You've Got Questions, We've Got Answers
- Check yourself and your passengers for injury, and call 911 if you are injured.
- Get out of the road.
- Get out of your vehicle. Use the sidewalk, or stand far away from the edge of the road.
- Secure a copy of the police accident report.
- Collect as much evidence as you can yourself.
- Seek medical attention. Make sure the medical professionals who treat you make note of:
- The date of your injury
- How the injury occurred
- Diagnosis of your injuries
- Short-term and long-term prognosis
- Any medications you’ve been prescribed
If additional medical visits are required, make sure that your medical professionals document:
- Any scarring
- Temporary or permanent disability
- Ongoing pain management plans
- The risk of potential future injury or complications
- How to Pay for Medical Expenses:
- Your health insurance will cover your medical expenses, regardless of who is at fault.
- Your auto insurance policy will cover your medical expenses if you have “Med-Pay” or “PIP” coverage.
- Even if the other driver is at fault, you or your insurance will initially have to cover the cost of your medical treatment.
- If you and your attorney settle with their insurance company out of court, or if you win a court judgement at trial, the other driver’s insurance will reimburse you for your medical costs (up to their policy coverage limits.)
- A settlement is typically only completed once your medical treatment is completed, which can be months or sometimes years after the accident, but you need to seek reasonable and necessary medical treatment right away. If you are underinsured or uninsured at the time of an accident that was caused by another party, an experienced personal injury lawyer can help you negotiate small monthly payments to medical providers until a settlement is completed.
- Gather Evidence:
- Time of day.
- Weather conditions.
- List of people involved.
- Exactly what was said by whom.
- Exactly how the incident occurred.
- License plate numbers of automobiles involved in the accident.
- Photograph or otherwise record the other driver’s license and insurance documentation and the property damage to all vehicles and stationary objects.
- Record the names, phone numbers and email addresses of eyewitnesses to the crash.
- Collect copies of medical records. Begin documenting your injuries, including:
- Physical injuries you suffered
- The mental impact of those injuries
- Medical treatments you received
- Treatments or accommodations you are likely to require in the future
- Time missed from work
- Missed vacations and recreational time
- Any effects your injuries have had on interpersonal relationships (including physical intimacy)
- Take photos and/or video your injuries immediately after the accident, and then do it again every day throughout your recovery.
- Do Not Admit Fault: Do not sign anything without consulting an attorney.
- Notify Your Insurance Company.
- Find an experienced attorney. Most personal injury traffic accident lawyers offer free initial consultations, and charge no fee unless they accept your case and negotiate a settlement or win a lawsuit on your behalf.
You should see a doctor within three days, but ideally immediately.
Aside from the fact that serious injuries may be hard to detect after an accident, delaying medical treatment could hurt your case.
If you were injured by a negligent driver, your can strengthen your claim by having a medical exam immediately after the accident.
If you don’t, the insurance company will use this delay in treatment as evidence that you were not severely injured.
No. Insurance companies often ask personal injury victims for their social security number as if it were required, but you do not have to give it to them, and you should not do so.
An insurance adjuster will typically continue to insist that this is mandatory in order to resolve your case, but once advised of applicable law by an attorney, they will eventually stop asking.
They want to have this data on file so that the entire insurance industry has access to the details of your injuries, medical, financial and criminal history for years to come, as they use this information to minimize subsequent claims. Do not give them your social security number!
You should seriously consider hiring a personal injury traffic accident lawyer if:
- You suffered serious injuries, including long-term or permanent injuries.
- Someone else was at fault for your injuries, and their liability is clear.
- Your case is complicated, in terms of the seriousness of your injuries, complex liability issues or the involvement of multiple parties.
- There is a likely source of money for compensation, including:
Third party insurance coverage
Your own insurance coverage
Third party personal or business assets
- Your accident happened recently. It is very important to consult with a lawyer as soon after the accident as possible, for several reasons, including the fact that there is a legal limit on how long you can wait before filing a personal injury claim. Your lawyer can help guide you through your claim and make sure:
- You are getting the best treatment for your injuries and for the case.
- You are shielded from insurance adjusters who will try to sabotage your case.
- Your medical bills don’t go to collections and damage your credit.
- You don’t pay unnecessary medical bills.
- You don’t have gaps in treatment that can hurt your case.
- You don’t have gaps in medical documentation that can hurt your case.
- You don’t miss out on compensation from a case with multiple other claimants who exhaust the policy limits.
