Personal injury law (also known as “tort” law) allows an injured person to file a civil lawsuit in court and get a legal remedy (“damages“) for all losses stemming from an accident or other incident.
The purpose of the personal injury system is to allow the injured person to be compensated financially or “made whole” after he or she has suffered harm due to someone else’s negligent or intentional conduct.
The Basics of Personal Injury
There are a wide variety of different situations where personal injury rules apply:
Personal injury rules apply in situations where someone acts in a negligent manner, and that carelessness causes harm to another person. Examples include car accidents, slip and fall incidents, and medical malpractice, among other types of cases.
Personal injury laws apply in situations where a defendant’s intentional conduct causes harm to another person. Examples of this include assault and battery, and other intentional torts.
When a vehicle component, consumer product, medical device, pharmaceutical, or other product is defective or unreasonably dangerous, anyone harmed by use of the product might be able to file a product liability lawsuit against the manufacturer.
Personal injury laws apply when one person’s defamatory statement causes harm to another.
Who Makes Personal Injury Laws?
Many personal injury laws date back to old “common law rules.” Common law refers to law made by judges, as opposed to laws made by legislatures or passed in bills and statutes.
When a judge hears and decides a case, her decision on that issue of law becomes binding precedent on all other courts in the state that are “lower” than the deciding judge’s court. These other courts then have to apply what the first judge said, and eventually, all of this binding precedent creates a body of “common law.”
Common law can and does differ from state to state, so the rules for personal injury law may not be uniform across the country. Much of the common law has been collected into something called the Restatement of Torts, which is a sort of guidebook that explains what the rules are, and a lot of states draw guidance from this on personal injury matters.
Common law is not the only source of personal injury law. Legislatures have passed statutes (laws) that touch on personal injury issues. For example, when legislatures passed workers’ compensation laws, they essentially took all instances of work-related injuries outside the realm of personal injury and made workers’ compensation the exclusive remedy for injured workers (in most cases precluding injury-related lawsuits against employers).
Another state law that comes into play in injury cases is the statute of limitations, which sets a limit on the amount of time you have to file an injury-related lawsuit in your state’s civil court system. Learn more about time limits to file a personal injury lawsuit in Texas.
How Does a Personal Injury Case Work?
No two accidents are exactly the same, so no two personal injury cases will follow the same path. But there are some standard steps that most personal injury cases take, from a big picture standpoint.
Defendant Does Something to Injure Plaintiff.
This can be almost any bad act on the part of the defendant, with the exception of contractual breaches, which are handled under a separate body of law known as “contract law.”
Plaintiff Determines that Defendant Breached a Legal Duty.
The specific legal duty is going to depend on the situation in which the injury occurred. For example, drivers have a duty to operate their vehicles with the level of care that a reasonable person would exhibit while on the road. Doctors have a legal duty to treat a patient in accordance with the applicable medical standard of care. Manufacturers and distributors have a duty not to put defective or unreasonably dangerous products on the market.
Settlement Talks Occur.
If it is clear to all involved that the defendant breached a legal duty, then the defendant (or the insurance company representing him or her) may wish to settle outside of court. This would involve making an offer of monetary compensation to the injured person, in exchange for the injured person’s binding promise not to file a lawsuit over the injury.
If a plaintiff agrees to a settlement, the case ends. If not, the plaintiff may go to court and file a personal injury lawsuit over the matter. Settlement negotiations can also continue once the lawsuit is filed, and a settlement can be reached at any time prior to the civil case being handed over the jury for a finding as to the defendant’s liability.
If you’re thinking about filing a personal injury case after any kind of accident or incident, your best first step might be discussing your situation (and your options) with a personal injury lawyer.
Devise your best strategy for negotiating a personal injury settlement after any kind of accident.
Once the personal injury settlement negotiation process starts to heat up in your case, you’ll need to have an effective strategy in place. Following these six settlement tips is a great start.
1. Have a Specific Settlement Amount in Mind
In putting together your personal injury settlement demand letter, you figured out a range of what you believe your claim is worth. Before you speak to an insurance adjuster about your demand, decide on a minimum settlement figure you would accept within that range. This figure is for your own information, not something you would reveal to the adjuster. But before the offers and counter-offers start going back and forth, it helps if you already have your bottom line in mind.
Remember, you don’t have to cling to the figure you originally set for yourself. If the adjuster points out facts you had not considered but which clearly make your claim weaker, you may have to lower your minimum figure somewhat. And if the adjuster starts with a low settlement offer or a number at or near your minimum—or if you discover evidence that makes your claim stronger—you may want to revise upward.
2. Do Not Jump at a First Offer
It’s standard practice for insurance adjusters to begin negotiations by first offering a very low amount. With this tactic, the adjuster is trying to find out whether you understand what your claim is worth, and your patience.
When a first offer is made, your response should depend on whether it’s reasonable but too low, or so low that it’s clearly just a tactic to see if you know what you’re doing. If the offer is reasonable, you can make a counteroffer that’s a little lower than your demand letter amount. That shows the adjuster that you, too, are being reasonable and are willing to compromise. A little more bargaining should quickly get you to a final settlement amount you both think is fair. In these negotiations, don’t bother to go over all the facts again. Just emphasize the strongest points in your favor—for example, that the insured was completely at fault.
