How Does Retaining An Attorney Impact A Personal Injury Case?
Nov. 20, 2022
When an attorney is involved we enhance the value of the case because we know how to ask for additional damages, we know which damages are recoverable, and we know how to make the case for the special damages and future medical expenses.
Does The Threat Of Going To Trial Enhance The Prospect Of a Favorable Settlement?
Absolutely, the threat of going to trial enhances any settlement. There are things to do to set up the insurance company that are tactical in nature. Anytime you have a chance to resolve something that the insurance company fails to do before litigation, if they had a chance to do it and they fail to indemnify their insured, they risk the chance of having to fund, or pay an excess verdict. For example, if an insurance company has a $50,000 policy to pay on behalf of an automobile accident, and the damages to the victim are in excess of $50,000, and the insurance company gets the opportunity to resolve it for $50,000. If they fail to do so without good faith basis, they can be on the hook for the entire amount of the verdict, because they failed in their duty to indemnify their insured.
The insurance contract with the defendant is always part of the process, and evaluation, but the insurance company has essentially two primary duties to their insured. Those primary duties are the duty to defend and the duty to indemnify. Their duty to defend is an outright duty to defend, there is a monetary limitation limit unless the policy of course, has something written into it, but generally, there is not. But the duty to indemnify is always subject to your policy limits. Even where they make a mistake, and fail to tender their policy limits, they will often have an obligation to defend even though they have known they subjected their insured to an excess judgment. In many ways, the threat of filing the lawsuit is all about holding them to their proper duties, and their duty to defend and duty to indemnify.
The threat of the lawsuit does have an impact on 1) the indemnity issue, because they can be subject to an excess if they do not handle it properly; and 2) the duty of defense, I mean defending some of these cases is not cheap. I think the average cost for defending federal cases was almost half a million dollars. There is a significant fear factor in compelling insurance companies to defend these things. We have seen this happening, because of insurance defense cost. We have noticed that some of the insurance defense firms are going on a per case basis, and they are averaging out their fees. It is paid on a case-by-case basis at a certain fee they negotiated in advance, maybe $10,000 for every district court case, or $10,000 for every circuit court case, something like that. When it comes down to the federal cases, there is significant defense cost, and it can be very fearful for them.
How Do Your Trial And Negotiation Skills Help You In Garnering A Favorable Resolution?
Negotiating skills depend on how much experience your attorney has. Certainly, with somebody that has been practicing decades, the more experienced the counsel is, it becomes a bigger deal. It helps with the insurance companies too. They see that I am experienced in these laws. I am convinced we are learning that insurance companies are keeping track of our tax ID information, and they know how much we have recovered. They are reporting to a general database all our recoveries, and they see it makes a big difference.
It is not so much the juries or even the judges. The judge’s help, but the juries are a group of citizens that are extremely fair, and reasonable in ninety-nine percent of the cases. They usually do the right thing, even if it is a defense verdict, but they do the right thing. Therefore, your appearance and how the jury perceives you are important, but most importantly is your reputation with insurance companies that makes a difference. They have to know that you are the real deal, and not just moonlighting has a Personal Injury attorney.
What Happens After A Personal Injury Claim Has Been Filed?
There are claims and then there are lawsuits after a personal injury claim has been filed. Once you file the claim, it is a notice of representation sent to the insured, the defendant, and that you ask them to contact their insurance company. That will initiate the claim’s process. They will give it a claims number, and assign an adjuster. We will start discussing things with the adjuster. The first thing that gets the ball rolling is collecting all the medical records, bills, and creating a written demand that we send to the adjuster for them to review. They will review it, and if there are any items or special damages, they may have more experts review it as well.
In fact, that dog bite case I was referring to, it has been reviewed by their certified life care planner, so they are going to come back with a different number than us, and say, “Okay, no. It’s not worth what you said it is this is what we say it is”, so, we will start negotiating what the real value of the life care plan is for future medical treatment. That is the process with a claim. The adjusters may ask for a couple of additional issues, which is becoming more common. The law changed recently where the insurance companies have to protect Medicare too. Therefore, they have been taking steps to investigate the Medicare lien, and sometimes that means we have to sign authorizations, and turnover social security numbers so they can make the request to Centers for Medicare Services to get this information. They can independently verify how much the lien amount is, so they do not have to worry about paying those in future.
Finally, they may even ask for their own authorizations to get medical records. Once this process is completed, we will begin negotiations as to the value of what we think the case is, and then, expectantly settle.
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