retainer. This is feasible in some scenarios but you also run the risk of owing an attorney more than what will receive from the insurance company. You also have to wonder about the experience and effectiveness of an attorney willing to accept a case on such terms.
The last option is for you to learn how to negotiate a settlement without a lawyer. If you're interested in going that route, then I wrote this guide for you. With it, you can educate yourself on the negotiation and settlement process before you talk to an insurance adjuster. (Hopefully, you haven’t signed any forms yet!)
What Type of Accident Cases Should You NOT Try to Settle on Your Own?
Before we go any further, we need to discuss what types of auto accident cases you should not attempt to settle without help from a lawyer. The reasoning for each varies some but the common theme is that you will almost certainly receive more money if you have an experienced attorney handling the case.
18-Wheeler or Semi-Truck Accidents
Accidents involving big trucks are often times complex. When involved in collisions, the sheer size of these vehicles usually results in extensive property damage. The potential for serious personal injury is greater as well. There are volumes of federal and state regulations that govern the maintenance and operation of these vehicles as well. It would be impossible for the average person to know all these laws and how they may impact their claim.
Aside from these concerns, big rig accidents usually have multiple parties that may have responsibility. The truck driver may be an independent or work for a company. Likewise, he may own his truck or just be driving for the tractor trailer company. The trailer being hauled could be owned by a separate entity as well - meaning there may be three parties sharing responsibility and three different insurance companies to deal with.
Additionally, companies involved in the trucking industry all carry very large insurance policies - but you can be assured they won't offer YOU anything close to what they will if you have an experienced attorney threatening to take them to court. Due to the amount of damages, complexity of laws surrounding the trucking industry, and the number of parties that could be responsible - it's always recommended to hire an experienced truck accident lawyer if you've been involved in a wreck involved a big truck.
Accidents involving motorcycles are another area where it is best to have an experienced attorney handling your case. First of all, getting into a wreck on a bike can lead to any number of serious injuries - many of which may not be immediately apparent! The potential for a biker to develop severe neurological or spinal issues weeks AFTER the accident makes it extremely risky to accept a settlement without first having a full medical exam performed. Yet many bikers who've been hit do just that, opting to forego the exam (to save money) and just accept the easy money being offered by the insurance company. It's a tragedy to later find out you have a brain bleed or degenerative spinal issue caused by your motorcycle wreck, but since you accepted a settlement already, there's nothing you can do to get additional compensation.
Another issue with motorcycle crashes is that they do not always present a clear picture of who was responsible for the accident. You may even receive a citation, but not be predominantly at fault for the accident. The insurance companies know that if you hire a good motorcycle accident attorney, they will review all evidence involved including the accident report and citations issued. They will also hire experts to recreate the accident and testify on your behalf. Knowing this, insurance companies commonly claim the evidence is unsubstantial, but offer you a settlement to look like "nice guys". Don't fall for it.
Accidents Involving Commercial & Fleet Vehicles
A car wreck that involves a commercial vehicle is similar to an 18-wheeler wreck in that it can get messy fast. As well, many company vehicles are covered by very large insurance policies but they won't let an individual know that. Again, these types of accidents would have the best outcome with a skill litigator handling the case.
Accidents Resulting in Substantial Hardships
If your accident resulted in a substantial loss of income due to missed work, a serious hardship due to not having your vehicle, or other substantial losses that go beyond just being "inconvenienced", then it is best to hire an attorney. One of the common steps for a car accident attorney to take when investigating your claim is to determine a dollar value for certain losses. They often think of things that you might not have even faced yet!
Accidents Causing Medical Bills in Excess of $5,000
If you were injured in a car crash and your expected medical bills will be more than $5,000, AND there is visible damage to your vehicle, it's time to lawyer up!
The Basics - Understanding Auto Accidents as Personal Injury Cases
Let’s start at the very beginning: An auto accident is considered a matter of personal injury law. So just what is a personal injury case? Lawyers say that they handle “personal injury cases” or “accident cases” or “wrongful death cases.” Many times, folks are not really sure what they mean. Indeed, people who have known me for years will ask me for a referral to a car accident attorney! They do this even though I think that they know exactly what it is that I do.
A personal injury, car accident, medical malpractice, product liability or wrongful death case is any type of claim where a person has been injured or killed due to someone else’s carelessness. If the only damage in your case is that your car got banged up, then you don’t have a personal injury case. But, you may have a property damage case. We do not handle property damage cases, but there are many lawyers who do so.
If both you and your car have suffered an injury, then you have both a personal injury and a property damage claim. In those circumstances, either your insurance company or the other driver’s insurance company will usually take care of the property damage claim. It is standard to settle your property damage claim separately from the bodily injury claim.
If a product hurts or kills someone, the seller is liable if the product is unreasonably dangerous and resulted in the harm. The maker of the product is liable even if they were careful when it was made. So long as the product is defective or unreasonably dangerous, the maker is liable for the harm. This is the law of product liability.
If someone’s negligence causes the death of another, then this is called a “wrongful death” claim. In Texas, parents, children and the spouse have a right to recover for the emotional harm that has resulted as well as any financial loss. You need an attorney who understands the specialized wrongful death laws of Texas.
