When a person has been injured and they call my firm, potentially looking for representation, these are the most common questions that I hear. I often explain that the majority of these questions do not have an answer, right now, as your accident just happened, but I do try to give estimates and examples, always with the explanation that every case comes with a different set of facts and will most likely end with its own unique results. Below is a discussion of the 5 most common questions I hear from potential new clients.
1. How long is this going to take?
When this question comes up, I explain that I wish I had a crystal ball and could answer this question accurately, with precision, but since I do not have a crystal ball, I can only give some potential time spans! First of all, the first portion of your claim is the treating phase and if you are able to settle your case, without filing a lawsuit, the treating phase will most likely be the longest phase. Depending on your injuries, your treating phase could last from one month to years. This is also a question to be best answered by your doctor! Once you complete your treatment, assuming it is before the statute of limitations runs on your claim, it is the medical records gathering phase. Again, these are all estimates, as each case is unique, but on average, it takes about six weeks to get medical records and bills in. What can make it take longer? Great question! Providers spell names wrong, enter dates of birth wrong, fail to complete records, fail to provide complete copies of records requested…I could probably go on, but I am sure you get my gist. Once the medical records and bills are all completed, a demand is prepared and sent to the adjuster. This is not set in stone, but you can look at about a 30 day wait for an initial offer. Then is the negotiation phase, which also varies greatly, from adjuster to adjuster and company to company. Some negotiations last for one month, some last for six months. If you are able to get the claim settled, you are looking at a minimum of 30 more days for the insurance company to get the settlement check to your personal injury attorney and the check to clear the personal injury attorney’s trust account. If the top offer is not acceptable and you want to file a lawsuit, you need to be prepared for a much longer wait. On average, it takes about two years, from the point that a case if filed, to make it to trial, and again, every case is unique, and this is just an average.
2. What is your fee?
This is the only question that I can answer, every time. Most personal injury attorneys charge a 1/3 or 33.33333% contingency fee. This means that if your case settles for $90,000.00, then the attorney’s fee will be $30,000.00. A common question that follows that answer is, “Is your fee taken before or after the medical expenses?” Also a great question! The personal injury attorney’s contingent fee is determined by the contingency fee agreement and most of the ones that I have seen allow for a 1/3 contingency fee of the entire settlement, as shown in the $90,000.00 example above. One other side note, most personal injury attorney’s increase their fee to 40%, if a lawsuit must be filed.
3. What is my case worth?
Another crystal ball question! There are so many factors that adjuster and juries look at to determine the value of a case, that in the early phases of a case, this is pretty much impossible to answer. Attorneys can definitely rely upon their years of experience and expertise to give an “educated guess” and explain what they are relying upon to make that guess, but it is still a guess. To determine the full value of a case, the adjuster or jurors need to know about medical expenses, lost wages, scarring, disfigurement, loss of enjoyment of life, how the victim’s life was effected, how the lives of the victim’s family were effected…so many aspects go into the value of a claim, that early on, it is pretty much impossible to give an accurate answer.
4. Am I required to pay all of my providers from my settlement?
There is a little more certainty to this answer, as well. Out of your settlement, the law requires you pay all lien holders (statutory obligation), any medical providers, that treated you for injuries sustained in your accident and you provided them with a letter of protection (contractual obligation), and any party with a subrogation interest (contractual and/or statutory obligation). Those are a lot of big legal words! Typically, the liens you see are from hospitals, who provided emergency services within 72 hours of the accident. Another lien that attaches to the settlement is a child support lien. A letter of protection is a letter that your personal injury attorney provides to your treating doctor, with your permission, that says, basically, if the doctor will treat you, without payment up front, you will pay them from your settlement proceeds. Sadly, there are some victims without health insurance or the funds necessary to pay for treatment, up front, and a letter of protection is a viable option for victims in that situation to get the treatment they need. Subrogation is basically a request for repayment. If your health insurance has paid for treatment of injuries, following the wreck, they may have the right to ask to be paid back from the settlement; it depends on what your policy says, regarding subrogation. Medicare, Medicaid, Tricare, VA…these are all governmental entities that MUST be repaid from your settlement, if they paid for any treatment related to the wreck. Now, this is not to say that the victim does not owe a provider for treatment, just that only providers or parties covered by liens, letters of protection, or subrogation rights MUST be paid from the settlement. Also, victims can always set up payment arrangements with providers or pay them directly, and in the end, that would be less settlement funds to medical providers, as they would already have been paid.
5. How much money am I going to get?
Number one question…you guessed it…How much money am I going to get? Another crystal ball question. So many factors effect what a client gets in their pocket, after an accident. Some things to look at, to help answer that question, at some point, are (1) what types of injuries did you sustain? (2) are there any aggravating factors…drunk driver, hit and run, texting while driving, commercial driver? (3) did you get consistent treatment (if time has passed)? (4) did the person that caused the accident have liability insurance? (5) did you have uninsured or underinsured motorist coverage? (6) do you have personal injury protection? (7) do you have health insurance? (8) do you owe a child support lien? (9) was a lien filed for your emergency room treatment (if you had any)? I saved this question for last, because some other the others above, give some insight into what a personal injury attorney would need to know, to give an “educated guess”, at some point.
If you are frustrated that most of the answers are “educated guesses”, you are not alone. It is frustrating to me too, but that is part of the job. After almost twenty years of fighting for the rights of the injured, I have learned, you have to take it one day, one case, one unique set of facts at a time.