How to negotiate and settle your injury claim effectively

1. Preliminary considerations in settling an injury claim

Most accident injury and other bodily injury claims are settled before a lawsuit is filed, and thus before the insurance carrier of a liable party is required to retain an attorney to defend the party at fault. In all likelihood, therefore, initial settlement discussions will be with an insurance claims representative, also known as the claims adjuster. The adjuster is charged on behalf of the insurance carrier with investigating the facts and formulating a fair settlement value.

To evaluate the claimant’s first demand and make a settlement offer on the carrier’s behalf, the adjuster will need to review whatever reports and records are available regarding claimant’s injuries and damages. Indeed, copies of medical reports and bills, employer’s verification of lost earnings, benefits and other losses suffered as a result of being absent from workplace, property damage bills, photographs and estimates, and documentation of other, out-of-pocket losses, will be essential to support the adjusters request to his principals to extend a settlement offer. Thus, cooperating with the insurance company’s requests for the above records is generally a good practice that will likely expedite the settlement process. However, it is generally unwise to volunteer information about your earlier injuries or pre-existing medical condition, since the defense will use this as a basis to deny that the injury resulted from the present incident. However, there are a few instances in which the earlier medical history should be volunteered as where it will enhance the value of the claim – e.g., where the injury in question was a minor one, but aggravated a pre-existing condition, causing severe disability, as the party at fault cannot escape liability by arguing that the damages would not have been incurred but for the preexisting condition.

And, of course, if the adjuster has already found out about the prior medical history, it may be necessary to furnish the pertinent records and reports to show the prior condition was not the cause of claimant’s present disability.

2. Making an Initial Settlement Demand

Claims adjusters rarely make the first settlement offer. Instead, they expect the claimant’s attorney to make an initial settlement demand. It is important to have the “bottom line” figure in mind. Before making an initial demand, determine an absolutely minimum amount you believe the case should settle for. Once a bottom line figure is determined, it should be changed only if new information bearing on the claim’s value surfaces during the negotiation process.

3. Settlement Negotiations

The adjuster will assume that the first figure demanded is negotiable. Therefore, the initial demand should not be the “bottom line” but rather should start higher, leaving room for negotiation. It is important, however, to make sure that the initially offered settlement figure is reasonable to avoid turning off all negotiations.

A good approach for ascertaining a realistic high-low range is to relate the settlement value to recent jury verdicts returned in similar cases.

Three Mistakes You Should Avoid in Your Injury Case

Here are three of the most common mistakes that can significantly reduce the value of your personal injury case:

1. Waiting for too long to treat after your injury incident.

Few things cast more doubt on the severity of your injuries in the eyes of the insurance companies / opposing counsel than large gaps in treatment. This makes sense. After all, the other side (the insurance company for the driver at fault, etc.) is only entitled to doubt how much pain you are suffering from if you were not eager to get help soon after sustaining the injury or if you didn’t treat consistently. Thus, it’s probably not a good idea to be “tough” after serious accident and decline ambulance services and emergency room treatment if you experience pain. If you don’t have health coverage, don’t let it stop you from getting the treatment you need. Many doctors and chiropractors work on a lien, where you won’t have to pay for your medical treatment upfront, and you will only have to pay when your injury case settled. You should discuss this type of common medical lien arrangement with your attorney.

2. Telling the insurance company adjuster that you weren’t seriously injured early on. 

It is almost always the case that the person who is injured in an accident does not experience pain immediately after the impact due to adrenaline rush and other factors. Much of the pain and discomfort in neck, back and other parts of the body appears 24 hour after the accident or even later. Some of the serious symptoms are not noticed until several days after the incident or even longer. Thus, you should not rush to inform your insurance company about what your exact injuries were shortly after the accident because you might just not know it. You are much better of generally describing the pain that you are experiencing and reminding the adjuster that you are not sure what your injuries are as you didn’t undergo a full medical evaluation yet.

3. Lying or not telling the whole story to your attorney about your prior injuries or accidents or any other facts that might make proving your injury case more difficult.

