MacGomery Law

Archive for the ‘Personal Injury’ Category

This is the first in a series of posts designed to discuss litigating a personal injury claim. It is intended primarily for other attorneys but will hopefully also prove valuable to those who might be contemplating a personal injury claim.

After the accident, and hopefully after the person involved has begun treatment for their medical injuries, a call comes into the attorney’s office asking whether or not the person has the grounds necessary to raise a personal injury claim. This is the first contact with the potential client and is therefore the first opportunity to market your firm and services. Screw this up and you most assuredly will not get a new client. Do well, and even if the client or you decides not to go forward with the claim, you have created a potential referral source that could pay dividends in the future.

First things first – capture all of the client contact information. Get everything you can (name, address, phone numbers, and email) to allow you to contact them now and in the future. Have a new client form that you can easily grab when the call comes in that prompts you for this information. Or better yet, have such an input form on your client database so you can easily fill it out and create the database records without additional data entry steps.

Next, capture the relevant facts regarding the case. You should concentrate on facts concerning liability, injuries, medical treatment, witnesses, statements, and defendant/insurance company information. The goal is to listen to the client and give them an assurance that their case is important to you while obtaining enough information to make a determination as to whether or not you want to accept the case. Ultimately, you will have to make that decision and usually before the conversation is ended.

If it is a case you would like to accept, the next step is to get the client to execute a retainer agreement (subject of the next post in the series). More and more, I am doing this next step via email by sending the agreement and other intake documents to the client and asking that they be completed and returned via email. This has an immediacy to it and also steers the client to using email as the primary form of communication going forward. If that is not reasonable, then have the client come in for a face-to-face meeting. This has its advantages as well as you begin to establish a personal relationship with the client and they become more comfortable with you as their attorney.

If you are not interested in taking the case, your goal is to have the potential client recognize you as a future resource. Often times I will go to great lengths to give them the contact information of other attorneys who may be able to help them. Somebody might see the case differently and by referring them out you give the client the sense that their well being is your objective even if you can not take their case. And I will even ask the potential client to call me back if they are unable to find an attorney to take their case and I will help them to further look for one.

I try not to give the client the “I’ll get back with you” response unless it is really necessary. If the case presents an issue of law that I am not as comfortable as I would like, I might ask to get back with the client after I research it. But that research has to be done quickly and you have to contact them right away else they will think you are just ignoring their case and blowing them off.

So my goal for new client calls is pretty simple. Gather enough information that will allow me to either accept the case as a new client or else create a sense in that person that they can call me back on this or any other matter and know that they will be heard and their needs addressed to the best of my ability. Over the course of time, it has proven to be the right strategy for me in both developing a client base but also in creating corporate goodwill.

For sure, car insurance and car insurance companies are a necessary evil. You would be foolish, and in this state illegal, to operate a motor vehicle without insurance. In the event of an accident, and in particular a major accident, you need the insurance coverage to pay for your property damage to your car and to compensate you for your injuries and lost time from work. But make no mistake about it, insurance companies exist to make money, a profit. And the primary way of doing so is to take in premiums and limit how much they have to pay out. This means that at the very time you need them, you may find yourself fighting with them to get what you deserve.
I recently had a client who was struck by another driver. It was very clear that the other driver was responsible. But a few days after the accident, the adverse driver’s insurance company sent my client a very small check for what she understood was to replace her child’s car seat. On the bottom of the check they included the phrase “Payment in Full for Bodily Injury Claim”. Now, my client had not even filed a bodily injury claim at that point. Nevertheless, when she did hire an attorney to file such a claim, the insurance company pointed to that first check and told her that in cashing the check she was relinquishing all further claims. In other words, they were trying to take advantage of her. Unfortunately, her first lawyer did not understand this and dropped the case. I was able to restart the claim and succeeded in getting her the full value of her claim.
So the next time you hear you are in good hands with…, or we’re on your side…, remember, they are in the business of making money. Hopefully your interests will align with theirs and everyone will be happy. If not, that’s when you need an attorney.

I’m sure it will come at some point. Listening to all of my esteemed colleagues, who have been practicing far longer than I have, moan and groan about the system and about judges in particular, makes me wonder when I will become equally jaded. Because to date, I have been remarkably surprised about how accommodating the court has been towards me and my clients. There have been times when my clients have been late for court, or unprepared, or disrespectful (despite my efforts to make sure they are not) and still the court affords them a level of dignity that perhaps some might not think they deserve. And certainly I have demonstrated my ignorance on more than one occasion before the court only to have most judges take the time to explain to me the error of my ways.
I think bottom line, if you are polite and respectful to the court, it returns the favor. It only stands to reason that that would be the case. I have only really had a problem with two judges. One who ruled against me because he was mad at my boss (only to be overturned on appeal) and one who I think made an error regarding evidence (see my earlier post). But in general, my experience has been a good one marked by respect and civility. Maybe things will change, maybe I’ll become more jaded and cynical at some point. But I am not there, yet…

Like most legal questions, the answer is generally it depends. My practice concentrates on two primary areas of law: family law (divorces, child custody) and personal injury law (automobile accidents, slip & falls). Settling the case means different things in each discipline but generally it refers to resolving the issue without have the court make the ultimate decision. The court may help along the way by steering the parties to mediation or other forms of alternative dispute resolution. But if the parties can reach an agreement without the judge having to issue a binding court order, then it is usually in their best interests to do so.