- Your case requires research and negotiation that you do not have the time, energy or legal skills to execute effectively.
- You’re not willing to go to court. Although most traffic-related personal injury claims are settled in pre-trial negotiation, the only way to maximize your settlement is to prepare a strong case for a trial it will most likely never end up in, which includes filing your lawsuit in the court system.
- You want to maximize the value of your case, or at least secure a fair settlement. If you have more than a modest personal injury case, you will likely need to “go to battle” to get a fair settlement, as insurance adjusters will work hard to prevent you from getting the settlement you deserve.
- Check the lawyer’s reputation online. The details of an attorneys reviews can tell you a lot, not just the star rating.
- Take the time to reach out to your circles and find out who the people you love and trust would recommend.
- Look into the lawyer’s previous settlement results, and ensure they get solid financial results for their clients. You probably want to look more closely at the results for cases that resemble yours, rather than just the enticing, big-money results.
- Find a lawyer who is interested in you and your case, and has the time and resources to give you and your case the attention it deserves.
- Lawyers are only permitted to practice law in the state or states in which they hold a license by that State’s Bar, so you want to be sure you are hiring a personal injury lawyer who practices in the state where you were injured. (So if you were injured as a tourist or on a business trip in another state, you need to find a personal injury lawyer in the state where you were injured).
- They have a record of solid settlements.
- They specialize in the kind of Personal Injury Law YOU Need.
- They Are Empathetic and Understand that You Are Suffering. An attorney needs to be able to advocate on your behalf. That requires empathy.
- You Don’t Pay Them a Dime Unless They Win, and they will not expect you to cover case expenses.
- They Take an Interest in Your Case and Instill a Sense of Trust. Ask a lot of questions and choose the best attorney for your particular case, injury, style of conflict resolution and risk tolerance.
- They Take the Pressure off of You. You have enough to deal with recovering from your accident.
- How does your fee work? You should not be expected to pay fees or case costs if your attorney fails to win a settlement or judgment.
- Will I End Up Owing You Money When My Case is Over? (The answer should be no.) Ask what they will do if there is not enough settlement money to cover all of your damages and legal fees.
- Have You Taken A Case Like Mine Before? The BEST attorney for your case should ideally have a lot of specific experience with your particular type of accident and injury.
- Will I Have Access to You as My Lawyer Throughout My Case? Do you return emails and phone calls? You should expect great communication from your personal injury lawyer!
- Do You Litigate Cases and/or Take Them to Trial? Most traffic accident cases will be resolved in the personal injury insurance claims process, but some cases do require litigation and/or trial.
- Can You Provide References from Past Clients? Due to attorney-client confidentiality, personal injury lawyers often cannot give out client contact information, but you can research online to see what past clients are saying about this lawyer.
- What Can I Do to Ensure the Success of My Case? For example, it’s important to avoid posting on social media or talking about the case during the claim and litigation processes. Ask your attorney what you can do to help and how to avoid hurting your claim.
- How Long Will My Case Take to Resolve? While no attorney will be able to predict with 100% accuracy, it’s not unreasonable to ask for a ballpark figure.
If you’ve sustained serious personal injuries while on a trip away from home, you’ll need to hire the best personal injury lawyer who can help people who live far away. At the very least, the attorney should:
- Be licensed in the state where you were injured.
- Know the rules of the local courts.
- Be able to visit the accident scene or at least be familiar with the intersection where it happened.
- Have the technological capacity and experience to deal with clients in another state.
- Operate as a paperless office.
- Be well-versed at handling matters with clients they may never meet in person.
- Have convenient channels of communication, potentially including email, video calls and phone.
If you have come to suspect that the law firm representing you in your personal injury case isn’t sufficiently competent, experienced, communicative or ethical, you do have the prerogative to change attorneys, especially if you believe that your representation has been substandard.
In some cases, this can be accomplished without paying any fees, while in other cases your original lawyer may be entitled to a percentage of your compensation settlement or award.
To secure and maximize compensation in a settlement or in court, you and your attorney will need to establish the following concepts:
- Duty of Care: You will need to demonstrate that the at-fault party had a legal responsibility to look after your safety.
- Breach of Conduct: You will need to demonstrate that the at-fault party violated their duty of care. For example, if a driver ran through a stop sign.
- Causal Effect: You must prove that the breach of duty caused or contributed to your injuries.
- Damages: You will need to present evidence to demonstrate that the financial losses and damages related to your injuries were substantial.
