Imagine being involved in an auto accident and it is NOT your fault. The first thing to worry about is your health. You’re injured. Then, to add to that injury, you have the stress of all that comes with being hurt, unexpectedly in an auto wreck. Your car is wrecked. You’re also in pain. You can’t go to work. You can’t take care of family commitments. You now need to take time to get to a doctor, or worse yet, go to the hospital. You don’t know if the other driver’s insurance company will agree to pay for your car or your car? By the way, who pays for your care? It is going to be expensive! What happens if the other person lies to their insurance company about the facts of the accident? What if the police officer does a terrible job filling out the accident information and doesn’t place fault on the right party? What about your insurance company; do they have to pay if you are not at fault? Will your rates go up if you were not at fault? What about the NO-FAULT laws? Does that mean no driver is a fault when clearly the other person WAS AT FAULT!? So many unknown issues. Here is the scary part: Your first decisions after the accident will dramatically affect the outcome of a legal case, and your legal case could be worth hundreds of thousands of dollars!
Here are the top mistakes people make and how you can avoid killing your injury case.
1. Fail to go to the hospital or get proper medical care
If you don’t go to the doctor, you are not hurt. Period. The truth is no going to be relevant. If you don’t go you can’t expect anyone to believe you are hurt. If you are not hurt, you get no money. After an accident, regardless of which party is at fault, each person must be responsible for proving their own injuries. Not only must you show and prove you have an injury, but you must prove that the injury happened because of the car accident. If you wait and get medical care, a few days or weeks after your accident, the other person’s insurance company and your own insurance company will use that against you. They will claim that your injuries are no related to the accident. If they were you would have gone for treatment that day or the next day.
Certainly, we have had cases where the injured victim waits a week before they realize that the ‘aches and pains they feel are not going away but actually getting worse. Yes, we have gotten them a full and fair settlement in those cases. But in every case that happens that way, the insurance companies always argue that our client was injured in a different situation; which must have happened in the time between the car accident and when you got treatment. Meanwhile, even if you treat timely, even if the injuries clearly came from the accident, the insurance companies will find a way to argue that your injuries are not serious and so minor that they don’t deserve any money. This is a game they play to try anything to lower the settlement.
2. Fail to get documentation on the accident and the injuries
People forget facts. People think they remember clearly and then when the other side has counter-information, it makes you look like a liar. No jury will give money to a liar. If you are caught lying in any way a jury will punish you. This includes things that are inadvertent. For example: In a cruise boat accident where our client slipped on her way out of a club at the stairs, the client swore the club was filled and she was in a crowd. But later the video was produced by the cruise boat which showed she was alone when she fell. You may think she was lying. I do not.
I believe she believed her own story. But she came to us about 90 days after the accident. By that time her mind had played the incident over and over and she was convinced she was in a crowd when she fell. To stop this from happening make sure you write down what happened in detail after the accident. Write down ALL your pains and issues, even if they are small.
I had a client with a broken foot. He did not complain about it at the hospital after the motorcycle accident because his ear was hanging off his head and needed a plastic surgeon to sew it back on. That was clearly more concerning to him at that time. After he went home it took him weeks to get to our office. At that point, he was still limping and had not had any treatment for his foot. We sent him to an orthopedic specialist who found his broken bones. We got the insurance company to accept the injuries were related to the accident because he had taken a photo of his toenail, which was also ripped off. That documentation saved a solid damages portion of his case.
So, take photos, get medical records, complain to the doctor about every possible problem, especially any head injury, fogginess in your mental status, behavior issues, emotion instability and be certain to keep a journal. Write down how you are feeling in the morning and after lunch and before bed each day. I know that sounds really hard if you are not a natural journal keeper, but I promise it will greatly help refresh your memory when you are facing a jury in a trial a year or two after your accident.
Here is a list of things to make sure get great documentation:
- Photos of every vehicle in the accident. If you can take them on a phone at the scene that is great. If you can get others to take them and send them to you, also great! If you need to get them afterward, get them done. Go to the body shop, go to the tow year. Get every angle of the car, underneath, on top, sides and corners. Inside and out! One time my client was saved because she took a photo of the inside of her car and the photo revealed that her lights were on. That was an important photo when the defendant said that she caused the accident because she “…came out of nowhere and didn’t have her lights on.
- Make a sketch of the areas where the accident happened. Map it out in your mind and on paper. It will help you explain why the accident occurred.
- Get the witnesses ‘ names and contact information, including address, cell and work number, email address, and a quick outline of what they saw and what they can testify to.
- Take any injury pictures you can to show what is damaged.
3. Give any Insurance Company a Statement without first getting your own attorney to prepare you.
The insurance company is smart. They want an early statement. They do not want you to get an attorney for that statement. They want to use that opportunity to trap you into a set of facts that help them limit the damages and lower their obligation to pay you in the future. They are NOT your friend. They are NOT looking out for your best interests. They are trained to be nice, empathetic people who sound like they want to help. But never trust anyone who is working for an insurance company.
Also, be aware that they are going to call you very quickly after the wreck. They will request you provide them a recorded statement. Many of these are not in person, they sound informal and are completed over the phone. DON’T do it. Say, “I am uncomfortable giving a statement without representation. I will have my lawyer call you.” Even if you don’t have a lawyer, go get one! This is especially true if are recovering from an accident-related injury. Plus, for many people, it is nerve-wracking to do a sworn statement without legal help.
