The Anatomy of A Personal Injury Case

A personal injury law practice differs from many other types of law practices in that most people with personal injury claims have had little or no exposure to attorneys before their injury. In this part of my practice, I have found common misconceptions about how the legal system works, and about what people should expect when pursuing personal injury claims.

Here is a brief outline of the steps taken in the preparation and presentation of a typical personal injury claim. This outline describes an automobile accident case, but medical malpractice, defective products, and other personal injury cases follow a similar pattern.

The outline assumes that the claimant has an attorney, but the same principles would apply to individuals who decide to handle their own case.

A typical case has four stages:

Stage 1: Information Gathering
Stage 2: Preparing Settlement Package
Stage 3: Negotiation and Settlement/Trial
Stage 4: Disbursement

Stage 1 – Information gathering.

There are certain basic types of information that need to be gathered at the start of a personal injury case. Your attorney needs a comprehensive understanding of the case in order to advise you regarding the strategy that will bring you the greatest recovery in the least amount of time.

The main categories of information your attorney will need are:

  • Basic Facts: Your attorney will need to know what happened to cause your injury. This sort of information is gathered from interviewing you, the investigating police officers, and witnesses to the accident. Usually it makes sense for the attorney to visit the scene of the accident to get a better feel for what happened. Your attorney will also get a copy of the police accident report.
  • Medical Bill and Records: Your attorney will also request medical records and bills from the hospital and doctors you saw after the accident, and pre-injury medical records in order to respond to insurance company claims that your symptoms are not the result of the accident, but rather a pre-existing condition.

    The process of collecting records will continue until you have finished treating for your injuries. It is essential, therefore, that you keep the attorney informed of your progress and doctor visits.

  • Insurance Coverage: There are many potential sources of insurance coverage from which you might be able to receive compensation for your injuries. The coverage types pertaining to automobile accidents fall into three categories: liability coverage; uninsured/underinsured motorist coverage; and medical expense coverage (also known as medical payments coverage or "med pay"). Determining which types of coverage apply to a given case can be quite complicated. Suffice it to say that sources of potential coverage can be found in some unexpected places. Be sure your attorney is aware of every policy that might apply.

    Your attorney will send the appropriate insurance carriers letters to inform them that you have retained legal counsel. The purpose of these letters is to establish contact with the insurance companies and ensure that they communicate with the attorney, not you.

  • Lost Wages and Other Damages: If you have missed time from work because of your injury, your attorney will request that your employer complete a form stating the amount of time you missed and the amount of wages you lost. In addition, you and your attorney will need to determine whether you have suffered losses in addition to direct medical expenses and lost wages. For example, if you have a permanent injury that will prevent you from doing certain tasks, you might have a claim for lessened earning capacity. There are other types of damages for which you might be entitled to compensation, and each case is unique. You will need to work with your attorney to ensure that all avenues of recovery are explored.

The success of this first stage of a personal injury case depends in large measure on the client cooperating with the attorney. Because this is your case, you are the attorney's best source of information. Good communication is important at this stage of the case, and will remain so throughout.

Stage 1 typically lasts until you have finished treating, or, if you have a permanent injury that will require treatment for some time in the future, until you reach maximum medical improvement and your doctors have determined what your future needs will be. In general it is not feasible to make a settlement demand until the completion of treatment or maximum medical improvement because, when you settle, you will be required to sign a release that will forever bar you from making any further claim against the persons responsible for your injuries or against their insurance carriers.

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Stage 2 – Preparing settlement materials.

Once your attorney and staff have gathered all of the information about your injuries and your damages, they will prepare a settlement package for the insurance companies from whom a recovery is sought. This package will include a narrative description of your accident, a discussion of the legal basis for claiming liability against the carriers' insured, an explanation of you injury, treatment, and prognosis, a statement of your damages, and a settlement demand. The damages statement will include specific items of economic loss such as your medical bills and lost wages, often referred to as "special damages," as well as a claim for the pain, suffering, and inconvenience suffered as a result of your injuries. These intangible elements of damage are called "general damages", and often make up the largest part of the settlement demand.

In Stage 2, the goal is to present your claim to insurance adjusters who are trained to evaluate injury cases and whose job is to be skeptical. Considerable effort will go in to making the package comprehensive and easy to read, with copies of all medical records, photographs, bills, and other information the adjusters will need to evaluate the case. A properly prepared settlement package will demonstrate that you and your attorneys are willing and able to go to court if a settlement cannot be reached. It is no secret that insurance companies exist to make a profit, and no matter how meritorious a claim may be, the insurance companies will not pay unless they know they will be taken to trial by someone who knows how to present a case.

Stage 2 lasts approximately several weeks or months, if the attorney is missing information needed to complete the settlement package. The attorney requires a few days to prepare the package. I then send a draft of it to you for your review. You call me and let us know if it is accurate. If so, we send it to the insurance company.

