What Can Happen Prior to Litigation of My Case?
Many of our clients are surprised to learn that they might be able to settle their cases before they even file their lawsuits. In fact, a significant percentage of personal injury cases are settled during the beginning stages of the case. This is possible because part of the job of a personal injury lawyer is to negotiate with insurance companies, both your own and the company or companies for the other parties involved. This type of quicker settlement is most likely when there is little or no question that the other driver is liable for your injuries, such as when the driver has admitted responsibility, or when he or she got a ticket. It may also happen when liability is still in question, but your injuries are especially severe.
During the pre-litigation process, your law firm verifies that the liable person or people have insurance coverage, and determines whether your own insurance policy provides coverage for the accident. Your lawyer will also investigate the facts surrounding the accident, reviewing the police report, interviewing the witnesses, and inspecting the scene of the accident in order to get the best possible information on how the accident occurred and who is at fault. And he or she will also review your current and prior medical records, to prove that your injuries stem from the biking accident (or other type of accident that you experienced) and understand how they relate to any preexisting medical condition.
Once your law firm has done all of this, he or she can begin to determine what your legal claim may be worth, financially. This is generally expressed as a range of values (such as $10,000 to $20,000), because of the uncertainty of settlement negotiations and trials. But rest assured that your lawyer will never settle your claim for less than it is truly worth.
At some point during the course of your medical treatment, your lawyer will demand a settlement from the insurance company, in an effort to get the compensation you are entitled to without a formal lawsuit. Usually, the insurance company will respond with either an offer to settle or a request for additional information. That additional information may include copies of MRI films, tax returns, records of a physical examination of you by a doctor of your choosing or other information the insurance company feels is important in understanding your case. Once it has all of the necessary information, it will be in a position to make a settlement offer. Your lawyer will notify you of this offer so that you can discuss it and determine whether you find the offer acceptable.
Sometimes, but not often, the parties will agree to mediation before continuing to litigation. The mediation may come at the suggestion of either the insurance adjuster or your own lawyer. Mediation allows both sides to present the relevant facts of the case and the extent of the costs and damages to an independent third party, a mediator, who will work to help them agree on a settlement. These independent mediators are often retired judges or people with special court certification as mediators, so they should have experience with the laws and issues that are important in your case.
If no settlement is reached at mediation, the case is free to proceed to litigation. Any failure to settle at mediation will have no effect on your right to continue your case.
The Case Settles
If a settlement is reached, either through negotiation or pre-litigation mediation, the insurance company will send a check for you. They will also send a legal document called a release for you (and if necessary, your spouse) to sign. By signing the release, you relieve the insurance company and the party who is liable for your injuries of any further obligations or payments related to the injuries and damages from the accident. You must sign this release in order to collect the settlement.
Your law firm should have a trust account, which holds money that has been entrusted to him or her but belongs to clients. Once the settlement funds clear through this trust account, your lawyer will prepare a settlement statement or closing statement for your signature. This is another legal document, which sets forth the total amount of the settlement and any deductions for lawyers’ fees and costs, or any medical bills or liens that should be paid from the settlement. You will have the opportunity to review this statement, and your signature will authorize the law firm to send you your settlement funds. Once you receive the proceeds from the settlement, your case is successfully concluded.
Follow Your Doctor’s Orders!
Following your doctor’s recommendations will help you recover as well as possible, but it will also help your case. That was underscored by one trial involving a woman who was rear-ended by another driver while she was parked behind a stopped school bus.
After the crash, which was obviously the defendant’s fault, the plaintiff was taken to the hospital with complaints of back and neck pain. After taking X-rays and examining the plaintiff, the emergency room doctor instructed the plaintiff to “follow up with your medical doctor if you continue to have problems.”
The next day, the plaintiff still had back pain. She called her chiropractor and received treatment for her crash-related injuries. At trial, the defendant argued that the plaintiff did not follow her doctor’s orders because she saw a chiropractor rather than a medical doctor.
The jury returned a five-figure verdict for the plaintiff, but reduced the award by several thousand dollars because she saw a chiropractor rather than a medical doctor. Fortunately, the judge corrected the jury’s decision and awarded the plaintiff the full original amount. (Florida judges may not do this.) However, if the judge had not done this, the woman’s failure to follow the exact recommendation of her doctor would have resulted in a verdict that penalized her for it.