Frequently Asked Questions After A Personal Injury
The following information includes frequently asked personal injury questions. The answers stated are general in nature and are not intended to apply to every situation. Each case is different and carries its own set of circumstances that must be taken into consideration by competent legal counsel. If you or someone you know in Washington State needs the trusted legal advice of an experienced personal injury lawyer, please call Marc L. Silverman, Attorney at Law, today at 425-374-4089 or complete the contact form provided on this site to schedule your free consultation.
What Are The Qualities Of A Trial Lawyer Which Will Ensure The Best Representation For Me?
To be effectively represented, you need a lawyer with experience in the field of personal injury law and the trial of cases. It is important that the lawyer’s staff be knowledgeable and that you should be treated with consideration, courtesy and respect. A personal injury claim results from trauma caused by the negligence of another party. The last thing the injured person or their family needs is a lawyer who is arrogant, inaccessible and nonresponsive.
I’ve practiced in the field of personal injury law nearly four decades. My staff and I pride ourselves on the skill and professionalism with which we represent our clients. We believe that educating our clients to become sophisticated consumers of legal services is an important goal. However, all the education of the client in the world means nothing if isn’t coupled with success. My staff and I have a proven track record for obtaining outstanding results for clients in a wide variety of negligence cases over many years. We’ve had many excellent recoveries and we’ve handled cases in most state and federal appellate courts. We are a knowledgeable, skilled, caring, compassionate law firm, whose top priority is obtaining justice for our clients in a professional, courteous, responsive and totally committed way. We look forward to speaking with you, your friend or a loved one, and to assisting you in obtaining justice.
If I Or Someone I Know Has Been Injured In A Situation Involving The Negligence Of A Third Party, What Are The First Things That I Should Do Or Be Thinking About?
If you or someone you know has been injured in a situation potentially involving the negligence of another individual, regardless of the type of situation, in general, the first things you need to do and think about are preserving what evidence you can, as quickly as you can. Often, for example, this involves, going to the scene of a dangerous condition on-premises or perhaps to an automobile collision scene. Documenting the event or situation by photograph or video and note-taking is extremely helpful. As time passes from a particular event, memories fade, and details are often lost. A dangerous condition on-premises might be changed. Automobiles may be repaired or disposed of at a wrecking yard. A dangerous product can be lost or destroyed.
It is also very important to obtain the names and phone numbers of all available witnesses. Individuals who can testify later to the victim’s injuries and damages and the effect of these on the injured person are certainly important but are less vital in the initial stages. The same is true of health care professionals, employers, and the like.
The most important type of witnesses to identify as soon as possible are those who were witnesses to the injury-causing event so that the circumstances involving fault and responsibility can be determined as soon as possible.
Even if the witness was not an “eyewitness” to the event, that person may still have very important information. For example, if the injured person gave a statement to the police in connection with an automobile collision or perhaps to a store manager in connection with an injury occurring on a store’s premises, those witnesses and reports are very important to identify.
In sum, it is important to document as much about the injury-causing event as possible, as soon as possible following the event.
Naturally, it also makes sense to contact a lawyer who understands how these many pieces fit into the puzzle and who can follow up with each piece of evidence and bit of information, as effectively and efficiently as possible. This often involves getting an expert investigator out to the scene to professionally document the situation. The sooner you retain skillful counsel, the more likely you’ll be to have a successful outcome.
What Role Does Insurance Play In The Event I Or Someone I Care About Is Injured Through Another’s Negligence?
In general, there are two kinds of insurance that apply in a personal injury negligence situation. The first is called “first-party” coverage and typically includes such insurance as property damage coverage, personal injury protection (PIP) coverage, med-pay coverage and traditional health insurance. The second type of insurance is called “third-party” coverage and includes basic liability and casualty coverage.
First-party insurance is typically your own insurance, but it doesn’t have to be. It includes any health insurance you may have, automobile collision property insurance, automobile personal injury protection coverage, underinsured or uninsured motorist coverage, and others. For example, if you’re injured in your car by another driver, your PIP coverage will pay for your medical bills. If you’re a passenger in another’s car which is hit, your driver’s PIP will cover you as a passenger in most situations.
First-party coverage is no-fault coverage. This means that regardless of who is at fault for injury to another, first-party coverage covers the loss, paying for medical expenses the injured person incurs. In the case of health care insurance, these benefits may be subject to a deductible, the injured person himself or herself must pay, depending upon the terms of the insurance policy. With other types of coverage, automobile personal injury protection coverage or premises liability medical payment coverage, and property damage coverage such as automobile collision insurance, the insurance company pays the loss regardless of who is at fault. In other words, if someone is injured in a department store or even someone’s residence where there is homeowner’s coverage, the premises owner frequently has a medical payment policy that will pay for medical expenses incurred by the injured person.
In the event of an automobile collision, personal injury protection (PIP) coverage pays not only for medical expenses incurred by the injured person, but often provides for limited income loss coverage in the event the injured person is unable to work for some time following the collision. In such cases, there is usually a fourteen (14) day “elimination” period during which such benefits are not paid.
