Television advertising for lawyers is in full throttle this time of the year. I suppose the advertisers assume that everyone is stuck inside with bad weather and so it is an ideal time to inundate the masses with mindless advertising.
The approaches are varied. One approach being used is from a retired workers' compensation judge who asks the question whether you actually need a lawyer. He cites statistics that supposedly show that hiring a lawyer makes a difference. Yet, how do you know in the individual case?
My approach to the client varies from case to case. If recovery from the injuries occurs within a couple of months after the collision and there are no long-term effects from the accident, the client can usually negotiate a settlement without hiring an attorney. On the smaller cases, the insurance company will usually pay the client some amount close to what an attorney would be able to negotiate. Thus, it does not serve the client well to hire an attorney.
There are other cases in which the injuries are substantial, but the insurance coverage is not adequate to compensate the person for his or her injuries. I have recently been helping a lady who was walking across the street in a crosswalk and was struck by a motorist. She suffered several fractures to her pelvis and has been immobile for a couple of months. The driver who struck her had more insurance than the minimum limits of $25,000, but not enough coverage to adequately compensate her. In this case, I have given her guidance on how to obtain the limits of coverage from the insurance company without hiring me and more importantly paying me.
The most important task is to determine the limits of coverage. If the insurance company won't tell you, it is either because they do not think your claim rises to the level of the limits of coverage, or they just want to be secretive. They hide behind the excuse of protecting the privacy of their insured, but the limits of coverage can be quickly determined after a lawsuit is filed, so there is no reason to protect anyone's privacy.
I normally ask the insurer for an affidavit from the responsible driver confirming that there is no other insurance available that insures the driver. In some circumstances, the driver is insured under more than one insurance policy with more than one insurer and so it is important to determine this, especially on more serious cases. I also ask that the insurer to confirm that their insured was not working at the time of the collision, because the employer is also liable for the injuries if the person is serving the interests of his or her employer at the time of the accident. Finally, we ask the insurance company to provide a certified copy of the declaration page to confirm the limits of coverage.
If the insurance company has satisfied you that they have revealed all of the insurance coverage and is willing to pay its limits, the next step is to sign a settlement agreement or release. There is no reason to release anyone from liability other than the driver, the insureds on the policy and the insurance company, but insurance companies love releases that are general in nature and release all claims past and future and everyone in the world. These releases can be problematic later if another claim arises. Thus, it is important that you not sign a general release.
I am happy to give this advice to clients because I don't think it is fair to take money from the client that is rightfully the client's money. In some cases, I might charge an hourly fee for helping someone through the process, but I think is immoral to take a percentage of someone's money when I really did little to insure that amount was paid.
There are many cases in which an attorney's help is needed. If the injuries are significant and disabling, a lawyer specializing in such cases can maximize the value of the case. There are attorneys who try to handle these cases that ordinarily don't handle such cases on a regular basis, and would be better off getting an attorney involved who specializes. The insurance companies know who the lawyers are that are willing to do battle in the courtroom and those who are afraid to go there. I always tell the client it is like pitching to one of the best hitters in baseball as opposed to a rookie who has not proved himself. Who do you think the insurance company is going to respect? Whether it is fair or not, the insurance company is going to pay more money to the experienced attorney because the risk is greater.
I subscribe to the theory that a lawyer is not needed in every case. Of course, once a lawyer is hired, there is no way to effectively prove that it was worthwhile. If the lawyer seems overly anxious to take your case, that is probably a signal to find another attorney. It is our duty to help people and not to take advantage of a bad situation. I tell my clients that my goal is to turn a bad situation into a good one.
Bob Buckley is an attorney in Independence. Email him at firstname.lastname@example.org