Do Most Personal Injury Cases Reach a Settlement Before Going to Trial?
Yes, most personal injury cases reach a settlement before going to trial. There are just not enough courtrooms and not enough judges to try every case that gets filed. We would be backlogged even more than we are now if all cases get tried. Most cases settle because the attorney will advise the client that there is a reasonable offer made and that we believe you should take it or we’ll make some arrangement to do a reduced fee to get the client more money in their pocket (in some circumstances—not all). Not every firm will offer a reduction but we are willing to do so if we are close enough to a settlement numbers wise. If we are too far apart, then we’ll just leave it up to a jury or a judge to decide.
You have to set reasonable expectations at the onset of the case. If the client has never had a case before and they think since they’ve been in a car accident that they are going to retire, you’ve got to let the client know that this may not be a case that will pay the amount they are looking for. Cases that are fatal mean we are speaking to one of the relatives or next of kin of a deceased person. Cases where there is death, dismemberment, and permanent injury usually yield higher values than those where (thankfully) the client is able to function as they did before the crash. The reason cases don’t settle is usually one for one or two reasons. Either the insurance company is lowballing so the offer is a bad one, or the offer that they have made is decent and the client has an unrealistic expectation. The decision is always up to the client on whether they are going to accept an offer or not. It’s not an attorney’s decision.
What Should I do if the Other Party’s Insurance Adjuster Contacts Me Asking for a Statement?
I never advise speaking to the other insurance company if the other party’s insurance adjuster contacts you asking for a statement without proper representation. It’s not that they are doing anything illegal or underhanded but they are professional interviewers and most clients are not professional interviewees. Insurance adjusters know how to ask questions: they conduct interviews all the time. You don’t want the client to make a statement that may come back to bite them later. If the client is going to give an interview (called a recorded statement), I must be present on the call. There are other firms who will not allow statements at all. It’s different based on the lawyer and the practice of the firm. I don’t mind a statement most of the time. Most of the time we will give those statements so we can get the liability dispute resolved. We prefer that there is an offer prior to filing suit, although it doesn’t always work out that way. If they have a statement from their driver or their insured and there is no statement from ours, and there are no witnesses, the insurance carrier is more likely to take the word of their driver.
Again, I never let my clients make statements on their own concerning how their accident occurred or the extent of their injuries. Sometimes recorded statements are provided before I get in the case. However, once the insurance carrier knows you have a lawyer, they will contact the lawyer to get information about the case.
I do, however, let clients handle property damage and that’s just so they can get their car fixed or get the value or the money for their car if there is a total loss. This is done to avoid phone tag between busy lawyers and busy insurance representatives.
What Are the Components That Constitute a Viable Personal Injury Claim?
The biggest component in a viable personal injury claim is the existence of damages. Some lawyers may not say this, but some cases are not worth you hiring an attorney because the damage is minor. The damage to the vehicle is minor and the damage to the person may be minor. They may have gone to the ER one time, but they feel better and there are no residual effects. The biggest thing you need is always some type of injury. Every car crash doesn’t result in someone being injured. This means it’s not an injury case; it’s just a property damage (PD) case. You need some type of injury.
The second biggest component is you need is someone who was careless or negligent. If there is an injury and it’s because of something that you did wrong then you have no viable injury case. In Maryland, Washington, DC and Virginia, they have what we call contributory negligence. What that essentially means is if you’re at fault even 1%, you will get no recovery. The other person is wrong and you are wrong as well. For example, they ran through the stop sign and I was speeding. They are both wrong. The client has to be what we call negligence free in our jurisdiction. I think there are only five states left that recognize contributory negligence. The rest of the jurisdictions recognize comparative negligence, which means that the person who is most at fault will pay a percentage but you need to have liability on the other person’s side, meaning they were careless and you have to be negligence free…in most cases.
Those are the two biggest components that you need for any personal injury case. Some damage and the other person carelessness, and that your injuries were due to the carelessness of the other person.
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