Do you need legal representation for your injury case?

One of the first questions that a person who is injured in an auto accident asks himself is whether he should handle the claim himself or retain an injury lawyer. And… if to hire a lawyer, how to find the right one – how to find an honest, aggressive legal professional who will obtain fair compensation and do a thorough job representing you? Choosing a lawyer can be a challenging task, especially in San Francisco, where there are literally hundreds and hundreds of personal injury lawyers.

Generally, a small accidents with minimal property damages and mild, soft tissue injuries injuries from which you completely recover within a month or so do not justify hiring an attorney unless the third-party insurance company of the driver at fault simply denies liability or are otherwise being unreasonable about settling your claim, not willing to compensate you for your basic medical expenses and for the time missed from work.

Otherwise, if you document your injuries, medical treatment and loss of wages well, you should be able to obtain fair compensation in your insurance settlement without the necessity of paying anywhere between 25% and 40% of your recovery to the attorney.

However, if you suffered a serious injury to one or more parts of your body in an auto accident, which is likely to have residual effects in the future or possibly for the rest of your life which has and will affect various aspects of your life and your ability to enjoy the typical social and professional activities, it is in your best interest to hire a reputable, knowledgeable, personal injury lawyer for a number of compelling reasons:

  1. Assessing your injury claim. An experienced personal injury attorney will help you understand the legal issues involved in your specific personal injury claim. Is the injury serious? Is it a permanent or temporary injury? Who was at fault? Was there an uninsured or underinsured motorist involved? Is there any third party responsibility? Do you have pain and suffering? Should you try to negotiate with the insurer yourself? Do you have to accept his settlement offer? Do you know what your case is worth (the insurance company does and won’t tell you)? A good lawyer will tell you whether it makes sense to sue in small claims court, to sue for a larger amount in state court or to settle out of court.
  2. Obtaining additional evidence, information and reports. A good personal injury attorney will know what kinds of evidence to look for (i.e., medical and vocational evidence, police reports, etc.) and will investigate and interview potential witnesses for statements to gather all the necessary records and other evidence to prove the extent and the gravity of your injuries and to prove liability of the other party of it’s in dispute.
  3. Provide legal education to find a possible shortcut to resolving your injury claim. If representing yourself works better for you, consider using an attorney as a legal coach to help you (1) understand the personal injury law that applies to your case; (2) find the evidence that best supports your case; (3) understand the relative strengths and weaknesses of your claim; (4) understand the litigation process and customs unique to your local courts; (5) draft or review paperwork; (6) identify opportunities for a settlement to your personal injury claim; or (7) represent you if at some point you feel you can no longer go it alone.
  4. Negotiate. If there is an unresolved dispute, there will be negotiations with a claim adjuster who is a professional negotiator. You’d be wise to hire an attorney to negotiate on your behalf and to protect your interests, as both insurance companies and insurance defense lawyers take the arguments of a lawyer much more seriously than those of a lay person who is trying to handle his own injury claim.
  5. Represent you in court. An experienced lawyer can help you file a personal injury lawsuit against the party with whom you have a dispute. If your opponent has a lawyer, then by all means, you need to get one as well, as a lay person does not have the knowledge and experience to deal with the opposite size, following the many complicated court rules and procedures.
  6. Relieving you of the hassle associated with handling your own injury claim – your most important job after being involved in an injury accident is making sure that your recover and get back to the normal course of your life. From the moment you hire an attorney, you are relieved of the trouble of handling many of the issues associated with your claim, as most, if not all, the work will be done by your lawyer.

So, the bottom line is this: if your injuries are insignificant, you didn’t miss a lot of time from work and the insurance company being reasonable with you, then you should settle your claim and move on with your life.

If your injuries are serious and require careful treatment and evaluation and are likely to affect your future, it is highly recommended that you retain a personal injury lawyer to represent your interests, to negotiate on your behalf and possibly fight for a fair recovery in court.

California Injury Law: Medical Billing and Settlement Damages

Since the Hanif v. Housing Authority (1988) and Nishihama v. City and County of San Francisco (2001) cases have been decided, the insurance companies have successfully argued over and over that the personal injury claimants should not be entitled to recover damages based on the actual charges for the necessary medical services received, but only for those actually billed to the private health insurer.

In other words, if you have been injured in an accident, have received emergency room care and other medical care totalling $20,000 in medical expenses, but your health insurance provider (such as Blue Cross) that has a special arrangement with the hospital, reduced the bill to $8,000, the third party insurance company for the driver at fault would normally argue that your damages should be based on the latter figure of $8,000 rather than actual billing charges.

However, this argument on reduction of damages might not have much validity any longer. In a recent case Olsen v. Reid, filed on 6/23/2008, the above case decisions and their logic has been condemned and practically shattered by the fourth district appellate court. The court passionately supported the rationale of the long standing “collateral source rule” in California, which states that the recovery of the victim in an injury case should not be reduced just because some of the damages were coverd by a collateral source (such as health insurance company).  The court criticized Hanif and Nishihama decisions, insisting that it is appropriate for the jury at an injury case trial to hear evidence as to the full amount of the injured claimant’s damages and not the reduced amount that was billed.

