Maximizing the Value of
Your Personal Injury Case
SIX STEPS YOU AS THE CLIENT CAN TAKE TO
ASSIST IN THE INITIAL STAGES OF THE CASE
1. Maintain confidentiality about your case;
2. Gather data about your case;
3. Point out weaknesses in your case;
4. Cooperate with your attorney;
5. Be realistic about case preparation; and,
6. Cooperate with your health care providers.
Each of these steps is discussed below in more detail.
CONFIDENTIALITY OF CASE
Statements made by clients to persons other than their attorney or doctors do more harm to their case than anything else. Clients should not mention their case or anything about it to anyone except their attorney and doctors. Clients should not, under any circumstances, discuss their case with any of the following people:
1. Insurance Adjusters — These people are trained to determine if there is a defense to your lawsuit. You should never allow yourself to be taped or make a written statement to any insurance company representative (even if he represents your insurance company) without first discussing the matter with your attorney.
2. Defense Attorneys — Attorneys representing the opposing side should immediately be referred to the attorney representing the client.
3. Friends, etc. — The person you are suing may be a good friend of someone you know. If you make a statement to one person, it may find its way back to the person being sued or that person’s attorney.
The best rule to follow is to talk to no one without the prior approval of your attorney.
From the first day of injury, a client should keep records and receipts for any expense incurred or associated with the accident. Photographs of visible physical injuries are very important at this stage of your case. Clients should try and obtain several color photographs if you have any such injuries. Photographs of damaged automobiles and property are also important.
POINTING OUT WEAKNESSES
Whenever defense attorneys cannot successfully defend on the grounds that their defendant was not negligent, they will often attack the plaintiff based on his/her background. It is very important to us that we learn of weaknesses in this regard. If you can think of areas that defense attorneys could use against you, please let us know.
No matter how strong a case might be, most law offices will not handle a personal injury or automobile accident case unless client cooperation will be at its maximum. A civil suit is a difficult challenge at best, and requires the full cooperation of the client. Our firm has had excellent cooperation by our clients in the past. Most personal injury law firms, including ours, immediately withdraw from cases when confronted by any of the following clients:
1. The Impatient Client — This client does not realize that the proper handling and
settlement of a personal injury claim takes many months to complete IF it can be settled out of court, or longer, if it must be tried. The impatient client expects his case to settle in a matter of weeks. Except in very rare cases, a personal injury claim is never settled until you are released from your doctor.
2. The “Lawyer” Client — Some clients want to control their case and tell their
attorney how they would try their case. Clients who think they know about personal injury law than their attorney usually prove to be uncooperative. Most law firms, including our, will withdraw from a case when faced with this type of client.
3. The Unrealistic Client — Personal injury lawyers and insurance companies
know, within narrow ranges, what juries will award for certain injuries. Most law firms, including ours, will not continue to represent unrealistic clients. After consulting with medical and economic experts, we will be able to give you our opinion of the settlement value of your claim as well as our estimate of what a jury would award in a case such as your.
Clients can assist their attorney in the preparation of their case by following the steps discussed on the following page.
1. Assistance in Completing Forms — Much of an attorney’s job in a personal injury or automobile accident case is answering questions or completing forms for the opposing side. Most of this work requires the client to assist his attorney by supplying information. If this is accomplished in an expedient manner, it makes for better settlement trial preparation. Many of the deadlines set for completing this work are court imposed and, in some cases, if the forms are not completed in a timely manner, the court will dismiss the case.
2. Being Realistic About Time for Preparation and Settlement — Properly prepared personal injury and automobile accident cases are usually ready for settlement after about three to six months of preparation. Should a case be litigated, a one-year wait is not unusual. There are three major reasons for this time delay.
a. Plaintiff’s preparation
b. Defendant’s preparation
c. Court congestion
Defendant’s Preparation — Insurance companies are not going to pay large sums of money to settle a claim unless there has clearly been some negligence on the part of the defendant. The insurance companies that insure drivers hire defense attorneys to assess their liability. The defendant’s attorney obtains the statements of the witnesses, looks at records, etc., just as the plaintiff’s attorney does.
Court Congestion — Court congestion and conflicts are such that it can take several months to get a case set for trial. The longer the defendant can delay, the longer he does not have to pay a settlement and the more likely an impatient plaintiff will agree to a much smaller settlement. The best advice for a plaintiff is not to worry about his case and carry on as if it never occurred. Wait until your attorney calls unexpectedly one day and surprises you with an offer of settlement!
3. Cooperate with Doctor — An injured person who is contemplating suing for personal injuries should fully cooperate with his doctor and precisely follow his doctor’s instructions and course of treatment. This is important for two reasons:
Following your doctor’s instructions will ensure rapid recovery from your injuries,
Failure to follow doctor’s instructions may possibly prevent you from being able to sue the person who injured you.
Clients often want to know what their case is worth by way of settlement or verdict. Personal injury and automobile accidents are broken down into two broad categories for the purpose of settlement and trial. These categories are discussed as follows:
Non-Permanent Injury — If a client has no permanent injury (i.e., loss of limb, blindness, paralysis, etc.), his case will, most likely, be settled out of court. There are, however, rare cases when this type case will have to be tried.