3. Get the Adjuster to Justify a Low Offer
If in your first conversation, the adjuster makes an offer so low that it’s obviously just a negotiating tactic to see if you know what your claim is really worth, do not immediately lower the amount you put in your demand letter. Instead, ask the adjuster to give you the specific reasons why the offer is so low. Make notes of the conversation. Then write a brief letter responding to each of the factors the adjuster has mentioned. Depending on the strength of the adjuster’s reasons, you can lower your demand slightly, but wait to see whether the adjuster will budge before going any lower.
The next time you speak with the adjuster, begin by asking for a response to your reply letter. The adjuster should now make you a reasonable offer that can lead to a fair final settlement figure.
4. Emphasize Emotional Points in Your Favor
During negotiations, mention any emotional points supporting your claim. If, for example, you have sent the adjuster a particularly strong photo of a smashed car or a severe-looking injury, refer to it. If there was a bottle of beer found in the other driver’s car, refer again to the possibility of alcohol use. If similar accidents had occurred in a similar way at that location, remind the adjuster. If your injury interfered with your ability to care for your child, mention that your child suffered as a result. Even though there is no way to put a dollar value on these factors, they can be very powerful in getting an insurance company to settle an accident claim.
5. Wait for a Response
Do not reduce your demand more than once until you have a new offer from the adjuster. Never reduce your demand twice without an intervening increased offer from the adjuster; it’s simply not good bargaining.
If the adjuster comes up with more reasons for a low offer, go over each one. Once you have dealt with all the adjuster’s arguments, you will either get a reasonable offer, or you will have found out that no reasonable offer is coming and you will have to try to put some additional pressure on the insurance company.
6. Know When to Engage an Attorney
If at some point you feel negotiations are not going as you’d hoped, you might consider talking to a personal injury lawyer, especially if:
- You are demanding compensation for serious injuries and pain and suffering beyond a few thousand dollars. An insurance adjuster is unlikely to take an unrepresented claimant seriously when claimed damages add up to tens of thousands of dollars or more.
- You are seeking future damages. If you are claiming lost future income or costs of medical treatment you’ll need later, you may want an attorney to work that into a settlement effectively.
- There is a question of fault. If there is some question as to who was at fault for the underlying accident, you may need an attorney to properly craft your argument.
7. Put the Settlement in Writing
When you and the adjuster finally agree on a number, immediately confirm the agreement in a letter to the adjuster. The letter can be short and sweet. See this sample settlement confirmation letter to get a feel for what this document might look like.
Do you need a personal injury lawyer?
Many people handle simple injury claims on their own, and save on legal fees, but serious cases often benefit from a lawyers experience and expertise.
Did the injury occur at work?
Personal injury claims cover a wide variety of situations and different types of accidents. You may have been injured in a car accident, by slipping and falling on someone’s property, or bitten by a neighbor’s dog. All these things are considered personal injury and the level of your injury can make big a difference in processing your claim.
In some situations, you may be capable of handling a claim through insurance or Small Claims Court against the other party on your own. Other times, you may want to seek the advice and assistance of a qualified legal professional. It all depends on the severity of your injuries and the legal elements of the accident.
Managing Your Own Case
Attempting to handle a claim on your own only to hire a lawyer later may complicate the claim process, so it’s important to understand what you’re capable of and what’s at stake if you mishandle your case. If you are unsure about what to do or how to handle a claim, you may consider contacting an attorney immediately after your injury for a consultation to find out if a lawyer is worth the cost.
Here are a few examples of cases that you may be able to handle without an attorney:
You Were in a Car Accident With No (Or Very Minor) Injuries
One of the most common types of case involves injuries caused in auto accidents. Someone might rear-end you at a low speed and cause minor damage to your vehicle. The injuries to yourself or your passengers might result in a few visits to the doctor’s office. Filing a claim with your insurance, or the other person’s, will often be efficient and enough compensation to cover the costs of the repair to your car and the medical expenses incurred because of the accident. If this is the case, and you are satisfied with the coverage and service you receive from the insurance claim, there could be no need to call an attorney or seek further legal advice.
You Live in a No-Fault State
The no-fault rules do not allow you to sue unless your injuries rise to a certain level (determined either by the nature of the injuries or the cost of treating them, depending on where you live). Since you are limited to recovering damages from your own personal injury protection coverage in a no-fault claim, hiring a lawyer for minor injuries may not make sense here. However, if there is a possibility that your injuries might be “serious” enough to qualify you for stepping outside of the no-fault system, then hiring a lawyer becomes a good idea.
You’re Already Receiving the Maximum Amount Available
Insurance companies will only pay out to their policy limits. This means if the defendant who injured you has a $100,000 maximum insurance policy and you’ve been offered a $100,000 settlement, even getting a larger verdict may not be useful to you. Any additional dollars over what the insurer is offering would have to be collected from the defendant directly. If the defendant has assets or money, then it may be worth it to try to collect additional damages if you believe you deserve them. However, if the defendant has little in the way of assets, then accepting the settlement is probably the best move.
