procedures/injury cost calculation/misc

[kenobisan]

I was involved 7 months ago in an auto accident. My vehicle was rear-ended on a highway exit ramp, and I have been seeking medical attention in the form of physical therapy since then.

I am about to file against the insurance company of the driver of the vehicle that struck me. I am familiar enough with the process to file the actual paperwork, but have some loose ends in terms of monetary damages and some filing details.

The statute of limitations runs out Feb 2002, so my claim needs to be filed soon.

1. in cases of personal injury, how should the amount be filed if treatment is still on-going, and continual.
a. how should a claim be handled when currently my insurance is paying for my medical expenses (HMO). Is it my responsibility to inform my insurance company that the injuries arose from an automobile accident, and caused by the other party?
b. Pain and suffering calculation: Is there an empirical formula for determining compensation. Since I am only 27 and the accident has eliminated my participation in most activities (other than work), how do I process a figure that adequately reflects my life experiences lost?

2. Should that lawsuit name two parties? Rather, should I sue both the driver and the insurance company?

3. I have taken pictures of the accident scene, but months later, to show how the accident had occured if the case goes to trial.
The insurance company has never sent a letter admitting guilt on their client's behalf. Is this standard procedure?
a. the insured's insurance company has repaired my vehicle, is this considered an admission of guilt, or is it suffcient proving guilt just because I was rear-ended?

 

[Michael Wechsler]

First - why are you filing suit against the insurance company? It should be against the driver. Since there is insurance you may wish to seek legal representation. It may be well worth the investment and an attorney might be willing to take the case on contingency. In your case this seems very likely.

Second - pain and suffering is usually set by the courts after allegations are made and ridiculous amounts demanded. In general there are usually guidelines as to what injuries are worth. But remember... you still have to prove the case. The majority of these cases are settled.

Third - I don't know of any insurance company, or defendant for that matter, that would send a letter admitting liability. If that were the case, then there would be nothing to talk about and they would just pay up!

Last - anything that might have been paid will likely not be considered an admission of guilt. Public policy (usually, not always) provides that people would never offer to settle if their attempt to settle would be held against them.

There seems to be some paperwork unaccounted for and I'm not sure on what terms you received the payout or what state all this concerns.

 

[kenobisan]

Obviously, most lawyers would take the case on contigency. However, the cost of legal representation for the simplicity of my case has simply been abhorrent.
If I had been completely incapacitated, the cost of business/representation would be palatable, but for the medium harm endured, representation would be an expensive proposition.
Therefore, I need advice on self-representation and how to seek legal advice, and ultimately representation if the case would lead to trial rather than settlement.
The act of filling, and the paperwork seem quite straightforward, and a person of even limited cranial capacity should be able to sift thorugh it and handel their case up until the point of an actual court date.
Due to a lack of experience, I don't know the caveats of filling where en experienced lawyer would make a handy reference, but not at the cost of 33 or more for contigency.

 

[Michael Wechsler]

There is a limitation by law for all contingency agreements. An attorney cannot take more than, e.g. 33% in some states, of the recovery. However, there are significant court costs involved as well as time investments. In the long run, you may not be saving yourself much and, in addition, what you do in "preparing" a case for court could damage your case significantly in court. At the most basic level, statements you make may not be sufficiently pleaded, you may make certain admissions that strategically could be damaging to any leverage you may have, you may not ask for remedies that you should have asked for and you will not have an opportunity later to cure.

The first thing I would do would view a sample complaint. We may be able to make one available here but the best is to match up the injuries to a similar complaint. They are available in your local courthouse although you will need to identify which cases deal with those injuries.

Additionally, if the matter is so simple, you should feel free to negotiate with an attorney to take the case for less than the maximum available under law. Attorneys love slam dunk cases but frequently there is more involved than what appears to be a clean trip to the hoop...

As you can see, the multiple questions you have are just the tip of the iceberg. It would likely take an attorney, who is not well versed in personal injury, a significant amount of time to properly file and prepare. You can always start the paperwork in motion by filing a summons and complaint but be prepared for the "motion practice" to come into play quickly. This is all work done pretrial which there are court appearances, requests for information, specific pleading of amounts claimed for damages, etc.

Yes, I know the dispute seems like a simple matter -- it may be. Yes, you might be able to handle and settle the case yourself -- that would be terrific. However, if you find that, at this late date, you simply cannot induce the insurance company to settle through your own measures you should consider hiring an attorney. They may be able to induce settlement greater than you would have been able and you'll end up with the same amount of money and far less stress than having not hired the attorney in the first place.

 

[kenobisan]

Personally, I would love to the handle the case by myself. However, realistically I need the coaching of an actual lawyer.
So far I have been unsuccesful in acquiring the services of competent lawyer.
If I were to negotiate for reduced contigency, what is a realistic percentage?

 

[Michael Wechsler]

Originally posted by kenobisan:
Personally, I would love to the handle the case by myself. However, realistically I need the coaching of an actual lawyer.
So far I have been unsuccesful in acquiring the services of competent lawyer.
If I were to negotiate for reduced contigency, what is a realistic percentage?

Good question. First of all, what state or rural area are you near? Depending upon the economic situation and number of attorneys in the area, you might be able to convince an attorney whose business is slow to assist you. It may even pay to use someone with some experience (e.g. a year in PI work) to assist you since his experience is limited but he has enough to know the system.

However, here is where it gets tricky -- the attorney may not want to be your attorney of record and you may need to continue to redraft attorney-client agreements after each stage. It's really a trade off here -- you can save money by laying out some of the cash for some coaching and recovering it with a 100% recovery. On the other hand, bring your case to an attorney for consultation. Let him/her tell you what could be the difficulty in winning the case. If you already know this since it seems you have done a great deal of research, you need to evaluate just how risky the proposition is for the attorney. Remember, this is a HUGE risk for this attorney -- nobody pays for his/her expenses while the case is ongoing. This can easily run into tens of thousands of dollars by adding up drafting, appearances in court, photocopying (this can be huge), depositions, preparation of witnesses, etc. It is all dependent upon how quickly the case can be settled and whether it is not likely to go to trial since the evidence is overwhelming.

Hope that helps. Perhaps after doing all this legal work you should consider going to law school and becoming a lawyer!! Good luck...