Myths & Misconceptions About Car Accident Insurance Claims
I've been handling accident and injury lawsuits since 1985 and in that time I've heard all manner of assumptions and myths about these cases. I'm sure you've been exposed to many of the same ideas from friends, neighbors and relatives on how to deal with insurance companies when pursuing a minor car accident settlement. Let's put a lot of these misconceptions to rest right now.
- If you write the insurance company a letter and are reasonable, you will get a reasonable settlement proposal.
- When you are in an accident and the insurance company calls you to ask for a recorded statement, you have to give them a recorded statement or they won’t settle with you.
- All lawyers who advertise that they handle accident cases have the same ability, tools and experience to handle your case.
- The insurance company for the person who hit you is obligated to pay your medical bills as they become due.
- The court system is some sort of lottery that will help you get rich.
- Just because there has been an accident and it wasn’t your fault, there must be some insurance company that will pay for your bills, lost pages and injuries.
- It is good for your case when a lawyer refers you to a doctor.
- Juries in Texas are generous.
- There is a formula for determining settlement value.
- The lawyers you see on TV are respected and the insurance companies are afraid of them. (That is a funny one!)
You're In For a Tough Fight - But It CAN Be Won
The day you were injured, you entered a war zone. Insurance companies and some in the government have declared war on injured people and their attorneys. They have waged the war in the media and their propaganda has had a tremendous effect on juries and their verdicts. This is called tort reform. The success that the insurance companies have had in tainting the minds of jurors has emboldened them to not offer fair settlements until you prove to them that you are ready, willing and able to go to trial.
Admit it. Until you or a family member was injured, you, too, may have thought that a personal injury lawyer is a bad person and that people who make claims and file lawsuits are stealing from society. That is what billions of dollars in insurance company advertising will get you! They have hired think tanks that sit around and craft the canned messages to downgrade any claim, legitimate or not, so they do not have to pay for the losses. These messages include terms that are frequently heard in the media such as “frivolous lawsuits,” “junk lawsuits,” “greedy trial lawyer” and so forth.
Insurance Companies Will Stop at Nothing to Destroy Your Claim
Sadly, the following story is true though almost unbelievable. Yet, Progressive Insurance Company once ADMITTED to these actions. It seems that the insurance company actually hired private detectives to JOIN A CHURCH in order to discredit a couple suing the insurer.
Progressive Corp. Chief Executive Glenn Renwick later apologized for the use of private detectives.
"What the investigators and Progressive people did was wrong – period,” Renwick, head of the third-largest US auto insurer, said in a statement. “I personally want to apologize to anyone who was affected by this.”
Apparently, the Progressive detectives worked their way into and taped support group sessions.
In other cases, Progressive has sent letters to my clients informing them that they have won a prize, usually a heavy grill or a pickup full of goods. When the client shows up to collect, they are secretly filming. In other cases, they film people in their backyards doing simple yard work. What they don’t show is the pain that results later that evening from trying to do something to free the client from the agony of doing nothing.
This conduct is outrageous but, unfortunately, not all that unusual. Victims of car accident cases must be ever vigilant, because these companies will stop at nothing. Progressive has been sued on this matter and based upon the admission of its CEO, should expect to pay a hefty judgment.
This is just one example of how far an insurance company will go to keep from paying up. Hopefully your case is minor enough that they won't balk at paying a fair settlement.
What Must You Prove to Get the Most Money From a Car Accident?
Just because you were hurt doesn’t mean you are entitled to money. You must prove that someone else was negligent or careless and that it was their negligence or carelessness that caused your injury. If you fail to do this, you lose. If you sue the wrong person, you lose. If you wait too long to sue, you lose. If you had an injury BEFORE the accident, then you are only entitled to be compensated to the extent your injury is now worse.
In Texas, if you were in any way at fault, you do not necessarily lose. This is known as the law of comparative negligence. This means that if the “other guy” was 99 percent at fault and you were one percent at fault, then you are entitled to recover 99% of your losses. However if you were more than 50% at fault, i.e. 51%, the law says you do not get to recover anything.
For you to have a viable case it must be clear that your actions were not the only cause of the accident.
Also, in Texas you cannot sue your employer for negligently hurting you if the employer carries worker’s compensation insurance, except in extraordinary circumstances. If the employer’s gross negligence results in death, the family can sue, but these cases can be hard to win. It has been said that it is easier to uphold a murder case in the appellate courts than to get them to uphold a gross negligence case.
Sometimes, several persons or companies are at fault and a jury gets to decide the percentage of blame against each. If one company – for example, an employer – is to blame but cannot be sued, the jury can apportion fault among the others, in most circumstances.
Tactics Car Insurance Companies Use to Avoid Paying You
I am sick and tired of insurance companies taking advantage of people before they have a chance to talk to an attorney. For years, one major insurance company encouraged claimants to not even talk to an attorney before settling the claim. They used fear (the lawyer will take one-third to forty percent of this check we’re about to pay you just for talking to them) to dissuade people from getting good advice.
Guess what? You may not need an attorney to represent you in your case! No one, however, should settle a case without understanding “the system.” Typically, for example, the insurance adjuster isn’t going to tell you that you might have to turn around and take the check they just paid you and pay it to your health insurance company. They don’t care about you.
That adjuster just wants to close the file and get you to release all of your claims.