The forth district emphasized that the more recent cases held that if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor (for example, the driver at fault), such payment should not be deducted from the damages which the plaintif would otherwise collect from the defendant.

This recent decision significantly weakens if not eradicates, at least for now – until and unless the California Supreme Court makes a ruling on this issue, the Hanif/Nishihama argument that the insurance companies like to use to reduce their settlement offers.

Releases of Liability for Injuries in California

Many gymnasiums and other facilities where there is a risk that  customer will suffer an injury, have those customers sign a release of liability which is supposed to release the business from any and all liability for injuries and damages sustained by the customer/visitors while on premises. However, not all releases are valid and enforceable as the power of the release to preclude and injury claim depends on the scope of the release and its applicability to the particular incident.

Generally, in order for a release of liabilty to be held enforceable and prevent an injured from having a legal action for personal injuries (1) the release must be clear, unambiguous and explicit in expressing the intent of the parties; (2) the act of negligence that results in injury must be reasonable related to the object or prupose for which the release is given; and (3) the release must not contravene public policy.

The second element is the one that is subject of contention and litigation. To illustrate, in one case the court considered a situation where a vistor of a car race signed a release that purported to release the facility from any injuries sustained by the viewers as a result of the automobile racing. One visitor was injured when one monitor located in the area fell on his head after he tried to adjust it. The court concluded that because the release was not intended to release the premises form this kind of injuries and was only limited to injuries related to the automobile race and the dangers that the race cars directly pose to the viewer, the release did not apply to the claimant’s injuries, and he was allowed to proceed to recover damages.

However, in other case, a gym customer was not allowed to recoverfor injuries sustained when he slipped and fell in the shower, because, as the court pointed out, the release executed by the customer with that gym, provided that the customer releases the facility from liability for any and all injuries, whether related to exercising or not, while on premises.

Personal Injury Case Mediation

Mediation is one of the settlement negotiation “tools” that the parties to an injury action can use to reach a settlement prior to later hearings and trial. Like any other way of settling an injury claim, mediations have their ups and downs. I, personally, believe that the advantages of a mediation in front of a compelling mediator far outweight the possible drawbacks, especially if the case involves serious injuries, substantial wage loss and major pain and suffering.

Mediation is a meeting between the parties to the injury claim and the mediator in an informal setting, that usually takes place soon after the written discovery is complete and the deposition of the injured person is taken. It is an informal hearing that takes place at a mediator’s office. In the beginning of that meeting, the mediator, who is usually as seasoned attorney who practiced in the area of injury law or a retired judge, explains the rules of mediation and reminds the parties that whatever settlement they achieve at the mediation, if any, will remain confidential as required by law.

Then, the mediator will allow the parties to present their case (although not always) and then separate the parties (usually the Plaintiff and the attorne for the insurance company) into separate rooms (caucuses). Then the negotiation will begin. The insurance company’s attorney will routinely start the negotiations with an unreasonably low dollar figure, while the plaintiff’s attorney will recommend an unreasonable high figure.  The mediator will be going back and forth between the caucuses, bringing arguments to their attention why the should move closer to the other side in their position, hoping that a few hours later (or a full working day later), the parties will reach some kind of compromise.

The advantages of the mediation process are the lack of anxiety and stress associated with an informal negotiations process and the statistically high rate of settlements at a mediation of injury cases. After a relatively stressful deposition testimony, at which the injured person is forced to answer the opposing attorney’s questions, many of which are designed to defeat the injured parties claims, the claimant can feel relieved at the mediation in that whatever he or his attorney suggests is not a testimony and has no affect on the case should parties not reach a settlement. Further, getting an opinion of a seasoned attorney on a case may also prove to be very useful regardless of whether the case settles at a mediation.

The main disadvantages of a mediation are that they can be relatively expensive (each party may be required to pay $1,500 or more, depending on how many hours the mediation lasts), and that it is non-binding. In other words, it is possible for the parties to spend all day negotiating, but not reaching a settlement agreement.

One of the common mistakes that injured claimants make when going to the mediation is having a certain, solid expectation – a certain dollar amount they have in mind which they expect to receive for their injuries and damages and below which they are unwilling to negotiate, no matter what. This is not a good mindset for mediation (or any other negotiations for that matter), as being flexible and keeping an open mind are critical to successful mediation. You have to remember that no one really gets all they want at a mediation, as mediating a case is all about finding a compromise and having both parties give something up in order to find a short-cut to the stressful and expensive litigation process.

If you are about to have a mediation of your injury case, it is crucial that you realize and remember that mediation is about flexibility and about keeping an open mind. Too many claimants act impulsively on those expectations and walk out of the mediator’s office as soon as they hear the initial, very low settlement offer of the insurance company, instead of exercising the ever important patience at mediations, listening to the arguments of all the involved parties and acting accordingly.