I met clients who would hide the fact that they had prior injuries and accidents until the other side found out about their medical past. I have been sent video tapes that captured my client working at a physically demanding job while claiming that he was severally injured, unable to perform any work and was unemployed. To say the least, it is an uncomfortable situation for a lawyer to find out a certain fact about his client from the opposing counsel. At a minimum, an inconsistent verbal or written statement can be clarified as a misunderstanding or some kind of inadvertent omission. In many cases, however, an untruthful material statement by a client will cast serious doubt on that client’s credibility and can seriously hurt his / her chances to recover the settlement or the judgment that he / she deserves because it can be used to impeach the client at subsequent trial proceedings. Thus, lying on a deposition under oath can be fatal to your case.

The bottom line is this – be as truthful with your lawyer as you can. And if you don’t remember something, just say so. There is no harm in saying “I don’t remember” or “I don’t know” or “I am not sure”, especially if that’s truly the case.

When your lawyer acts like a “lawyer”…

The members of legal profession have been suffering from the reputation of being arrogant, greedy, and materialistic for many generations. This long-standing stereotype is not without basis. I keep hearing from different people and my new clients about their negative experiences interacting with attorneys. “Arrogant, pompous, condescending, flamboyant” are the common terms that they describe the lawyers they know or had to work with.

I am not sure if it’s greed, insecurity or the desire for that missing validation from the outside that are behind that behavior. The astounding fact, however, is that so many of those attorneys believe that showing their “status” is beneficial to their work and their career. Nothing could be further from truth! Litigation process is intimidating enough. The last thing that a client needs is dealing with someone who makes it even more unpleasant and stressful. A lawyer is a fiduciary of his client. This is a very special relationship, during which a client has to disclose a lot of personal, confidential information about himself and his business. This is exactly why it is so crucial that an attorney treats his clients in as personable manner as possible without putting up walls. One of the very important roles of an attorney is making his client feel comfortable, open, and honest about his problems and goals. When a client feels comfortable relating and disclosing every little facts and circumstance of his case, it will be of tremendous benefit and value to his legal representation. When your attorney knows the facts of your case in just as great of a detail as you do, he will be able to represent you in the most effective and zealous way. This cannot be possibly achieved if the client is intimidated by his attorney, or feels rushed or unwelcome when talking to his lawyer.

One of my recent clients left her previous attorney for this exact reason. Every time she talked to him, on those rare occasions when she managed to actually get a hold of him, she experienced anxiety and feelings of inferiority as if her attorney was smarter than she was. When I called him to discuss the case, I knew immediately what my new client was talking about. Even I felt “pushed” when talking to him. The only difference is that I, of course, know how to handle the “type” and put him/her back in their place.

So, if you are intimidated by your attorney and you don’t feel comfortable sharing with him some of the personal information about you which could be relevant to your case, you are not the right fit for each other, and you are better off exercising your absolute right to be represented by a different lawyer.

Six signs you hired a good personal injury lawyer in San Francisco!

There are thousands of lawyers in California who seem to have a similar education, licensing and specialization and yet the experience that different clients have with their attorneys is so different from one another.

So, how do you know that your attorney is the one who will provide you with quality legal representation:

1. Your attorney is not overconfident in the outcome of your case. No matter how experienced and seasoned the lawyer is, he cannot and should never be sure of the outcome of your case. There are so many facts and circumstances that might come into play as the case develops and the nature of our legal system is such that there is simply no way to know for sure whether you will win or lose and if you win – how much exactly you will recover from the other side.

A responsible legal professional will assure you that he will do the best he can to represent you as aggressively as possible but he will not make any promises as to how much you will recover and how long exactly the process will take.

2. A good attorney should not act like a pushy salesman. He shouldn’t shove papers underneath your hand for your signature telling you that “it’s ok and you have nothing to worry about.” Instead, he should explain to you in plain and understandable terms what you are signing, why it is necessary and what the consequences of your executing that document are. For instance, a good attorney will go over your services contract with him paragraph by paragraph, making sure that you understand what the scope and the limitations of the legal services you will be provided with.

A good attorney will also advise you that you are free to terminate your agreement at any time and seek alternate counsel and hire a different attorney of your choice at any time.

A good attorney is patient with his clients and makes sure that you have a general understanding of the process, and he doesn’t make you feel unwelcome or like you are wasting his time.

3. A good lawyer is capable of keeping in touch with you in a way that makes you feel that your case gets the attention it requires. An attorney has a duty to communicate with his client on a consistent basis. One of the most common complaints reported to the California State Bar by clients is that attorney fail to communicate and return phone calls / e-mails and letters from their clients. Being ignored is a frustrating experience in any setting – professionally, socially and especially when it comes to dealing with a lawyer. Litigation process is stressful enough and raises many questions or concerns in a client as the case develops that need to be addressed promptly. A good attorney is not “too busy” to return your calls and he keeps you informed of the developments of your case.