Here are some other tactics I’ve seen insurance companies use just to wear you out and get you to go away:
- Deliberate Delay. They know that often, you are in a financial squeeze. Even if you have good health insurance, the fact that you aren’t working may make it difficult to handle co-pays and deductibles. The insurance company knows you are getting dunned by the doctors, so they take their time with your claim.
- Requesting Unnecessary Information. Insurance companies will insist that you track down every little piece of information before “we can evaluate the claim.” Even if the information they are asking for would not add a penny to their offer, they are happy to wait another six weeks for you to track it down. Meanwhile, they are earning interest on the money they are NOT paying you.
- Disputing Medical Treatment. Even though I’ve never met an adjuster who went to medical school, they seem to know just what treatment is right for you! Usually, they “know” that you were over-treated because “our computers say you should have been better by now.”
- Nickel and Dime the Medical Charges. Think about it. If they shave just 5% off your claim and can do that to the millions of claims made each year, they get richer.
- Misrepresenting Insurance Benefits. This is a big one. They tell you that there’s only $25,000 in coverage. We file suit and “magically” find an umbrella policy, which has additional coverage for another $1,000,000! Don’t you think they knew that just by looking on their computers before we filed suit? Of course, they did.
- Acting Like Your Friend and Making False Promises. Watch out for the adjuster who befriends you, shows up at your house and promises to pay your future medical bills. This is a tactic to stop you from hiring a lawyer. (Believe me, they won’t come around to your house once you have a lawyer.) Those future medical bills? Well, they’ll sometimes promise to pay them until their computer says “too much, too much, this claim is costing us too much.”
The insurance company has a legal conflict of interest that they never tell you. The conflict is that their sole motive is always to pay as little as they possibly can to settle a claim or, preferably, no money at all.
Let me tell you a classic story to illustrate: “Allstate Had a Stated Goal In Its Own Manuals of Reducing Attorney Involvement in the Claims Process to Achieve a Higher Rate of Return on Settlement Claim.”
The Washington Supreme Court hammered Allstate several years ago for its “Quality Service Pledge.” The Pledge said: “Because you have been involved in an accident with an Allstate policyholder, we will provide you with quality service...Your claim representative is dedicated to carrying out this Quality Service Pledge.”
Allstate’s internal rules directed the adjuster to act as the individual’s claim representative for unrepresented claimants.
An injured woman, Mrs. Jones, settled her case with Allstate based on the Pledge and on the fact the adjuster gave her extensive “help” in settling her claim. Later, the woman tried to return the $25,000 Allstate had paid her. Allstate said “no, you signed a full release.”
The court found that Allstate had acted in bad faith.
Here, Allstate’s claims adjuster’s conduct fell below the standard of using good faith in handling claims when she advised the Joneses to sign a release of liability and did not properly advise the Joneses that there were potential legal consequences of signing a settlement check and a release of all claims or refer them to independent counsel. She did not fully disclose the conflict of interest she presented. - Jones v. Allstate Insurance Co., 146 Wash. 2d 291 (2002).
The court, in allowing the injured woman to proceed with her bad faith lawsuit against Allstate for its deceptive practice of appearing to be her friend when it was really trying to trick her into not getting advice from an attorney, said that Allstate had a stated goal of reducing attorney involvement in the claims process to achieve a higher rate of return on settlement claims.
Low Settlement Offers & Other Insurance Tricks
Of course the initial offer from an insurance company will never be their best or final offer. The solution here is to simply not accept it and continue submitting your evidence. Unfortunately the insurance companies have even more tricks up their sleeves such as:
Claiming You Must Use The Other Party's Insurance for Repairs
Wrongly telling their own insured that they have to go through the careless driver’s insurance company to get their car appraised/fixed since it was “the other guy’s fault.” This simply is not true. You paid your insurance company a premium for service. It is often quicker to go through your own insurance company to get your car fixed. Yes, you will pay the deductible up front, but your insurance company should get that back from the other insurance company and reimburse you.
Entering a secret “side agreement” with the careless driver’s insurance company to get reimbursed for medical bills it paid and never telling you about it.
Secretly videotaping you and talking to your neighbors just to get some “dirt” on you to use in settlement negotiations.
Tracking You Online & Cyber Bullying
Trolling YouTube, Google and other Internet social networking sites for your postings and sometimes attempting to be a “cyber-buddy” to get you to admit to certain activities.
Hiding Settlement Offers & Refusing to Settle Fairly
Putting their own insured at risk of financial ruin by failing to settle claims fairly and failing to advise their insured of settlement offers. In several cases, we have seen one of the largest car insurers in the world subject their own customers to large verdicts and recorded judgments against them because the insurer refused to settle cases fairly. Suppose a negligent driver has only $100,000 in insurance (a very low number, considering the cost of medical care), but the case is legitimately worth several hundred thousand dollars. The insurance company makes a low-ball offer that is rejected. The jury returns a fair verdict of several hundred thousand dollars. The insurance company only has $100,000 to pay, leaving their own customer with a recorded judgment of several hundred thousand dollars. Try getting a mortgage with a judgment like that against you!
