Anatomy of Personal Injury Claim
We want to break down the process of a personal injury claim so that you can understand what happens to a case from the time you consult with your lawyer to the time a settlement is made or a trial has been concluded. Since this area of the law involves people who have had little or no experience dealing with attorneys prior to their injuries, there are often misconceptions about the practice and the legal system that surrounds it. This anatomy of a personal injury claim highlights the typical steps in a case, which you as a client must take note of before tackling your case.
The four stages of a personal injury case are:
1. The gathering of facts
2. Firming up a settlement package
3. Negotiations, settlement or trial
4. Disbursement
1. Gathering of Facts
A personal injury case begins with the collection of basic types of information. This is for the purpose of the attorney handling the case. The facts gathered are supposed to give the attorney a comprehensive overview of the case so that he can strategize for you and help bring about maximum compensation for you in the least amount of time. During this stage, you as the client must cooperate with the personal injury attorney, as you are the attorney’s primary information source.
Certain information in crucial to this stage, such as:
- Cause of injury. Naturally, your attorney must know the cause of your injury. He does this by gathering information from witnesses to the accident, as well as the police who made the accident report. He may even visit the scene of the accident.
- Insurance information. Insurance coverage can be granted by many sources depending on your type of injury. Determining the type of coverage applicable to a particular case can get quite confusing, which is why you must get an attorney who is familiar with the different types of coverage, namely liability, motorist and medical expense coverage. He will be responsible for sending appropriate insurance carrier letters to the insurance companies. These will indicate to the insurance carriers that you have obtained legal counsel for your case.
- Medical records, statements. Any medical records, bills and statements of account that you incurred after the accident are necessary to your attorney so that he can use these to respond to claims by the insurance company. For this reason, an injury victim needs to keep his attorney updated on his medical procedures and doctor visits.
- Wage loss. Your attorney will request your employer to complete a report indicating the time you missed from work and the corresponding loss in wages.
- Damages. Other damages are other related to losses you have suffered due to medical expenses and loss of income. For example, a permanent injury resulting in a victim’s inability to perform certain tasks may correspond to a lessened earning capacity claim. Since each case is unique, your attorney must determine that every possible avenue of recovery is explored.
The length of this stage lasts until the client has completed medical treatment. In cases of a permanent injury that requires continued treatment, the stage continues until the client reaches maximum improvement. If a settlement is made, the injury client must sign a release barring him or her from making further claims against the liable party and their insurance carriers.
2. Preparing a Settlement Package
After all information has been gathered, your attorney will prepare a settlement package to be presented to the insurance company concerned. The goal of this package is to present your case clearly to insurance adjusters who will assess your case.
The settlement package includes:
- A narrative of the accident
- A statement on the legal basis for claiming liability against the insurance carriers of the party responsible for the injury
- An explanation of the injury, the treatment, the prognosis
- A statement of the client’s damages (medical bills, lost wages, pain and suffering, inconvenience)
- A settlement demand
The package must be comprehensive, and include copies of all pertinent records such as medical records, medical bills, photographs and other information. The settlement package ought to indicate that the client and the attorney are willing to go to court in view of a rejected settlement.
3. Negotiations, Settlement or Trial at Court
The time taken up by insurance companies in reviewing a settlement offer is indefinable. It may take them weeks, even months, to come up with a counter offer. If the review time stretches for too long, your attorney can pursue the insurance company, and may even agree to the insurance company’s intent to bring the matter up to trial. In such cases, especially when an offer is made by the insurance carrier, the client must consult his attorney on the most appropriate response. A series of offers and counteroffers may come into play before a settlement is achieved.
In cases where a settlement cannot be reached, an attorney will need to advise whether or not the case merits filing a lawsuit. This has been an all-too-common outcome, especially with so many insurance companies skimping on settlement offers. If a settlement case ends up going to trial, a “discovery” process must be completed by both the liable party and the plaintiff (the injury client). The discovery involves each side telling the other any and all facts that are pertinent to the case. During this time, the plaintiff will be made to respond to interrogation, give a deposition, and even provide documents.
4. Disbursement
Disbursement involves the insurance company sending you a settlement check accompanied by a Release after you have agreed to the settlement offer or obtained a jury verdict or appeal. The check is made out to both you and the attorney, and must be endorsed by you, the client, so that the check can be deposited into the attorney’s trust account. Upon clearance of the check, the expended costs on behalf of the client are computed. These costs consider the attorney’s fee and whether any health care provides have liens against the fund.
Any outstanding balances due health care providers without liens may be paid out of the settlement, or as advised by your attorney, thereupon a disbursement sheet is prepared by the legal staff. You must review and sign the disbursement sheet and release before you can finally receive the proceeds from the settlement.
