Individuals injured in accidents caused by another party’s negligence can seek compensation for the expenses of their injury through the personal injury claims process. An experienced personal injury lawyer plays a critical role in this process, using their knowledge of the law to negotiate a settlement or even litigate a claim on behalf of their client.
Lawyers generally first learn about your accident from you, then conduct a thorough investigation of your case to obtain evidence and witness testimony that proves your claim. Here is a look at the parts of the personal injury claims process that involve the lawyer learning about your accident.
The Free Case Evaluation
Contrary to popular belief, personal injury lawyers are not chasing ambulances or lurking in hospital lobbies, handing out business cards to injured patients. They generally learn about clients’ cases when they request a free case evaluation.
A case evaluation is when an injured party has to discuss their case with an attorney. They can learn more about their personal injury claim, get answers to the legal questions about filing a claim, and receive information about the law firm that the attorney works for and the services that the firm’s legal team can provide to recover compensation for the client.
As the name suggests, case evaluations are free. They are one of the two ways that personal injury lawyers help ensure that anyone who needs help with their claim has access to quality legal services. The other way personal injury lawyers make their services available to those in need is through the contingent fee method.
Unlike different types of lawyers who require retainers or bill their clients by the hour, personal injury lawyers allow their clients to wait until there is a successful resolution to the claim before being paid for their services. Instead, they receive a percentage of the negotiated settlement or court award they receive on behalf of the client.
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The Investigation
Once you have entered into a contingent fee agreement with your attorney, they will investigate your claim.
There are many types of investigations that can occur after an accident that involves personal injury, including:
- An investigation by a law enforcement agency. While the police do not investigate all types of accidents, they will often be called on to investigate accidents involving injuries, particularly if those injuries result from negligence. The purpose of the police investigation is to determine if the negligent behavior is also a violation of any local, state, or federal laws.
- An investigation by the at-fault party’s insurance provider to determine how much money the claimant deserves for the negligent actions of their insured.
Unlike other investigations, the investigation conducted by your attorney and their legal team is done on their behalf to prove the two most important aspects of your claim, which are:
- What were the financial and psychological impacts of the harm they caused you?
Certain Types of Evidence and What They Tell Your Attorney About the Accident
When investigating your case, your attorney will be looking for specific evidence that can prove your claim.
Here is a look at some of the most common evidence evaluated by personal injury attorneys.
- Police produced a report. The police report is often inadmissible in court, as the officer is writing details gleaned from the parties involved and witnesses to an accident that the officer likely did not witness. However, you can use a wealth of information in these reports, including the names and contact information of all parties involved and witnesses; a narrative of how the accident took place; information provided by the parties and witnesses, as well as evidence found at the scene, such as skid marks and known traffic and weather conditions at the time the accident occurred; and any citations issued or arrests made of parties at the scene through the investigation, or results of chemical testing for alcohol or drug tests ordered on any of the parties involved.
- Photos from the accident scene. In car accidents, photos of the damage to all vehicles involved can tell a lot about how the accident occurred. For example, if one vehicle sustained damage to the rear while the other vehicle sustained damage to the front end, it is a good indication that a rear-end collision occurred. Other useful photos include those that depict the traffic and weather conditions at the scene and the visible injuries suffered as a result.
- Your medical reports. When you receive medical assistance for your injury, health care providers will begin creating documentation of your injuries and the procedures used to treat them. The severity of your injuries can significantly impact the value of your claim, with the incurrence of permanent injuries, complications arising from the injury, or injuries requiring painful and frequent treatments valued more highly.
- Other documentation of expenses, including proof of wage loss, bills for vehicle repairs, or the cost of other damaged personal property, can help an insurance claims adjuster or court understand the financial burdens you experienced due to another’s negligence.
