INTRODUCTION AND DISCLAIMERS

This FAQ file is a general response to questions that are often asked, especially by someone who’s had the misfortunate to suffer injury in an accident, be it a car crash, a workplace injury, or other type of circumstance where someone else was at fault.  

The law differs in every jurisdiction, and you should not rely on any opinion except that of an attorney you have retained, who has a professional duty to advise you after being fully informed of all the pertinent facts and who is familiar with the applicable law.

Often a case may turn on a fact which did not seem important at the beginning of a case, which is one reason it is especially important to have professional representation as soon as possible after you have been injured.

The following information is very general.  The legal rules governing insurance coverage and liability of negligent parties very greatly from state to state; the comments herein should be taken as a starting point, not a final answer.

Finally, these comments include the opinions of an attorney who frequently represents injured parties.  Other experienced attorneys may look at some things differently, so this is not meant as the final word.  This article is not meant to be a neutral view of the law, but rather a guide to protecting your own interests.  

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WHAT SHOULD I DO FIRST?

First, get medical treatment.  If you were seriously hurt, you may have been admitted to a hospital.  Once your condition has stabilized, there will be plenty of time to deal with lawyers and insurance.  When you’re out of the hospital, you should call your regular family doctor, so he can help coordinate any followup treatment, and so his records will reflect your injury.

If you have any pre-existing injuries or ailments, you should give any doctors, as well as your lawyer, the full history.  The insurance companies participate in an "Index Bureau" which tabulates the names of everyone who reports or claims injuries, no matter how minor, so it's much better for the people on your side to know about these things from you, up front.

Second, if you were in an auto accident, call your insurance company to report the accident.  But DO NOT AGREE TO GIVE A RECORDED STATEMENT TO ANYONE!  You can and should politely decline to have any discussions with the other driver or any insurance companies.  If anyone tries to contact you, just tell them to contact your lawyer.  This is vitally important.  If you talk to the other side, they may twist your words around.  Even such innocent conversation as "How are you?" "Not too bad" could be used against you.

Finally, keep copies of every piece of paper you get that has anything at all to do with the accident.  It's also very helpful to get photos of the damage, both as to the car or any physical evidence of the accident, and of any bruises, stitches, casts, etc.  Keep copies of all receipts related to your medical treatment: pharmacy costs, travel for treatment, even parking at the hospital.  Those will be important evidence of your expenses and trouble.

HOW DO I FIND A LAWYER?

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Personal injury cases are almost always handled on a contingent fee basis.  A contingent fee means that the attorney's fee depends on recovering money for you.  The amount of the fee is figured on a percentage of the money recovered.  In many areas, 40% is considered standard.  In cases involving death or very serious injury, a lower fee may be appropriate.  In some states, there are legal rules regulating the amount of the fee.

In addition, costs of litigation, which can be substantial, are advanced by the lawyer, and will be reimbursed from the recovery.  Sometimes the percentage fee will be figured on the gross fee, before case costs are deducted; other times the fee may be a percentage of the net recovery.  Depending on state rules, the firm's policies, and the nature of the case, you may or may not be obligated to repay the out-of-pocket expenses if there is not a recovery.  But in any case, the value of the attorney's time investment greatly exceeds the expenses.  In any event, you should make sure you understand and agree with the terms of your fee agreement.

The contingent fee system allows victims of disabling injuries, who are often hard-pressed to meet their basic needs, to afford the services of highly skilled attorneys.  It has been called the "poor man's key to the courthouse."   

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There are a wide variety of resources that are available to compensate you for your losses.  Part of your lawyer's job is to identify every possible source and make sure each one pays what it should.

AUTOMOBILE INSURANCE

To begin with, in an automobile accident, your own insurance policy may provide "first-party benefits," sometimes called PIP (Personal Injury Protection) or No-Fault benefits.  This could include payments for medical expenses, lost earnings, and damage to your car (if you have collision coverage).  These should be paid promptly after your insurance company has gotten proof of the losses.  But insurance companies do not always put your interests first, so it is a good idea for your lawyer to handle these items.  Generally, an attorney will not charge extra for such services, because he has to keep track of your losses anyhow.

To help your attorney, try to get your entire policy together for your first meeting: the main booklet, the bill, the declarations sheet in effect on the accident date, and any riders or extra "endorsements."