You Are Confident You Can Negotiate Effectively With an Adjuster
You wouldn’t necessarily need to seek a lawyer’s advice if you are confident and comfortable enough to negotiate with the insurance agent on your own to reach a settlement amount which you consider fair. In the case that your situation is something where you decide to take the other party to Small Claims Court, you can represent yourself if you feel confident in the evidence you have gathered and your knowledge of the legal process.
You’re Comfortable Researching the Law and Settlement Process
If you come across obstacles along the way, a lot of information can be found in AllLaw’s Personal Injury and Car Accident sections. Make sure you learn about the most important issues, including fault and legal liability, state laws that affect your case, and compensation available for different types of damages.
This can involve a lot of time and research in order to understand the particulars of the law. Many people do not have the energy to put into this research and there are professionals who have already undergone that training and have intimate knowledge of the law: attorneys. If you find yourself spending more time than it’s worth, and getting frustrated by the complications of the details, it could be time to consider consulting a legal professional.
When You Might Consider Hiring A Lawyer
The insurance company you are making the claim against will have attorneys representing and fighting for them. Lawyers are professionals who spend years and countless hours studying the particulars of the law and gathering knowledge to represent their clients to the best of their abilities. If the insurance company or the party you are taking to Small Claims Court has legal representation, it may be something for you to consider as well.
Your Injuries May Not Be As Minor As You Thought
Many people are reluctant to hire a lawyer for injuries that seem relatively minor. For example, if you get into a car accident and you bruise your arm and suffer a few scrapes, you may not feel it is worthwhile to hire a personally injury attorney. And if the other driver’s insurance company makes you an offer to pay your medical bills and give you a few hundred dollars extra on top of that, it may not be worth the hassle of finding legal representation.
But there are a few reasons why you might consider making a phone call or scheduling an initial consultation with a lawyer, even for seemingly minor injuries.
Minor Injuries May Turn into Major Ones. If your injuries turn out to be worse than you and your doctor thought, and you have already accepted a settlement offer, there will be nothing you can do about it since you must give up any and all future claims arising out of the accident when you settle. A good lawyer will advise you to wait until you know the full extent of your injuries, and would help you to determine the right time to accept an offer.
You’re Entitled to “Pain and Suffering” Damages. Pain and suffering and emotional distress damages would be considered by a jury if your case went to court, and so a settlement that doesn’t include these types of damages might not be a complete one. Your lawyer can explain all damages you may be entitled to, even for injuries that seem minor, and will advocate on your behalf to make sure you receive a satisfactory settlement.
Small Cases vs. Serious Injuries
Whenever you suffer from serious injuries, you need to get an attorney. That’s because:
- Your lawyer can help you make sure you get the full spectrum of damages you’re entitled to.
- Lawyers are experts in negotiation and can maximize your recovery.
- The insurers and defendants may take your claim more seriously once you’re represented by an attorney.
What About My Insurance Company?
One reason many people cite for not hiring a lawyer of their own is that they have insurance, or that the other party has insurance. You may believe that insurance companies are there to look out for you. But in many cases, the insurance company’s interests are directly at odds with yours:
- You have a primary goal of getting as large of a damage award as possible to compensate you for all you went through.
- Insurance companies have a primary goal of paying out as little as possible so that they have more in the way of profits.
Affording a Lawyer: Contingency Fee Agreements
Another primary reason people may be reluctant to hire a lawyer is out of fear of paying legal fees. But almost all personal injury lawyers work on something called a contingency basis. This means that your personal injury lawyer will not be paid any money or legal fees unless you win your case or settle outside of court.
Contingency fee agreements work by allowing the lawyer to collect compensation right out of your settlement or damage award. It is common for the agreement to be structured based on a percentage of the amount of money you receive. For example, the agreement may stipulate that the lawyer gets 30 percent if you settle before a lawsuit is filed, one-third if you settle after the lawsuit is filed but during the discovery process, or 40 percent if the case actually goes to trial and damages are awarded by a jury.
Represented Plaintiffs Tend to Receive Larger Settlements
Based on a 1999 study by the Insurance Research Council, the average person receives a settlement 3 ½ times larger with legal assistance than without it. In a personal injury settlement this can make a huge difference. The particulars of the law depending on your situation can become complicated.
- What if the person who rear-ended you doesn’t have insurance, or if their insurance refuses to pay?
- What if the dog bite you received makes you seriously ill and ends up costing you thousands?
- What if the neighbor won’t take responsibility?
In these few quick examples and questions, you can see how easily it might be that a personal injury claim gets complicated. Any time you are injured and are dealing with an insurance company or another private party directly for your claim, you have the right to consult an attorney and have one represent you if you choose.
Mckay Law is eager to boldly fight and protect anyone who may be the victim of a Personal Injury
With so many moving parts, personal injury cases and other torts can become very complicated. It’s ultra-important to hire a knowledgeable and experienced personal injury firm to advocate for your rights. If you or a loved one has been injured in a personal injury accident, you may be entitled to compensation through a personal injury lawsuit.
Call us today or submit a free case review with McKay Law’s personal injury lawyer.