- Collect, Preserve, and Present Evidence to Support Your Claim, including:
- Police accident report(s)
- Emergency room or doctors’ documentation (x-rays, ultrasounds, etc.)
- Eyewitness testimony
- Photos taken of the accident scene
- Photos taken of your injuries immediately after the accident and as your injuries heal.
- Contact info for any and all other parties involved (name, phone number, insurance company)
- Employment records documenting your absences and wages you would have earned had you been at work
- Get Medical Treatment. Examination and treatment are the only to accurately document the injuries from your accident. In most California car crash cases your medical expenses will be paid or reimbursed by your insurance company or that of the at-fault driver.
- Don’t Take the First Offer. If you do, you probably won’t get all the compensation you deserve. You should at least consult with an experienced car accident attorney to maximize your potential insurance claim.
- Don’t Forget the Long Term Impacts of the Accident. If you were seriously injured, you’re looking at follow up visits, physical therapy, decreased productivity at work and other damages. Under California law, you can be compensated for those expenses.
- Build an Ironclad Case. To do this, you’ll need to:
- Serve discovery demands
- Collect depositions from involved parties and witnesses
- Request records from multiple parties (including your medical providers and insurance company)
- Collect expert opinions from multiple medical specialists (including mental health professionals)
- File all the correct paperwork with all the correct offices
(An experienced attorney can do much of the heavy lifting for you.
- Act As Soon As Possible. If you wait too long to seek compensation, the insurance company may argue you don’t actually need the money.
- Keep Your Case to Yourself. Representatives of the at-fault party may discover anything you post on social media and try to use it against you to minimize your compensation.
Five key factors figure into how much your potential personal injury accident claim is worth:
- Liability: Who is at fault for the accident?
- Injuries: How large are your associated medical expenses?
- Property Damage: What sort of monetary value can be assigned to your physical losses?
- Loss of Earnings: How much work did you miss and how has your productivity been impacted by the accident?
- Pain and Suffering: How did the accident impact everyday life? How long will those impacts last?
Since 2017, the immigration status of a plaintiff is not admissible in a trial, nor are a defendant or the defense attorneys allowed to seek discovery of this information.
Thus, trial awards in personal injury cases are based on the plaintiff’s U.S. wages and healthcare costs regardless of their immigration status, and the plaintiff does not have to fear deportation as a result of a personal injury trial, as their immigration status cannot become a part of the court record.
It’s almost always in the best interest of the insurance company to settle out of court. They arrive at the value of an insurance settlement in several ways, including by:
- Collecting Statements from the Insured: An insurer can be expected to try to uncover evidence and statements about the accident that may minimize or jeopardize your claim.
- Investigating the Victim: Any information you volunteer could be used against you to try to lower your final settlement amount.
- Requesting Documented Proof of Injury/Loss: An insurance company will require clear evidence of expenses and damages before agreeing to a settlement.
The insurance adjuster will enter whatever information they are able to gather into their actuarial claims software, which generates a settlement offer. The first settlement offer will likely be much less than the predicted total value of your case.
In a typical personal injury case, both parties to the accident would prefer to avoid the uncertainty of a trial. The injured party may be financially motivated to finalize a settlement quickly, while the party accused of negligence is often particularly motivated to avoid negative publicity or the admission of liability.
Since most personal injury cases are settled without going to trial, professionals who represent parties to accident cases participate in settlements regularly. Insurance companies and plaintiff attorneys have experience and tools to help them put a value on an injury case, so minimal negotiation may suffice to arrive at an amount that is mutually agreeable.
The Benefits of Settling Your Injury Case Out of Court:
- You Get Your Money Faster
- It Costs You Less
- You Eliminate the Risk of Losing
- You Can Preserve Your Privacy
Negotiations in a personal injury case are typically ongoing before, during and sometimes after a trial until a settlement is reached.
Deposition allows each side to collect information from individuals to whom the other side may have previously had exclusive access or who were not initially cooperative.
Thus, the deposition phase can function as a litmus test by providing lawyers for both sides an opportunity to see what evidence, testimony and resources are available to present or defend against a case to a judge or jury, and can facilitate changes to each side’s negotiating position, including new settlement offers and more urgency to avoid trial.
Factors That Can Help You Determine the Expected Value of Your Personal Injury Traffic Accident Settlement include:
- Missed time from work: Lost earnings or wages due to time away from or diminished ability to perform your job during recovery or in the future.