HEALTH COVERAGE

Your regular group health plan, be it Blue Cross/Blue Shield, an HMO, or whatever, will also be available.  Where both automobile and group health coverage is available, the question of which has the honor of paying first is decided by COB, or "Coordination of Benefits" provisions.  State law, or options in your automobile insurance, may decide this question.  If you have Medicare, federal law provides that any other source of private insurance has to pay first, and Medicare will only cover expenses when other sources are exhausted.

WORKERS' COMPENSATION

If you were injured on the job, you should receive full coverage of medical expenses, plus wage compensation payments, from your employer's workers' compensation system.  Each state has a completely separate agency to resolve disputes over this type of benefit, rather than the regular civil court system.  Unfortunately, workers' compensation laws generally make it impossible to sue your employer for additional damages, such as pain and suffering.  But other parties may have additional liability.  See "I was hurt on the job," below.

LIABILITY INSURANCE

This is what is called "third-party" coverage: it actually insures the other guy, to defend it from claims and lawsuits. Whether that other guy is a careless driver, a store owner, or a manufacturing company, they may have an "adjuster" who tries to cultivate a friendly relationship with you.  Your lawyer should handle all communication with these people, because they are only interested in getting rid of your claim for the smallest amount of money possible.

Many people are unaware that homeowner's insurance usually provides general liability coverage for individuals.  They may know that it will cover the homeowner if someone falls down the stairs in their house, but it will also cover the homeowner and his family if a claim is made against them for negligently hurting someone away from home, in a non-automobile setting.  For example, at the bowling alley, if you carelessly drop a bowling ball on my foot, your homeowners' insurance will protect you from my claim. This coverage could be available in cases over Gun Accidents and Sports Accidents, for just two examples.

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The most important difference between "first-party" and "third-party" coverage is that under "first-party" coverages, you are entitled to benefits from your own insurance company, regardless of who was at fault.  But since third-party coverage actually insures the other party, you have to prove that party was "at fault," or legally liable, before you can recover.  The advantage of "third-party" liability is that you are not limited to "economic" damages such as medical expense or lost wages.  You can also recover for pain and suffering, mental anguish, loss of life's pleasures, and other intangible or "general damages," depending on what is recognized in your state.

Motor Vehicle Accidents

In an automobile accident, the state's negligence law and rules of the road will determine fault, based on the facts established by witnesses.  The basic concept of negligence is whether a person met the standard of conduct for a "reasonable person."  If not, that person was careless or negligence, and can be held liable for resulting damages.  Many of the rules applying in traffic cases are a variation on the "assured clear distance" rule, which simply means that every driver is expected to handle his vehicle so that he will not run into anything in front of him.  Combined with the concept of the "striking vehicle," this means that the driver who ran into another car needs to have a pretty good explanation why he couldn't stop or swerve to avoid the collision, or else he'll be found responsible.

For more information about automobile accident liability, see the Legalview page on this topic: Automobile Accidents

Did Anyone Get A Ticket?

One common myth is that the driver who gets a citation from the police is automatically liable.  In reality, while lawyers and insurance adjusters will talk about this issue, often a traffic ticket is not even admissible when a case actually comes to trial.  If the other guy got a ticket, that does not mean it will be open and shut; if you got a ticket but feel that you were not at fault, your lawyer should help you fight the ticket, and you may still have a good claim.

Unless the police officer actually witnessed the accident, most of his knowledge of the accident is hearsay, and so are the officer's conclusions about who was responsible for the accident.

Drunk Driving?

If a driver had been drinking, to the point of impairment, it will be very difficult for that driver to convince anyone that he was not at fault.

If the accident was caused by a drunk driver, there may, depending on the facts and the state law, be a "dram shop" claim, which means that a bar which served a visibly intoxicated person can be liable for injuries caused by that person (and in some states, even for injuries to the drunk himself).  In such cases, a prompt, professional investigation is crucial, to locate all witnesses to the drinking. More information about Liquor Liability is on this site.

Products Liability

If injury was caused by a product -- like contaminated food, or a machine which lacked a safety guard -- the manufacturer and seller may be liable under "products liability," which does not require proof of negligence or fault in the traditional sense, but just that the product was defective.  Probably the most important thing in these cases is to obtain the product and keep it safe.

Property/Premises Liability

If you were hurt in a fall, whether from a slippery floor or a loose stair-step, then the owner of the property might be liable if he didn't meet his duty to maintain a safe property. These cases are highly dependent on the facts.  You should be careful to save the shoes you were wearing, and be able to reconstruct in your mind the exact sequence leading to your fall, the weather and lighting conditions, how you know what caused your fall, and any evidence to show that the property owner was aware of that condition and how long it had existed.  You should take photographs of the scene as soon as possible, before conditions change.