Forcing Medical Care Reimbursements
You should be aware that often, if your medical bills were paid by health insurance of an employer’s health plan, the health insurance company or plan may want you to reimburse it out of any personal injury recovery you receive. Your “insurance” turns out to be not insurance at all, but a “loan.” We have seen cases where the insurance companies hired lawyers to make the claims for them. What they don’t tell you is that this area of law, known as “reimbursement” or “subrogation,” is actually quite complicated and is sometimes governed by a federal law called ERISA (The Employee Retirement Income Security Act of 1974). Your attorney should understand the implications of ERISA on your case.
There are other liens that may affect your total recovery as well. If your bills were paid by Medicare, Medicaid or the United States Government (including “free” military care), you may be forced to pay back a portion of your settlement.
In addition, if not handled properly, you may not even have the right to Medicare payments in the future if you settle a claim that involves future medical expenses that Medicare may owe. This is known as The Medicare “Set Aside” Law.
Common Arguments Insurance Companies Use to Deny Claims
Aside from their dirty tricks to support a low-ball settlement offer, the insurance companies will also look for ways to outright deny your accident claim. Here are some of the common reasons we've seen:
- You weren’t wearing your seat belt (one more reason to always wear a seat belt!).
- Your car was defective.
- You were drunk or impaired by legal or illegal drugs.
- You didn’t see our guy blow the red light, so it’s your fault you got hit.
- You exaggerated our guy’s speed or conduct, so you are not credible.
- You didn’t get an operation.
- You have previously been injured.
- You had a chance to avoid the accident.
- Our insured is not accepting fault.
- The x-rays don’t show you were injured (hint: x-rays aren’t designed to show all injuries, just broken bones).
Questions to Ask an Insurance Company Before Signing or Saying Anything
- Will you put in writing that the accident was not my fault?
- Will you tell me how much insurance the person who hit me has?
- If I give you a recorded statement, will you give me a copy of the recorded statement that you already got from the person who caused the accident?
- If I sign this medical release, will you immediately forward to me a copy of everything you get using my release?
- Will you tell me how much money you have set aside in “reserve” to pay my claim?
- Will you give me copies of all recorded statements that you have taken from witnesses?
- Will you tell me now whether there is any “umbrella” insurance coverage available to cover my claim?
- Will you tell me whether you have already done video surveillance of me? Will you guarantee me that you will not do it in the future?
- Will you give me a copy of any “index” information that you have already gotten from your computer system?
- Will you give me a copy of any financial information that you may have already obtained on me?
- Will you tell me which of my neighbors you have already interviewed?
Good luck! Our experience is that the information sharing with insurance companies is a one-way street. You give to them, but they don’t give to you!
The 5 Mistakes That Will Wreck Your Car Accident Case
The following actions will give an insurance company enough reason or evidence to move forward with a denial of claim regardless of whether you are handling the matter yourself, or you've hired an attorney and filed a lawsuit. In short, avoid doing any of the following:
The Client is Referred by the Lawyer to a Doctor or Chiropractor
Some local judges call this “service” provided by some lawyers “the kiss of death” to a claim. (I heard of an attorney who was disbarred because he referred clients to a chiropractor and then told his clients to lie about the referral when asked in deposition.) The problem is that jurors are highly suspicious of lawyers and doctors who have a referral relationship. While the client may not know how many of that lawyer’s clients have been referred in the last 12 months to a particular doctor, you can bet the insurance company knows or will find out. How credible do you think that doctor’s testimony will be when the jury finds out that he treated 50 patients from the same lawyer last year?
Are there exceptions to this rule? Yes, there are.
You may have a very real need for a specialist. It is perfectly legitimate for the attorney to make that recommendation. If every client, though, is getting referred to the same chiropractor or the same orthopedist, then that is a huge problem. So, beware of the attorney who has a stack of doctor/chiropractor cards in their office. You need to ask the right questions and fully understand the business relationship, if any, between that attorney and the doctor.
Hiding Past Accidents from Your Lawyer
Once you begin a case, the other side will be interested in knowing how many past accidents you have had. The reality is that they probably already know the answer or have easy access to that information. All insurance companies subscribe to insurance databases and, often, the only reason they ask you this question is to find out if you are an honest person.
If you have been in other accidents, your lawyer can investigate and make a determination as to whether this is a valid problem in your case. If you do not tell your lawyer, however, and you misrepresent your accident history to the insurance company, then it is almost guaranteed that you will lose your case.
I have often heard clients who lost their cases say that they didn’t think they needed to disclose prior accidents to us because “it didn’t matter.” The insurance companies already know about them and always tell the jury. Cases are always lost when a client lies. While we could have dealt with past accidents had we known about them, the mistakes cannot be undone and always are devastating to the clients who hide them from juries. Many times, if the accidents have no relevance, your lawyer can exclude them from evidence. But, they are never excluded if you lie about them and get caught in the lie on the witness stand.
Hiding Other Injuries
It goes without saying that you should be upfront and honest with your attorney about any injuries that occurred before or after this accident. Again, if you saw a doctor or other health care provider, there is a record in existence that the insurance company will find. Your lawyer can deal with this if they know about it. But if you lie and the insurance company finds out, your case is over. Remember, there is no privacy in America today. When you make an insurance claim, your life becomes an open guide.
If your doctor keeps “two sets of records” because they’ve been treating you for years and you don’t make sure that we get ALL of the records, we’ll fire you. Simple as that.