Permanent Injury — Juries usually award larger verdicts for permanent injuries, especially if they can be seen (i.e., loss of limb, loss of sight, etc.). Invisible injuries, such as headaches, backaches, etc., are not as well compensated. Personal injury attorneys look for the following four things to gauge what a verdict will be in a particular case:
Past jury verdicts or settlements for similar injuries;
Permanence of injury; and,
Pain and suffering involved.
Past Jury Verdicts or Settlements for Similar Injuries — Personal injury attorneys and defense attorneys have access to statistical data and court records which indicate what juries have awarded for injuries. The plaintiff’s attorney tries to settle the case for as close to these past awards as possible, while the defendant’s attorney tries to settle it for less.
Geographical Location — An automobile accident which causes the paralysis of a hand is worth about one-fourth as much in North Carolina as it would in Miami, New York or Los Angeles. Clients in North Carolina must be aware that they cannot rely on awards or settlements outside of North Carolina as being any indication of the value of their case. Cases in rural counties have lower jury awards that those in more urban counties.
Pain and Suffering Involved — Juries award substantial amounts for pain and suffering as the result of personal injury or injury arising from an automobile accident. A clear case of negligence may occur in which another person is killed. In this case, there will be very little recovery for pain and suffering. There would, however, be a recovery for wrongful death. If, however, the accident caused serious injury which caused great pain and suffering and the death did not occur for months, the case would be worth substantially more because of such pain and suffering.
PROFESSIONAL FEES AND EXPENSES
Clients often want to know what it costs to settle or try a personal injury or automobile accident case. The following information is addressed to this issue.
The law in North Carolina requires the plaintiff (injured party) in a personal injury case or an automobile accident action to prove his case at trial. Preparation is the key to successful lawsuits and settlements. The defendant (person causing the injury) need only defend his position.
A great percentage of all automobile accident suits are settled without going to trial. However, clients should be aware that defense firms force plaintiffs to prepare their cases. Most settlements occur after the plaintiff has properly prepared his case.
A well-prepared case is one that will be more apt to settle before going to trial. A poorly-prepared case will be tried and, most likely, lost, leaving the plaintiff to pay all costs of litigation. Preparation costs do not include attorney’s fees. Most personal injury or automobile accident law firms, including ours, do their work on a contingent fee basis, which means the law firm earns a percentage of the recovery made for the client. If nothing is recovered, the attorney does not receive a fee.
The most common costs to a client for preparing his case are:
Attorney’s Fees — Our firm does not charge flat attorney’s fees for representing clients in personal injury cases. Our fee is based on a percentage of the recovery. This percentage is set by contract. We are entitled to no fee until we produce a settlement or verdict on your behalf.
Doctor’s Fees — It is important for clients to realize that doctors rendering medical services must be promptly compensated. The fact that someone else caused your injury does not relieve you of paying for medical services rendered. A client should make sure that his doctor is paid. If insurance coverage is involved, a client should make sure his insurance company promptly pays such medical bills. By law, any medical bills unpaid at the time of settlement or verdict are deducted from the settlement or verdict and paid at that time.
Expenses — The client is responsible for the expenses for the preparation of his claim. The expenses are deducted from the client’s award after a case has been settled or tried successfully. Expenses are based on the number of stages one’s claim has passed. These stages are:
Pre-Suit Stage — Many cases settle prior to the filing of a lawsuit. In these cases, expenses are minimal. These fees are used to obtain records, accident reports, etc.
Pre-Trial Stage — After filing a suit, but before trial, many suits settle. During this phase, there are additional expenses for depositions, expert witness fees, etc.
Trial Stage — If a case must be tried, expenses can easily exceed $1,000.00 due to the fact that expert witnesses will have to be paid for coming to court, etc.
Explanation of Out-of-Pocket Costs
In addition to attorney’s fees, which are not paid unless there is a recovery for you, clients must pay or reimburse the lawyers for any out-of-pocket expenses incurred in preparing, presenting or prosecuting their claims. The North Carolina State Bar rules require that expenses be paid by the client and NOT be contingent.
In many cases, we ask our clients to contribute some amount of money “up front” to help finance his/her personal injury claim. This way, the client has a financial stake in the claim and our cash flow is more manageable, which allows us to help more people with their personal injury claims.
We make every effort to keep out-of-pocket expenses to a minimum. After all, this is your money and we must be watchful of it. However, some expense is necessary in every personal injury claim.
1. Any expense figures that you are given are estimates only! The actual expenses in your case may be higher or lower, depending on the circumstances peculiar to your case.
2. You can generally, but not always, expect to recover any cost item taxed as court costs if you win your lawsuit. If the case is settled after the lawsuit is filed, but before a jury verdict, it is unlikely that you will recover any expert witness fees for courtroom testimony or deposition expenses.