Here at Legalview, there are pages dedicated to these types of claims, for Premises Liability in general, and Slip and Fall cases in particular.

Government Liability

In some states, government agencies may be liable for highway defects and other injury-causing conduct; they have a greater or lesser immunity, depending on state law.  

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Don't wait to find out the hard way.  The "statute of limitations" refers to legislation that requires that a lawsuit be filed within a certain amount of time after you are injured. Some states have a two-year period for negligence injury claims; the time period in other states may be longer or shorter. Insurance policies sometimes require that suit be filed within one year of a loss.  Some statutes which allow claims against government agencies require a formal notice very soon after the accident, perhaps within three months.  Because investigation and research is needed to identify all possible defendants and theories of recovery, it is important for your lawyer to get started as soon as possible.  

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Your auto insurance policy should have Uninsured/Underinsured Motorist coverage, unless you waived it.  This is a unique combination of first-party and third-party coverage.  It provides benefits from your own policy, up to the specified limits, which are based on the amount you could recover from the other party.  So you must show both liability of the other drive, and resulting damages, and this coverage usually applies only to your physical injuries and associated expenses.  Generally a special private arbitration procedure, rather than a court lawsuit with a jury, is used to decide disputed claims under this coverage.

In recent years, more states have "reformed" their laws to allow people to save a few dollars on their premiums by waiving this coverage.  Because uninsured drivers are all too common, hopefully you have full coverage.  It's worth it.  I recommend that everyone have limits of at least $300,000, with full UM/UIM coverage.

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Many factors go to determine the ultimate settlement value or jury verdict in a given case.  These factors include the seriousness of the liability, the extent of physical damage to the vehicles, the credibility of witnesses, the personality of the parties, the limits of available insurance, the law of the jurisdiction, the region (city juries are reputed to be more generous).  For a fuller discussion of these factors, see How Much Is My Claim Worth?

On an initial meeting with a new client, most responsible attorneys will decline to give a dollar estimate.  It is impossible to predict how long or difficult recovery from injuries will be, what long-term impact there may be on earnings, what the liability picture will look like when all the facts are in, or what insurance coverage is available.  The attorney knows that if he gives a "best case" figure, he may create unrealistic expectations; but if he gives a conservative number, the client may be turned off and go elsewhere.

If you have suffered a serious injury, you may, and probably should, meet with several different attorneys.  You may find them very anxious to "sign up" your case, and they may be tempted to give you an optimistic estimate of what you could expect to recover, in order to persuade you to retain them.  But there is no relationship between an attorney's ability to obtain the best possible result, and that attorney's initial estimate.  As stated, because it is impossible to give an honest estimate at the beginning of a case, many of the best attorneys will not do so.  The best course is to select an attorney who you are comfortable with, who gives you a feeling of confidence, and who comes well-recommended.  

SHOULD I TRY TO DO IT MYSELF?

Obviously, a lawyer is not going to suggest that you dispense with his services, any more than a doctor is going to recommend that you diagnose your own illness, or a barber will tell you to cut your own hair.  But most lawyers in this business have seen enough cases where claimants proceeding without counsel have made damaging statements, lost important evidence, or undercut their bargaining position.  In short, it's a mistake to think that you can always fall back on going to a lawyer if you don't get a satisfactory offer; it may be too late by that time.

The insurance company adjusters are very skilled and experienced in trying to minimize the value of a claim or defeat it completely.  They love "D.I.Y." claimants.  They know they have a good chance to settle the claim for less than half of its real value.  In short, the additional value that can be recovered by an attorney, who can navigate the maze of interlocking coverages and identify all potential sources of recovery, will more than cover the 40% fee.  

WHAT'S THE BEST ADVICE?

If I haven't said it often enough, see a lawyer.  Only your own lawyer will know all the facts, and be familiar with the local law and procedures, to make sure that your rights are protected.  This web site has tools to help you find a lawyer who can handle your type of claim, in your state.  The site has a broad collection of legal information.  But no matter how much research you do on the Internet, there is no substitute for your own lawyer.  And one final word: if you have a lawyer, but are not satisfied with the representation you're getting, you can look for another lawyer at any time.

Again, this FAQ file is offered for general information. Because legal rules are different in each state and locality, any of the rules and comments described in this file may or may not apply to your situation.