Don’t go in unprepared. If you do give the statement remember “less is more.” Most people talk WAY too much. They say things that they didn’t mean to say. The insurance companies love that! They know they can use every one of those very human slips to their advantage to discredit you. Here is your Miranda Warning “Everything you say in a recorded statement can and will be used against you in the future.”
4. Signing a Release or an Authorization
If you sign a Release of a claim for any reason, it is almost always a ballgame. Game over. Case over. You lose! Never sign any Releases without an attorney’s advice. Also, don’t sign an Authorization without an attorney’s advice. When you do you are likely giving up legal protections you have to keep your private information private. Most of the time the big “release” used by the insurance companies is for medical records. Sometimes this is mandatory and other times it is not. But you should not permit any Insurance Company to have complete access to your entire medical history because they will go get it and have a nurse detail your entire medical history to determine if you ever experienced a similar injury in the past. When they find that information they don’t tell you. They wait. They get a lawyer to ask you about prior injuries and accidents. They ask you clearly about 10 times if you are sure you have told them about all your injuries. Then the ask if on XXX date in 1997 you hurt your knee playing softball with your pals after work, you look terrible when you say “Oh yeah, I forgot about that.” If you never gave them the right to independently go after all the medical records then your attorney would have the same records and you would have been prepared to tell the defense attorney about that past injury because your own lawyer would have known about it.
5. Stop Treatment Early
If you stop treating you are not hurt. You must keep going to the doctors till they discharge you. Injuries take a minimum of 6 months to heal. That is a good amount of treatment. But the AMA Guidelines force doctors to wait for 6 months before they can take an injury and determine it is acute. Your doctors will prescribe many different types of therapy. This could include chiropractic, physical therapy, massage therapy, acupuncture, and pain management, and surgery. Every step in that chain must be accomplished or your claim gets devalued. Don’t skip any of your doctor or therapy appointments. When an insurance adjuster notates that you are skipping appointments, or if you have large time lapses in care, they concentrate on those gaps and make a note that you must not be as serious about your injury.
6. Settle before you are at MMI – Maximum Medical Improvement
Never settle before you know the long-term outcome of the injury. Some insurance companies try to contact the injured person very soon after the accident. They are trying to determine if they can convince you to settle before you know the extent of your injuries. That is terrible. How can you know the seriousness or permanent nature of your injury before you are at the point of Maximum Medical Improvement? We had a woman force us to settle her case early. She said she would never need neck surgery her doctor prescribed. 4 months after the settlement she called us back. She asked if we could reopen the case because she could not live in the pain any longer. She wanted the surgery. Sadly she could not go back and ask for more money once she settled. She did get the neck surgery and paid almost all her settlement funds to cover the deductible and co-payment responsibility for the surgery. I am happy she feels better but had she waited to take the settlement (as we begged her to do) she would have ended up with the surgery and afterward we could have settled for hundreds of thousands of dollars more than she originally got.
7. Settle without an Attorney
There is a saying: Data Don’t Lie. The data is clear, you will get between 300% – 1000% more from the insurance company using an attorney. We, the personal injury attorney community, are experts in evaluating injuries. We do this daily. We understand insurance companies. We know how to counter their strategy in undermining the case. We know most of the adjusters. We get along with many of them. I can testify they laugh about how little they pay to injured victims who try and negotiate without an attorney. If you chose an attorney who knows the specific legal issues involved in your case you are another step closer to a maximum settlement. If you pick a lawyer who has the reputation of actually going to trial, it will again increase the value of your case. Plus, if you don’t have an attorney the adjuster may try and drag out settlement talks until the statute of limitations runs. This happed to a passenger on a cruise boat recently. She was negotiating with the adjuster about her injury which happened on the cruise. The adjuster was super nice. He explained that he was given authority to settle with her and that they would accept responsibility. She would give him an offer and he would lowball her a counter offer. Then he would disappear for weeks but call her back and say he had more money. Each time the money was just a little more. He would tell her “candidly I can get more but I need to ask slowly.” Then one day he said he was no longer authorized to discuss settlements with her. He told her to go get an attorney to bring her claim. He wrote her a formal letter saying they decided not to pay the claim and good luck. Sadly she had blown her statute of limitations and there was nothing we could do to help.
8. Wimp Out on your own case
We have heard many times: “I Don’t Want To Sue Anyone.” The truth is that NO ONE wants to sue anyone unless they are a powerful corporation doing it for business advantage. We, trial lawyers, don’t want to sue anyone. Litigation is supposed to be reserved for cases that cannot be otherwise resolved. We want to resolve them early, quickly, and for maximum value. Sometimes the Insurance Company simply forces you to battle. They know many many people are more afraid of litigation than the dentist! Insurance adjusters know people are reluctant to sue and so they offer money slowly. The only people who can convince an adjuster to offer a fair settlement are people the adjuster respects. Respect comes from not accepting low ball settlements and going to court and forcing the insurance company to pay a fair amount in a trial. Pick a lawyer who can get you the money because they have a track record of getting lots of other people the money.
If you decide to obtain a personal injury attorney, make sure they are experienced and will be the right partner for you in your personal injury case.