3. If the other party wins the lawsuit, you must expect to pay his or her court costs, as assessed by the court.
4. Sometimes the other party will file an Offer of Judgment. Our rules provide that you have 10 days to accept this offer, which is a form of settlement offer, or it is deemed rejected. If you reject this offer and the jury verdict in your case is for an amount at or less than the Offer of Judgment, any court costs incurred by the other party after the date of the Offer of Judgment must be paid by you. If your verdict is for an amount greater than the offer, the usual rules of payment of court costs will apply. YOU SHOULD NOTE THAT THERE IS NO PENALTY IMPOSED ON A DEFENDANT WHO REJECTS A REASONABLE SETTLEMENT OFFER AND AGAINST WHOM THERE IS A JURY VERDICT FOR AN AMOUNT GREATER THAN THAT OFFER. In other words, as far as payment of court costs is concerned, the opposing party has everything to gain by making a settlement offer. You, on the other hand, risk paying additional court costs if you reject a settlement offer in this fashion and then do no better than that at trial.
This handout will explain how the money we obtain for you must be paid out when we receive it. Please read this carefully. If you have any questions, the attorney handling your claim will be pleased to discuss it with you. As your lawyers, we are obligated to pay out your settlement according to legal and ethical requirements. Where there are no requirements upon us, we will disburse your settlement according to our Contract for Legal Services and your directions.
Some or all of your medical bills incurred as a result of your injury may have been already paid by you, group insurance or medical payments benefits from your own auto insurance policy. If there is any amount still owing at the time of payout, we may have to pay these bills. The Contract for Legal Services, hiring this law firm, authorizes us to pay any remaining unpaid medical bills out of your settlement.
Even if you tell us that you do not want to pay unpaid medical expenses out of your settlement, we may be required to do so. North Carolina law (N.C.G.S. 44-49 and 44-50) says that any doctor or hospital who gives us medical records or reports, without charge, has a lien on your settlement for all unpaid bills (a lien is a legal hold on money in our trust account). Usually, there will be enough money in the settlement to pay all remaining medical bills, expenses, and liens or subrogation claims. (A subrogation claim is a right against you personally for money you receive in a settlement and is not a legal hold on the money in our trust account).
Sometimes there will not be enough money available from the party at fault. This happens when the party at fault does not have enough insurance to fully compensate you and has no other assets or money to apply to your claim. No lien for medical expenses can be no more than fifty percent of the total settlement, after subtracting attorney fees and expenses. This means that you may have at least one-third of the settlement, after subtracting attorney fees and expenses. This does NOT mean that you do not owe the doctor or hospital the unpaid balance of any charge! It only means that, out of your settlement, we are not required, by the lien laws, to pay all the doctor or hospital bills.
Most doctors and hospitals will charge us for copies of your records and for reports. These doctors and hospitals expect to be paid for rendering medical treatment to you and, even if you tell us not to pay them out of your settlement, they may take legal action to collect their fees from you. We urge our clients to authorize payments to protect credit ratings and prevent ill will between you and your doctors.
Usually, when your own insurance had paid some or all of your medical bills, there is no requirement to pay this back. This is always true of medical payments benefits under your automobile insurance policy. Sometimes, an employer will provide insurance coverage through a self-funded insurance plan, rather than by purchasing insurance coverage directly from a carrier. If that is the case, the employer may be entitled to repayment of the amounts it paid to cover your medical expenses. This is known as a “subrogation claim,” and is different from a “lien.” We will repay this amount out of your recovery, unless you specifically tell us not to! If you do not wish to repay the employer, we will pay that money to you. However, you are warned that the employer may take legal action against you to collect this money if it is not repaid. That risk is yours to take, if you wish.
MEDICARE, MEDICAID or WORKERS COMPENSATION
If any of your medical bills were paid by Medicare, Medicaid, or Workers Compensation, the law places a lien on your settlement requiring us to repay these amounts after subtracting attorney’s fees and costs.
1. If a doctor or hospital has not charged for records or reports, their claims become liens and they must be paid any unpaid portion of their bills out of your settlement, as long as the total payments to all such health care providers does not exceed fifty percent of the settlement after subtracting attorney fees and expenses.
2. If a doctor or hospital has charged for records or reports, no lien is created and it is your decision whether or not they will be paid anything out of your settlement. We will make these payments, unless you direct otherwise. If you do direct otherwise, we will pay the money directly to you, but you will still owe the doctor or hospital the amount of the bill, and the doctor or hospital may take legal action to collect the bill.
3. We will pay valid subrogation claims of employers or insurance companies, unless you instruct us otherwise. If you do direct us not to repay these claims, we will pay this money directly to you, but you will still owe these amounts to the employer or insurance company and the employer or insurance company may take legal action against you to collect this amount.
4. Medicare, Medicaid, Worker’s Compensation and certain other claims are liens on the settlement and must be paid out of your settlement. Neither you nor we have any choice in the matter.
5. Once we receive the settlement check or draft, we are required by law to deposit it in our trust account and write checks on the deposit only after the check or draft clears the bank. This may take 10 days or longer, depending on whether it is a draft or check and depending on whether it is drawn on an out-of-state bank or an in-state bank. After the deposit clears and before we pay out any money, you will have the opportunity to review the settlement and approve it in writing.