Not Having Accurate Tax Returns
In most every case, a claimant will have lost income because of the accident. You will only be able to claim that lost income if your past tax returns are pristine. You don’t want to risk going to jail by claiming a loss of income, only to have your past tax returns not back up your claim. Again, being honest with your attorney is the only way to be, because they can deal with the problem if they know about it.
Be aware that you will most certainly be required to produce your tax returns if you file a lawsuit and claim lost wages. If you are a liar and a cheat, this will come back to haunt you in your injury case and I don’t want my name associated with liars and cheats.
If you don’t have your tax returns, you may still have a case. But in almost all instances, you cannot make a claim for lost wages.
Misrepresenting Your Activity Level
Insurance companies routinely hire private investigators to conduct videotape surveillance. Now, they also troll YouTube and other social networking sites or “Google” you. If you claim that you cannot run, climb or stoop, and you get caught on videotape running, climbing or stooping, you can forget about your claim. There is no explanation (other than “you got my brother, not me”) that can overcome the eye of the camera. One of our former clients claiming a “back injury” got caught on his roof repairing shingles. That didn’t look so good and I fired him as a client when I found out.
Handling Insurance Company Requests for Information
Here are some common questions I am often asked that highlight additional errors many folks – and many lawyers who claim to be experienced personal injury lawyers – make. All of these mistakes have a high probability of sinking otherwise good claims.
Should I Give The Liability Insurance Adjuster A Recorded Or Written Statement?
No, never! Insurance adjusters want to take your statement in order to lock in your story. It seems like that is fair, doesn’t it? You want to tell them so they can understand that the other person or company is at fault in causing your injury, don’t you? Well, regardless of how nice this adjuster seems or how convincing they may sound that you must give the statement, you need to know that you are dealing with a person intent on securing only half of the truth. They are trained to put words in your mouth and then ask you to agree. They are trained to ask follow up questions in a manner that will insinuate that you could have done something to avoid the incident. They are trained to minimize the effect of your injuries and make you feel like you are a “wuss” if you are still hurting with these “sore muscles” and “soft tissue” injuries.
If you were to hire a lawyer they would not allow you to give a statement. There is no requirement that you give the statement to the third party insurance adjuster. If you do end up needing a layer and the case goes to trial, the insurance company will be unable to use what you have said out of context or in a misleading manner. Thus, the jury can decide your case based on the truth, rather than the misleading information the insurance company has secured from you.
If YOUR insurance company wants a statement, you do have a duty to cooperate. But, a good lawyer will impose conditions related to the giving of the statement which will protect you. I prefer that my clients provide a deposition and this serves as the “statement request.”
Should I Sign The Medical Release They Need To Gather My Medical Records?
No, never! The insurance company has probably told you that it will save you money and that they need the information to evaluate how much they are going to pay you, right? Wrong.
The release will give them the right to visit with your medical providers. It also will give them the right to obtain all your medical records and bills from every past accident, claim, illness and medical service that you have ever had.
You say, well that seems fair because they need to know what my medical providers say. The problem is that insurance adjusters will often talk to your doctor or write to them in an one-sided attempt to minimize your injuries or, worse yet, to persuade the doctor that other things may be contributing to your problem. They will obtain all your past private medical information – things that may have happened a decade or more ago – to convince your doctor that you haven’t shared ALL your past information. They will label you as a cheat and shame the doctor into saying that you have insignificant injuries that are related to prior medical conditions.
What’s more is that the insurance adjuster has a team of doctors who will review your records from this incident and from prior incidents. They will use your records to substantiate their “FORM” opinions used in every case. They will say, in so many words, that you are a cheat and a fraud, and that you are trying to capitalize on this accident for a profit. They will say that the medical tests do not prove that you were injured in this incident and that your injuries likely were present before. Further, they will say that you will likely recover from the injuries in this incident and that any longstanding problems you suffer are related to the preexisting injuries reflected in the earlier medical records.
Again, if a lawyer were handling your case they would review your prior medical records carefully before sharing anything. Then, they would only release limited records that a doctor believes are relevant. In addition, a lawyer will send your doctors proper legal requests that prohibit your medical providers from visiting with the insurance adjuster, lawyers who are advising the adjuster or the at-fault party.
Without warning, an accident can change everything in your life – physically, emotionally, and financially. Almost immediately, you find yourself in a maze of medical bills, lost wages, and maybe even permanent physical damage. And just when you are at your most vulnerable, the insurance company comes knocking at your door with its little games to get you to settle your personal injury claim quickly and cheaply. Sort of like the accident never happened at all.
My goal in writing this guide is to provide victims of serious injury accidents with a straightforward guide to handling their cases. Personal injury cases can open up a myriad of questions and the answers are often confusing. But armed with clear, simple, honest answers, you will be able to understand the legal process and how to go about getting a fair recovery. These are among the first steps needed to get your life back in order.
What If I Decide I Need an Attorney to Help With My Claim?
There's nothing to prevent you from hiring an attorney before you reach a signed agreement with the insurance companies. There's also no shame in starting off on your own and deciding the process is too much to handle alone. As I've detailed above, the insurance companies do not play fair and they see those without legal representation as easy targets. If you've run into a wall, or you're just tired of dealing with process, you can call me at the Stephens Law Firm and I'll be glad to let you know how I can help.