- Pain and suffering: Loss of enjoyment of life, all the ways the accident and your injuries negatively affect any aspect of your life including work, family, social life, sports and hobbies.
- Loss of consortium: Damage to your marriage and relationship with your spouse.
- Inability to do household chores: The cost of hiring someone to pick up the slack because your injuries make it impossible or too painful to perform normal household or familial duties. You can even be compensated if these chores are left undone.
- Property Damage: The cost of repairing or replacing any personal property damaged in an accident.
- Medical Costs associated with injuries sustained in the accident.
- Out-of-pocket expenses directly related to the crash, including tow trucks, cab fare, Uber rides and prescription costs.
Money awarded in personal injury settlements in California is technically legally exempt from garnishment, but if you accidentally mismanage that money, that exempt status could be put in jeopardy.
What You Can Do to Protect Your Injury Settlement from Being Garnished:
- Create a bank account just for your settlement money, separate from other money you may have, including savings, wages, inheritances, etc.
- Keep accurate records of where that money came from and where it goes. Keep all receipts, invoices, and bills that you paid with your settlement money, thus creating a paper trail for future use.
- Use prepaid debit cards in an emergency. If a creditor holds a judgment against you, a creditor may be able to get legal access to your money in a traditional bank account. Depositing that money onto a prepaid debit card will let you hold onto it but still have easy access to it.
A personal injury settlement calculator will probably not provide you with a very accurate idea of the value of your case.
A settlement calculation tool used with the appropriate assumptions behind the data entered can provide a very broad and general idea of what your settlement may be worth, but it takes an expert such as an experienced personal injury attorney to make the best use of these tools and come up with a more meaningful estimate of the potential value of your case.
- Complaint and Answer Phase: Your personal injury traffic accident attorney will submit a complaint to the court in the jurisdiction where the accident occurred, including:
- A description of the accident
- Allegations of liability
- A declaration of your need for compensation, supported by evidence including financial and medical records
- Your complaint is then served to the defendant.
- Discovery Phase: Both sides bring forth evidence collected, including:
- Police documentation
- Photo or video evidence
- Eyewitness testimony
- Expert testimony
- Medical records
- Financial records
- Motions: Requests by either party to the court in an attempt to get the judge to take action on a particular detail of the case, such as a defense request to dismiss the case before it goes to trial.
- Hearing: A judge may schedule a hearing to seek clarification on key aspects of your case, which can result in a motion being denied or granted.
- Mediation: Courts will often order a settlement meeting conducted by neutral mediator in an effort to avoid trial.
- Trial: The court will attempt to decide liability and compensation.
Stages of a Personal Injury Trial:
- Jury selection
- Opening statements
- Witness testimony and cross-examination
- Closing arguments
- Jury instruction (final instructions from the judge to the jury)
- Jury deliberation and verdict
- Appeals: Either party may challenge the court’s decision due to errors in the application of law and procedure.
The rule originally prohibited defense attorneys from introducing evidence that injured parties had already received compensation from third parties.
These protections remained in effect for medical damages until the California Supreme Court in 2011 ruled that an injured plaintiff may recover as economic damages no more than the amounts actually paid or owed by the plaintiff or his or her insurer for medical services received, and that amounts billed by medical providers are inadmissible at trial.
Thus 3rd party compensation is now entered as evidence and medical damage awards are capped at the amount paid or owed for services.
Because medical providers typically have agreements with insurance companies to provide services at lower rates than they bill to individuals, plaintiffs with similar injuries (or their insurers) can pay or owe vastly different amounts for treatment, and thus receive radically different medical damage awards, and a defendant’s insurance company can reap financial benefit from a policy the plaintiff paid into for years.
In California, the burden of legal fees can be shifted from one party to the other through the tactical use of a California Code of Civil Procedure Section 998 offer.
The purpose behind a statutory offer to compromise is to encourage the settlement of disputes prior to trial or arbitration. CCP 998 offer to compromise can only in negotiations taking place after litigation has commenced.
There are three possible outcomes to a 998 offer:
- If the case settles prior to trial, both parties assume their own legal costs.
- If the case goes through a trial, the prevailing party may transfer the financial liability for certain legal costs to the losing party.
- If the case goes through a trial, the prevailing party may actually have to pay for their own legal costs AND some of the legal costs of the losing party, depending on who made the 998 offer and whether or not the final award was better than the offer to compromise.