Discovery
All states have a personal injury statute of limitations, the deadline by which you must file the claim. For example, in California, the personal injury statute of limitations is two years from the accident in most cases. The claim does not have to resolve within this time frame, you merely must fill it. Disputes are usually resolved by settlement even after filing a lawsuit.
Once you file suit, your case will enter the discovery phase of the claims process. This step is when your attorney can learn more about the accident by accessing evidence from the defendant and their insurance provider.
They may have access to:
- Driving and personnel records of a driver who caused an accident while on the clock. For example, a truck driver who caused an accident while en route to complete a delivery.
- Details about the sources of insurance that the at-fault party has available to provide compensation.
- Details of witnesses for the defense who can be questioned under oath in out-of-court testimony.
Witness Depositions
Depositions are sworn, out-of-court testimony provided by the parties involved in a personal injury claim and witnesses for either side. While the testimony in a deposition is generally inadmissible in court, like police reports, this testimony can yield several new sources of evidence that can prove the claim.
How the Evidence in Your Case is Used?
Some evidence can prove that another party was liable for the accident that caused your injury.
Proving liability requires showing the following elements in a claim:
- Duty: The at-fault party had a duty to take reasonable actions to safeguard others from incurring harm. For example, the duty owed by a driver on a public roadway is to drive safely and legally.
- Breach: The at-fault party took action (or failed to take action) contrary to the duty owed to others in a given circumstance. Using the car accident scenario, a breach in the duty of care could include driving while impaired or driving faster than the posted speed limit. Both of these actions violate traffic laws and increase the likelihood of an accident that could physically harm people or property.
- Cause: The illegal or unsafe actions of the at-fault party led to an accident that injured you.
Other evidence can justify the value of your claim. A claim’s value is the monetary value attached to the expenses and impacts incurred due to the accident. While most people understand they can claim out-of-pocket expenses such as medical treatment and the cost of the damaged property, they do not realize they can obtain other compensation.
This compensation includes:
- Lost income and benefits for the time you were too injured to report to work.
- Loss of earning capacity if your injuries are severe and permanent and limit your ability to earn an income.
- The impact that your injury has had on your quality of life, including the amount of physical pain and suffering you incurred as a result of the injury or treatment of it, as well as emotional distress caused by the accident and the severity of the injuries sustained, and other impacts such as loss of the enjoyment of life.
In Settlement Negotiations
After your attorney has examined the facts to determine fault and insurance resources (and you have reached maximum medical improvement), your attorney will:
- Establish a value for your claim based on available insurance, the severity of your injury, and the presence of permanent injuries that will impair your ability to earn an income in the future.
- Submit a demand to the at-fault party’s insurance provider for the claim’s full value. The demand will include evidence of liability and documentation of your expenses.
The insurance provider will assign a claims adjuster to evaluate your claim. This adjuster will look at the evidence submitted with the demand and will likely seek to obtain additional evidence to determine an appropriate settlement offer. Remember that what a claims adjuster who works for an insurance company, not the injured party considers fair and what the claimant needs to adequately cover the expenses and impacts of their injury are often very different.
Your attorney can provide additional evidence during settlement negotiations that help the adjuster understand their insured’s liability and increase their offer to avoid the expense and uncertainty of court.
In Litigation
Personal injury claimants often ask: Will my case go to court? Statistically, the odds are much higher than your claim will end in a negotiated settlement. Estimates are that about 95 percent of pending lawsuits in the U.S. settle without going to court. However, litigation is incredibly powerful if the at-fault party’s insurance provider fails to adequately compensate your claim. Litigation allows a judge or jury to consider the evidence and decide whether you are entitled to compensation.
To prepare for litigation, your legal team will create evidence exhibits so the court can see important aspects of the accident that prove your claim. Additionally, your lawyer will call on individuals who witnessed the accident or can offer testimony to help the court better understand how the accident occurred. In some cases, medical professionals, accident reconstruction specialists, and other types of experts will also be called on to provide information that can be helpful as the court makes decisions about your claim.