If I Choose To Hire A Lawyer, Does It Matter Who?
Yes, your claim is dramatically affected by the law firm you hire. The insurance companies are well aware of the lawyers who will try a case. They fear the law firms who will fight them because this means the threat of paying a lot of claim expenses, even if the insurer loses. They also know if they must face an experienced and talented lawyer, they must pay many times what they would otherwise need to pay.
On the other hand, if you hire a lawyer who is only interested in making a “quick settlement” and has a cookie cutter approach to handling the many claims that they accept, then the insurance company will probably offer that law firm about the same amount of money that they would offer you even if you did not hire a lawyer. Most of the law firms that advertise on TV and the Internet commit the four costly mistakes that I discussed earlier. Why would you want to pay them a large contingency fee when they violate these cardinal rules and jeopardize your important claim?
In short, if you decide to hire a personal injury attorney rather than fight the insurance company yourself, be sure you hire someone who is not only experienced but has a reputation among the insurance companies as someone who will take them to trial.
Can I Get More Money if I Hire an Attorney?
A 2004 study found that insurance companies pay higher settlements to injured people who use an attorney than to those who do not?
The insurance industry performed a study to find out if people who had accident claims received more money in settlement by using an attorney than those people who settled on their own. The study was performed by the Insurance Research Council (IRC), a non-profit organization that is supported by leading property and casualty insurance companies across the United States. The mission of the IRC (IRCweb.org) is to advance the insurance industry’s view on matters crucial to insurance companies. The IRC found that people who used an attorney received, on average, 3½ times more money in settlement than those individuals who settled on their own.
What Will An Experienced Personal Injury Lawyer Do For My Case?
Here is a list of some of the tasks your attorney may be called to do in your case. Remember that each case is different and that not all of these tasks will be required in every case. They are:
- Initial interview with the client.
- Educate client about personal injury claims.
- Gather documentary evidence, including police accident reports, medical records and bills.
- Analyze the client’s insurance policy to see whether there are any coverages which the client has that may pay all or a portion of the medical bills while the claim is pending.
- Analyze the client’s insurance coverages and make suggestions as to what coverages should be purchased for future protection.
- Interview known witnesses.
- Collect other evidence such as photographs of the accident scene.
- Analyze the legal issues like possible comparative negligence of the client and others.
- Talk to the client’s physicians or obtain written reports from them to understand the client’s condition fully.
- Analyze the client’s health insurance policy or welfare benefit plan to ascertain whether any money that was spent to pay your bills must be repaid.
- Analyze the validity of any liens on the case. Doctors, insurance companies, welfare benefit plans and employers may assert that they are entitled to all or part of the client’s recovery.
- If not already done, contact the insurance company to put them on notice of the claim.
- Decide with the client whether an attempt will be made to negotiate the case with the insurance company or whether suit shall be filed.
- If suit is filed, prepare the client, witnesses and health care providers for depositions.
- Prepare written questions and answers and take the deposition of the defendant and other witnesses.
- Produce to the defendant all of the pertinent data for the claim such as medical bills, medical records and tax returns.
- Set a trial date with the court as soon as possible.
- Prepare for trial and/or settlement before trial.
- Prepare the client and witnesses for trial.
- Organize the preparation of medical exhibits for trial.
- Organize the preparation of demonstrative exhibits for trial.
- Prepare for mediation and/or arbitration.
- File briefs and motions with the court to eliminate surprises at trial.
- If the case merits it, conduct a focus group and dramatization of the case. (In my experience, most cases require this preparation.)
- Take the case to trial with a jury or judge.
- Analyze the jury’s verdict to determine if either side has good grounds to appeal the case.
- Make recommendations to the client as to whether or not they should appeal the case.
- Handle the appeal.
The Legal Process When an Attorney Handles Your Claim
After gathering all of the facts and medical records, and after your medical treatment has ended, your attorney will develop a settlement strategy with you and attempt to get your case settled with the insurance company. There are many reasons to settle a case, including the fact that we are living in a very conservative part of the country as far as jury verdicts go, that your attorney fees will be less if your case can be settled and that your total costs will usually be less than if the case goes to trial. Your attorney will help you analyze the insurance company’s best offer and compare it to what you might get by going to trial. Of course, you must realize that every case, even “obvious” cases, can be lost. In one example, a lawyer lost a case where the wings fell off an airplane and caused the plane to crash because they did not persuade the jury that there was something wrong with the plane.
Sometimes, attempting to negotiate with the insurance company before filing suit is not a worthwhile endeavor. Insurance companies sometimes use pre-suit negotiation only to attempt to find out as much about you, your lawyer and your doctor as they can. It is generally a dangerous practice to wait until the statute of limitations has almost expired to file suit. I have seen other attorneys do this, only to find that the defendant they sued is either not the correct defendant or is now blaming someone else.
While there are legitimate reasons for delaying filing suit, there is no excuse for the practice whereby an attorney waits until the last moment to see if the insurance company will settle the case. When the claim does not settle, they often try to find an attorney to file the case on time. I’ve received plenty of those last-minute calls. I reject them. I lead a balanced life and don’t need to take on problems other attorneys have caused by their delay in taking action. Their inaction is not going to be my crisis.