I settled several personal injury cases this week alone. In each situation the key to getting a fair offer is to work the case up as if you were prepared to go to trial. In doing so, you can be assured that the opposing party and/or their representative is well aware of that preparation and can make an honest representation to their client. I also take an extremely professional and courteous approach with the opposing attorney or adjuster because you are going to do business with these folks down the road again for sure. While I may not get the best deal in this case, I am laying the foundation for getting a better deal in the next because they know and can trust me.

But in the end, it has to make sense for the client. Take the time to educate them and really explain the tradeoffs in detail. They understand far more than many attorneys give them credit. And frankly, at this point it is not rocket science. Settling their case now might not get them all they want, but it does get them some or most of what they want sooner, with less emotional trauma, and in a more dignified setting. And they control the terms rather than being at the whim of the court. For many personal injury victims or family law disputes, this sense of control is a liberating experience that can work to resolve the case quicker, cheaper, and more efficiently.

There are lots of list available on the internet about what to do in case of an accident. And in fact, there are lists of what not to do. Anthony Castelli presents such a short, but informative list, on his website. Here is my take on things you should do to preserve the potential of your personal injury case. Remember, not all accidents result in personal injury and not all personal injuries end up in a lawsuit. But… if they do, you want to make sure you do the following:

1. Check on you, your passengers, the other driver(s), and their passengers, to make sure everyone is all right. 
2. Call 911 for police and/or emergency medical personnel.
3. Secure the scene by putting out flares or other visual markers to make sure you are safe until the police and/or emergency personnel arrive.
4. Exchange insurance and contact information with the other driver. Get as much information as possible i.e. all phone numbers, addresses, license plate number, driver’s license number, etc. Do not rely on the police officer to get this information. For this reason, always make sure you have paper and pen in your car. If possible, verify those phone numbers on the spot. Too many times cases are delayed or ruined by being given incorrect information about the other driver.
5. DO NOT TALK ABOUT THE ACCIDENT WITH THE OTHER DRIVER. Anything you say can and will be used against you. Sound familiar? People are emotional after a serious accident and often blurt out statements about fault or speed or injuries that come back to hurt their case. Only talk about these things with your insurance adjuster and/or your attorney, never the other side.
6. Take as many pictures as you can of everything about the accident: your car, their car, the scene, the individuals, signs, the road, etc. Hopefully you have a disposable digital camera in your car to use else you can use your cell phone. Pictures taken at the time of the accident are the single most helpful step you can take to preserve your personal injury claim in my experience.
7. Draw a diagram of the accident and how it took place on that pad of paper you are using. Make it as detailed and as much to scale as possible. Do not share it with the other driver. Over time memory fades and when it become necessary to recall the details of the accident, this diagram will be invaluable to you.
8. Contact your insurance company and open a claim. That’s the reason you pay insurance premiums. Yes it may have an effect on your future premiums. But if you have an accident, regardless of if you file a claim, there is going to be an effect. This way, your insurance adjuster can coordinate the payment of property damage on your car and perhaps get you a rental while your claim is being handled.
9. NEVER submit to having a statement recorded by the other driver’s insurance company. See #5. Politely decline to provide a statement and inform the opposing insurance adjuster to contact your insurance company and/or attorney.
10. GET THE TREATMENT YOU NEED. If you are not injured, do not go to the doctor or hospital. But if you are, do get treatment and do not wait. And when you do get treatment, do everything the doctor tells you to do. Many a good case is screwed up by folks who do not seek medical attention for awhile only to find out they need it later. At that point it is harder to tie to your accident. Similarly, if the doctor tells you to go to physical therapy three times per week for three weeks – go. Don’t stop after a couple of visits because you think your are beginning to feel better and then find out you have a relapse. These starts and fits or discontinuances of prescribed treatment wreck havoc on your case.
11. CALL A PERSONAL INJURY ATTORNEY. Find out if you have a case. You may not, but it does not hurt to call and find out. Can you pursue a personal injury case on your own without an attorney? Sure. But you will probably have better results and less headaches if you use an attorney.