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Stage 3 – Negotiation and settlement/trial

Insurance companies differ in the amount of time it takes them to review the settlement package and make a counter offer. Some take weeks, others months. If they do not call within two to three weeks, we call them to check the status of their review. Often times your attorney and the insurance companies exchange several phone calls before an offer is made. Sometimes the insurance companies will make no offer at all based on their determination that their insured would have a good chance of prevailing at trial. This probably happens more often in Texas than in most other jurisdictions because of certain Texas laws favoring defendants. In automobile accident cases, the most important pro-defendant law is the doctrine of comparative negligence which can completely bar recovery against a negligent defendant if the plaintiff was more than 50% at fault. This rule is well-loved by insurance companies and is often overstated because of a common misconception that it bars recovery whenever the plaintiff's negligence contributes to the accident "even in the slightest degree."

If an offer is made, you will need to discuss it with your attorney to determine an appropriate response. Typically, there will be a series of offers and counteroffers before it can be determined whether a settlement will be achieved. Many people find this to be the most frustrating stage of the process. Lead by insurance industry advocates and tort reformers to believe that the United States is in the grip of a litigation explosion and that juries are running out of control with huge verdicts, personal injury claimants quickly learn the truth. Juries, particularly in Houston and Dallas, have become very conservative in the amounts they will consider as being “fair and reasonable” compensation. A favorite saying of mine is that Harris County jurors have a high tolerance for other people's pain. We encourage people with injuries to not be discouraged, but it is also important to realize that the settlement value of any case is ultimately measured by what a jury would award, not what the plaintiff believes he or she is entitled to receive.

If settlement is not possible, your attorney will advise you whether or not you should consider filing a law suit. More and more cases are going to litigation because the insurance companies have become so conservative with their settlement offers. Even so, most cases still settle before trial.

The decision to go to trial is not one that is made lightly. To go to trial, two issues must be clear:

  1. Liability - meaning that it is clear that the other party caused the accident; and
  2. Damages - meaning that you must have incurred significant expenses as a result of the accident.

An example of liability without damages:
You are rear ended by another vehicle. You hit your head on the steering wheel. Your bumper is knocked out of alignment. The rescue squad is called by a witness. A paramedic examines you and determines that you have a simple bump on your head. You do not need to go to the hospital nor do you require any further medical treatment. Although scared out of your wits by the other driver's carelessness, you have no permanent injury.

While you have a property damage claim, you probably do not have a viable personal injury claim. Although it may be clear that the other driver is liable, you did not sustain any damage to your person that required you to spend money.

An example of damages without liability:
Your vehicle and another vehicle collide. You and the other driver are seriously injured and have to be transported to the hospital. There are no witnesses to the accident, and it is not clear to the responding police officer who caused the accident. It will be your word against the other driver's as to who was responsible. You have an extended hospital stay, months of therapy and lots of time off work. Your medical bills and lost wages are substantial.

With a situation like that we would be reluctant to go to trial unless we had some way of proving that the other driver was totally responsible for causing the accident. The occurrence of an accident does not mean that the defendant is negligent. The plaintiff's burden of proof is higher than that.

Some important things you need to be aware of about going to trial:
Trial preparation takes a lot of work. Most of the work is done in what is referred to as "discovery." During discovery, each side is required to tell the other the factual basis for their case. You will be required to answer interrogatories, produce documents, and give your deposition. In fact, any trial attorney will tell you that the outcome of a trial usually depends more on what happens before the parties get into court.

The plaintiff has the burden of proof on most issues. This burden can sometimes be more difficult than it seems. Parties are often frustrated by how difficult it can be to prove facts that are seemingly beyond dispute. For example, the police accident report is usually not admissible because it is hearsay. If it is necessary to prove something in the accident report, the officer who prepared it will need to testify.

Your medical records are rarely admissible (except where medical malpractice is an issue in the case). The opinions of your doctors must be presented through their testimony before the court. Bringing doctors to court is often the most expensive part of a personal injury trial.

The jury will never hear that an insurance company is involved in your case. It will appear to the jury that it is you against the other driver. Defense attorney who represent the insurance companies will make the other driver appear to be someone who just made a mistake and that it would be unfair to make the other driver pay thousands of dollars for making an honest mistake.

Juries are unpredictable. Like most personal injury claimants, most jurors have had little or no exposure to the civil justice system. They find it easy to believe, therefore, when the tort reformers tell them that plaintiffs' lawyers are reaping huge profits from frivolous lawsuits and that many plaintiffs are treating the civil justice system as if it were a lottery.

We had one juror tell us recently that they did not.

Anyone who has been through the process knows that there is no profit in bringing frivolous claims. Unfortunately, perceptions are sometimes more important than reality. Once the jury returns a verdict, the losing side is entitled to appeal to the first level, in Houston, either the 1st or 14th Courts of Appeal. The Supreme Court, however, takes relatively few cases, so this right of appeal is rather limited in Texas.

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Stage 4 – Disbursement

Once you have accepted the settlement offer or obtained a jury verdict and prevailed on appeal, the insurance company will send your attorney a Release and the settlement check. Typically the check is made out to you and your attorney. You will need to endorse the check so your attorney can deposit it into the attorney's trust account. Once the check has cleared, the attorney's staff will figure out what costs have been expended on your behalf, whether any health care providers have liens against the fund, and what your attorney's fee is. If you have any outstanding balances with health care providers without liens, your attorney will ask you if you would like to pay them out of your settlement. The attorney's staff will then prepare a disbursement sheet for your review. Once you have signed the disbursement sheet and the Release, you will finally receive your settlement proceeds.

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