Some accident victims are ill served by hiring attorneys who are not licensed in the jurisdiction where suit must be filed.
Once the lawsuit is filed, both sides engage in the legal process called discovery. Each party is allowed to investigate what it is the other side is going to say at trial. The defendant will be permitted access to your medical and work histories, including your income records. You may have to give a deposition under oath and you may be required to submit to a medical examination by a physician of the defendant’s choosing. The defendant is also subject to discovery. They will answer written and oral questions about their own background and will have to give sworn testimony about the incident at issue.
Finding a Good Personal Injury Attorney in Your Area
Choosing an attorney to represent you is an important, but daunting, task. The decision certainly should not be made on the basis of advertising alone. The Yellow Pages are filled with ads, all of which say basically the same thing. You should not hire based solely on advertising. Anyone can buy a slick commercial, and many have.
How do you find out who in your local community is the best attorney for your case? There are certain questions to ask that will lead you to the best person for your case – no matter what type of claim you have. Yes, it will involve some time on your part, but that’s OK because the decision you are making may be critical to the success of your case.
In my opinion, the world of personal injury claims is much too specialized for someone who does not handle these cases regularly. Too many times we have looked at cases that have been handled by general practitioners, tax lawyers, criminal lawyers and family law lawyers. That’s just not good. Get a specialist. They are out there. I believe that the lawyers who say they are qualified to handle 15-20 types of cases (or more) are usually not qualified to handle any of them very well.
You should be aware that the insurance companies who defend personal injury and accident cases know who the attorneys are in your area who actually go to court to regularly try cases and who do not. Hint: A particularly loud lawyer whose commercials are often seen on TV announces with a disturbing level of dignity that he goes by the same name as a professional wrestler – “The Texas Hammer.” He is NOT one of the more respected lawyers in this area! The insurance companies use that information to help evaluate their risk. One of the first questions some insurance adjusters will ask when a serious claim comes in is: Who is representing the plaintiff ? I’ve heard insurance defense lawyers laugh as they head for trial against one of these TV lawyers! It’s like shooting fish in a barrel for them.
If this information is important to the insurance company, shouldn’t it be important to you?
How to Interview a Lawyer for Your Car Accident Case
There are certain questions you should ask of your attorney before you spend any time going through their "free consultation". Before you make an appointment with any lawyer, you should ask them to send you their package of written information which, at the very least, should include the following:
- A listing of sample verdicts and settlements as well as the link to the Avvo website, which shows industry recognition and testimonials.
- A full written explanation of the steps involved in a personal injury lawsuit.
- A full explanation of fees and costs, the difference between the two, and how the percentage fee is calculated.
- A professional biography that outlines at least how long they have been actually going to trial in personal injury cases and indicates whether they are board certified or not. (Like doctors, there is no requirement that an attorney be board certified to handle your case. Anyone can advertise for any type of case.)
Please Note: Our policy is to not take your case if you are already represented! Everyone does things a little differently and we do not accept cases in which another local attorney has already been involved. If you are currently represented, use this guide to increase your knowledge and to ask informed questions, but please don’t ask us to take on your case. We won’t.
How to Research an Attorney Before Hiring Them
Here are some tips for researching any attorney you may wish to hire. Don’t hesitate to ask your attorney about these. Note that not every attorney will meet all of these criteria, but the significant absence of the following should be a big question mark.
- Find out if the lawyer has board certifications in the field of Personal Injury Trial Law in the state of Texas.
- If the attorney has a board certification in the field of Personal Injury Trial Law, ascertain if that lawyer has any National Board Certifications from the National College of Trial Advocacy in the field of Civil Trial Advocacy.
- Ascertain if the lawyer has been chosen as a Texas Super Lawyer. The lawyers in this organization must be nominated and then are voted on by their peers to be considered outstanding lawyers in their field. Very few lawyers are chosen.
- Have they had any grievances filed against them? The state bar only advises if they have lost a grievance, not whether one has been filed against them by a client.
- Have they ever won any awards for their accomplishments such as “Outstanding Trial Lawyer” or “Verdict of the Week”?
- And, most importantly, does the lawyer you are seeking to hire have a lot of experience in the courtroom trying cases to juries? Most experienced lawyers have tried very few cases. The specialty organizations that certify lawyers these days are actually thinking of lowering the number of trials that a lawyer must have tried because nobody can qualify to take the exam. The number of trials is only 14. A truly experienced courtroom lawyer should have between 50-100 trials under their belt, with many of them involving serious injuries and death claims. Otherwise, they will get no respect from the big insurance companies when it comes time to settle the claim. The insurance company checks out the lawyer’s track record. So should you! How can you check out the lawyer? Run a search through Verdict Search to ascertain at least some of the cases the lawyer has tried in the recent past.
- Look at Internet services such as Avvo, the industry leader in lawyer ratings. It shows the measure of what others think of the lawyer. Martindale-Hubbell also provides lawyer ratings such as AV, which stands for preeminent. In my opinion, however, Martindale- Hubbell has become so commercialized that its rating service is not all that reliable these days. With increasing frequency, good lawyers are left off its peer review ratings because they choose not to pay thousands of advertising dollars each year. Further, lawyers with poor reputations or no reputation are included and given high ratings. The influence of their paid advertising and websites probably has influenced the objectivity of this formerly reputable rating service.