4. A good attorney will advise you not only how to prosecute your case but whether or not it is worth your time, money, energy and emotions to actually go after it. Not every fight is worth fighting and sometimes it is a better idea to walk away for your own benefit even if the other side gets away and isn’t held liable. An honest attorney will not make you fight a case just to charge you an hourly fee. He truly does work in the best interests of his clients by not only pursuing their legal rights but also advising them whether or not it’s prudent to pursue a case altogether.

5. A good lawyer is not too busy to handle your case. A competent lawyer will not take on more work than he can handle in a quality manner. A good attorney will not sacrifice the quality of his services for the sheer volume of the business because he realizes that his reputation and concern for his existing clients’ cases is his priority.

6. Lastly, your attorney doesn’t come across as a “typical” lawyer. A great attorney defies the stereotypes that are commonly associated with the legal profession – arrogance, greed and flamboyance, and substance abuse. He is friendly, personable and charismatic and you actually enjoy working with him / her.

Of course you should not forget those three tips on working with a personal injury lawyer to make the most out of your relationship and representation.

Your five fundamental rights as a client when working with an attorney

Many clients are not aware of their most fundamental rights when being represented by an attorney and what duties attorneys owe to their clients as a matter of law and the code of ethics. This lack of knowing your rights and your lawyer’s duties in an attorney-client relationship can hurt you as a client but not allowing you to fully enjoy the benefits of legal representation and knowing what protections you, as a client are entitled to.
Here are a few basic yet very important rights that you have as a client when retaining and attorney and attorney’s duties to you as a client:
1. Attorney’s duty to communicate – your lawyer must keep you reasonably informed of any developments that are taking place in your case. Your attorney must also be prompt it returning your communication (phone calls, e-mails and letters).
2. Attorney-Client Privilege / Duty of Confidentiality. Your attorney has a duty to keep all communications (verbal, in writing or otherwise) confidential and not reveal your confidences. A communication is confidential if it is made in a course of your professional relationship with an attorney regarding your case with the expectation that that communication will remain private.
3. The right to terminate / change attorneys. This is one of the most important rights that you have as a client and the one that so many people are not aware of having. You are entitled to terminate your relationship with an attorney and represent yourself (in pro per) or hire alternate counsel at any time you want. Should you terminate your relationship with an attorney, he / she must forward your entire file to your or your new attorney promptly. Similarly, your attorney can stop representing you at any time before litigation ensued by notifying you in writing, or for “good cause” if the lawsuit was filed and your rights will be prejudiced if your attorney abandons your case without allowing for sufficient time for you to obtain new counsel.

4. The right to a detailed billing statement for legal services from your attorney. As a client, you are entitled to receiving a detailed bill with the full breakdown of the costs and fees that attorney is charging you. The bill should include the time spent by your attorney on each task performed and what that task involved. In other words, you are definitely entitled to a greater detail than “3 hours – legal services” breakdown. A an example of a proper billing language that will make you feel more comfortable and will make your attorney less likely to be incorrect in his calculation of his fees is something like this: “12 minutes – a conversation with opposing counsel regarding responses to discovery. Agreed to an extension of 2 weeks to respond to interrogatories.”

5. The right to make ultimate decisions in a case. It is important that your remember that your attorney’s job is not to make decisions in your case but advise you on what course of action to take considering all the facts and circumstances of your case / situation. An attorney cannot and must not decide how much money he should settle your case for, whether he should dismiss the case, agree or disagree to go to trial and alike. An attorney must advise you of the relevant options you have at any given stage in the case, inform you of advantage and risks associated with any step you might be taking, recommend you the best course of action in your attorney’s professional opinion and then expect your final say as to what will be done in your case.

* Finally, before you decide to hire an attorney, do not forget to check that he is who he actually says he is. Many “fake” attorneys, suspended attorneys, and paralegals have been caught and prosecuted for unauthorized practice of law during the past few years. Make sure you are dealing with an actual attorney who is licensed to practice law in California. This is easy – just go to , plug the name of your attorney and you will be able to see his contact information, brief biography, bar membership status and history of misconduct, if any.