So you have been injured. You may have been injured by the act of another party, or by a condition that the other party created. An example of an act would be causing a car accident. Examples of a “condition” might be a defective product or a slippery surface on which you have fallen.
We call the party who caused your injuries the “at-fault party”. Let’s assume that the party who negligently caused your injuries carries liability insurance. I am going to generally explain to you how the handling of your personal injury claim could be expected to progress if you contacted me for a free consultation.
First, we meet and discuss your injury accident claim at no charge to you. Then you can decide whether you want to retain me as your personal injury attorney and I can decide whether I can represent you on your personal injury claim. It is at this point that we discuss what to do about the damage to your car.
If you want to retain me as your personal injury attorney, we will need to sign a written agreement. The written agreement will provide for an attorneys fee that is a percentage of the money damages that are recovered, payable when the money is paid by or on behalf of the at-fault party. You will not have to pay an attorney fee in advance. If I am representing you, there is no attorney fee paid unless we first recover money to pay the fee.
Once I have been retained, I will start working on your personal injury claim immediately. There are several things to do. Normally, I will immediately contact the providers of any available insurance coverage. That may include your policies of insurance, but it would certainly include insurance carried by the at-fault party. I might contact the at-fault party directly, especially if there is no insurance.
I will also start gathering information immediately. Recorded statements may have to be taken from witnesses. Photographs may have to be taken or physical evidence collected and preserved. Police agencies may have to be consulted and reports obtained. If this evidence isn’t gathered early, it may be lost forever. If the at-fault party is insured, the insurance company will usually start gathering this information at day one - within the first few days following an auto or truck accident. The at-fault insurer invariably will not share that information. That is why it is important to have an experienced personal injury accident lawyer working for you as early as possible, to protect your rights.
It is important to not be complacent about gathering information. I have often had prospective clients tell me that the insurance company had gathered all the evidence, accepted responsibility for the loss, and that there should be no problem settling the claim. All of that is true unless it turns out later that there is a problem settling the claim. That often happens when we ask them to pay money for the full value of your personal injury claim, which is often several months down the road when witnesses can’t be found or can’t remember, and only the insurance company has any of the information.
We start gathering information immediately to have it if it is needed, which might be after the opportunity to get it is gone forever. The at-fault insurance company will not pay
Clients often ask me when and how we will settle. Often I cannot tell them until I have concluded my investigation of their personal injury claim. There are normally two things that we want to have happen before we attempt to settle. The first is that we have gathered all of the information and evidence, and have concluded our investigation. The second is that you will have either recovered from your injuries or your injuries will have stabilized and can be expected to remain so indefinitely.
If we settle before you have finished the treatment for your injuries, we might fail to recover all of the money necessary to pay for the treatment that you require. Sometimes it is necessary to resolve a personal injury accident claim based on an estimate of the cost of future treatment. But if we attempt to settle before all of that information is available, the insurance company will suspect that there is something wrong with your claim and the amount of money that it is willing to pay in settlement will reflect that belief.
Virtually all states have statutes of limitations that bar claims that are not either settled or filed as a lawsuit within a statutorily required period of time. In Washington most negligence claims must be settled or a lawsuit commenced within three years of the injury or its discovery, or recovery is barred. In Oregon, two years is a frequent limitations period. However, each personal injury claim must be individually evaluated to determine the applicable statute of limitations, which can vary depending on whom the claim is against and the circumstances of the claim.
Once the injury accident claim is ready to settle, you will have a choice that you will continue to have until the claim is concluded. First, you can to have me settle the claim. Or, second, you can ask me to file a lawsuit to have a jury decide on the amount of money damages that you are entitled to recover.
I will always tell you what I think you should do. Most cases settle before any lawsuit is filed. Most lawsuits that are filed are settled before trial. I will always tell you what I believe should be done. But, at the end of the day it will always be your decision.
Assuming that we decide to attempt to settle before filing suit, I will put together a letter to the insurance company explaining your claim and setting forth arguments for the payment of a specific sum of money in full settlement of your claim. This will be submitted to the insurance company in a settlement demand package. You and I will first meet and agree on the sum that will be demanded for a full settlement of your personal injury claim.
However, I always want all negotiations to begin with our settlement demand package; I will not wait for an insurance company to commence the negotiation.
The results of my investigation and some of the actual evidence gathered will be included in the settlement demand package. Almost certainly all of the treatment records for your injuries will be submitted in the package. Sometimes there are other reports by expert consultants, such as safety or accident reconstruction experts whom we have retained, that are submitted.
Usually the insurance company is given 30 days to respond. The insurance company will expect that we will be willing to negotiate. We will need to take that into consideration in making your settlement demand.
There will come a point in the negotiations when you will have to tell me whether you want to settle or file suit. I will tell you what I think should be done. But I will not be able to decide for you.
If we settle, you will normally have money within 14-30 days. My fee is paid out of that money. Normally the cost of your treatment is paid out of that money. Normally I don’t take cases unless I feel good at the beginning that my client will walk away from the case with money in hand.
However, unless there is a settlement, there is no guarantee of the payment of any money for anything. There is always an at least remote risk of no recovery in every case unless and until it is settled. That risk may vary from case to case, but it always exists and doesn’t go away unless the case is settled or a court verdict is paid.
Again, I usually don’t take any case unless I feel from the start that you will recover money. If I feel that the case is risky, but I am willing to take it anyway, I will tell you that when you retain me, when we first meet. We share in the risk and the decision whether or not to take the risk. If it is going to be necessary to file suit, I can go through what I expect that will involve at that time. Normally, I will go through it with you before there is any settlement if it will have a bearing on your decision whether or not to settle.
When the money is paid, it usually comes to me in the form of a check or other instrument of payment. It is usually made payable to you and I. That check is deposited in my trust account, in trust for you. When it clears, I write a trust check to you, to me, to your health care providers for any unpaid treatment, and I may have to write a check to your insurance company to pay it back for treatment or lost earnings that your insurance company has paid pending settlement. Sometimes I have to reimburse Medicare if they have paid. Insurance companies and governmental benefit providers that have paid for your treatment, lost earnings, or disability pending settlement are frequently entitled to repayment from a settlement paid by another insurer that is primarily liable for your loss.
That is a sketchy overview of how personal injury claims often progress to settlement. Until then, I shall look forward to meeting with you, protecting your rights, and negotiating the settlement that you deserve.