- Interview several attorneys. Ask each attorney who else handles personal injury cases in your area. If they won’t give you any names, leave. Ask this question of each attorney. The names you see showing up on various lists of recommendations are probably good bets for attorneys handling these cases in your area on a regular basis.
- Be careful about any attorney who rushes you to sign a contingent fee agreement. A contingent fee is not the right fee for every type of personal injury case. You should take the agreement home, read it and understand it. We have heard of instances where fee agreements are delivered by courier within hours of the time you first call the attorney’s office. That’s right, before you even have had a chance to meet with the attorney. This is outrageous.
- Stay away from any attorney who calls you first.
- Beware of “runners.” A “runner” hangs out at the police station or listens to police radio to “run” to accident scenes or hospital rooms to encourage victims to sign contracts with attorneys. Outrageous does not begin to describe this practice!
- Beware of any attorney who contacts you in writing just after you have had an accident for the sole purpose of soliciting your claim. If you are contacted “cold,” it should be for the sole purpose of providing you free information that you can study in your own home and on your own time, not soliciting your case.
- Beware of any attorney who has a stable of doctors to whom they want to refer you. You can tell who these attorneys are by the rack of doctors’ cards they keep in their office. Local judges have said that when an attorney makes a referral of a client to a doctor for a garden-variety case, this is the “kiss of death” for that case. It’s OK to get a referral to a specialist health care provider, but run from any attorney who has a stack of doctor or chiropractor cards in their office.
- Members in trial lawyer associations. In our area, you can certainly find a lawyer who is a member of the Texas Trial Lawyers Association (TTLA) and the American Association for Justice (AAJ). These organizations provide extensive education and networking for trial lawyers.
- Authorship. Has the lawyer published any guides or had any by-lined articles accepted for publication?
Once you have decided on an attorney, make sure you both understand your goals and you understand how the relationship between your attorney and you will work.
- How will your attorney keep you informed about the progress of the case? Your attorney should also take time to explain the “pace” of the case and in what timeframes you can expect activity to take place.
- Find out who will actually be working on your case. Make sure that you and your attorney have a firm understanding as to who will be handling what. There are a lot of things that go on with a case that do not require the senior attorney’s attention. On the other hand, if you are hiring an attorney because of their trial skills, make sure that that person is going to be trying your case for you and taking every deposition in the case.
Hiring the Stephens Law Firm to Handle Your Case
My law firm is different. We don’t rely on a high volume of cases generated by massive TV and Yellow Page advertising. We don’t claim to handle every type of lawsuit under the sun. We don’t want to. We don’t need to.
Each year, The Stephens Law Firm accepts a limited number of injury and accident cases from the hundreds of people who ask us to represent them. We are not a “TV advertising personal injury mill.” We do not allow paralegals and assistants to negotiate your case with the insurance company. Fewer cases mean more time for you and, we believe, better results overall.
Since 1985, The Stephens Law Firm has represented accident and injury claimants throughout Texas. Most of our cases are referred to us by former satisfied clients and by other attorneys and health care professionals. If we accept your case and you are not local to us, we will come to you, anywhere in Texas.
Sometimes the best advice you can get when you are thinking about a lawsuit is that you do not have a claim that can be won. If that is true, we will tell you. We’ll also tell you when we think you are better off handling a claim yourself – without an attorney. But, if your case passes our test and we accept it, you can be assured that you will receive personal attention. We will represent you aggressively, keep you up to date on what is happening in your case and give you advice as to whether you should settle your case or go to trial.
We will explain all fees and costs to you fully before we start working on your case. Together, as a team, we will decide on the best approach for your case.
About the Author - Personal Injury Attorney Joe Stephens
Joe Stephens was born and raised in a small town in Oklahoma before moving to Houston, where he currently represents the injured and people with limited resources. He is known as a “Lawyer for the People” because he has devoted his career to representing the common man against big business and insurance companies. He is double board certified by the National Board of Trial Advocates and by the Texas Board of Legal Specialization in Personal Injury Trial Law.
Since 1985, Mr. Stephens has tried over 120 jury trials involving personal injuries and wrongful deaths. He has the highest ranking by Avvo (“10 out of 10”), the nation’s largest independent lawyer ranking service. He has been chosen for inclusion in Texas Super Lawyers based on nomination and peer review. In 1999, the American Association of Justice (AAJ), which is the world’s largest trial bar, elected Mr. Stephens as its “Most Outstanding Young Trial Lawyer.” The United States Supreme Court has admitted Mr. Stephens and found him qualified to practice before it.
Mr. Stephens is a member of the Trial Lawyers College, an elite group of “Trial Warriors for the People.” He is also a member of The Texas Trial Lawyers Association, The Houston Trial Lawyers Association and The American Association for Justice.
Mr. Stephens has won many important trials which have received national media attention. These include the wrongful death victory in the Clara Harris case. He has argued before the Texas Supreme Court, the highest court in Texas. The nationally-recognized publication Verdict Search has chosen several of Mr. Stephens’ cases in recent years as the “Verdict of the Week” for the entire state of Texas. Due to numerous qualifying jury awards, he earned membership in the Million Dollar Advocates Forum. In 25 years of practice, Mr. Stephens has never had a client file a grievance against him.