First-party health care insurance may also be found under state or federal statutes. For example, if an individual was injured on-the-job, then their medical expenses and income loss would be paid by the state Department of Labor and Industries, through the Worker’s Compensation program. If the injured person is unemployed and their income falls below a certain level, he or she may also qualify to receive federal Medicaid benefits which are typically administered through the state Department of Social and Health Services. Finally, there is any number of other programs that may provide first-party coverage for an individual. If a person is employed by the Federal government, for example, the military, certain federal programs may provide health care benefits. Unionized labor organizations including fire and police departments often have extensive program benefits.
Liability Insurance or Third-Party Coverage
The other type of coverage which generally applies in a personal injury setting is liability insurance. This is insurance carried by almost adults, governments and businesses. It is probably the most common insurance. Liability insurance is coverage that protects the insured (the negligent party) from financial ruin in the event they cause damage or injury to someone else. Most everyone has heard of automobile liability insurance and homeowner’s insurance. Individuals who rent apartments often have renter’s insurance; boat owners have marine insurance. Most businesses are insured against loss occasioned by their activities, products or employees. Professionals such as doctors, lawyers, accountants, architects, etc. carry “E & O” (errors and omissions) coverage.
It is important to understand that the liability insurer and its insured (the negligent party) are the adversaries of the injured person. Hence, it is necessary for the injured person and their family to be vigilant against all things said and done by an insurance company. Representatives of such insurance companies (adjusters) may be friendly and attempt to be “helpful”, but the injured person should never forget that these persons, both the negligent party and its insurer’s representatives, are adversaries and their intent is invariably to avoid paying damages to the injured person to the greatest extent possible and/or to delay payment to the injured person as long as possible.
Increasingly we find that, although it should not exist, an adversarial relationship frequently develops between the injured person and his/her own first-party insurer.
Frequently the lawyer representing the injured person must intervene to prevent efforts by first-party insurers to terminate the injured person’s (their own insured’s) benefits.
If I Retain An Attorney To Represent Me, What Are The Sorts Of Things That I Need To Understand?
You should retain an attorney in whom you have confidence. The lawyer should have significant experience in handling the kind of case you are faced with. Like doctors, lawyers frequently emphasize specific areas of practice, especially in larger communities. There are lawyers that handle commercial and business matters, real estate, tax matters, criminal defense, marital dissolution, custody, bankruptcy, probate, etc.
While some cases, of necessity, go to trial, the vast majority settle. Logically, the more serious the injury, the greater typically is the value of the case in terms of damages. And if the victim has been very seriously injured or killed, his or her very future and that of his/her family may be at stake.
The kind of lawyer necessary to handle a serious personal injury case is a civil trial lawyer. A trial lawyer is a lawyer whose special focus is on representing injured people in negligence and damages claims. The lawyer should have mastery in areas of law which include insurance, evidence, civil procedure, negligence and trial practice. The lawyer should also be familiar with medicine and related areas. In my twenty-three years (23) of practice, I’ve handled very many personal injury claims both in and out of court and have in-depth knowledge in all these subjects.
The trial lawyer’s fee is typically based upon a percentage of the gross amount recovered. This is called a “contingent fee” because the lawyer’s fee is contingent upon the outcome of the case. The gross amount is defined as all monies paid in settlement from, or a judgment against, a negligent party and/or their insurer. The percentage of the fee may vary based upon the type of case. For example, a fee of 33.3% (1/3) is common in cases involving automobile collisions, premises liability cases, and other sorts of cases. A fee of 40% is common in cases involving professional liability (such as medical or legal malpractice), major product liability claims, and other types of complex matters.
The advantage to the injured person and their family who are in need of a personal injury trial lawyer is, of course, that the victim does not have to pay an attorney by the hour as the insurance industry pays its lawyers.
There are two types of costs involved in most cases. “Costs” are expenses related directly to your case. They include such things as the filing fees for your lawsuit, the expense of obtaining medical records, income loss information, police reports, fees of expert witnesses, deposition expenses, the cost of creating exhibits, fees for consultations with doctors and the like. “Expenses” (as opposed to “costs”) typically include photocopy, faxes, long-distance charges, travel expenses, etc.
Under the ethical rules governing the practice of law in Washington, a client is at all times directly responsible for the payment of costs and expenses of the case although a lawyer’s fee in personal injury or other negligence cases can be contingent. The client may be asked to pay a “cost retainer” to be held in the lawyer’s trust account and used for the purposes described above. From time to time, the trial lawyer may advance out of his or her pocket these costs and expenses, which the client will reimburse to the lawyer at the conclusion of the case from any settlement or judgment.
Does Health Insurance Or Other First-Party Coverage Ever Have To Be Repaid Out Of The Settlement Or Judgment?
First-party insurers such as medical insurers typically have provisions in their insurance contract entitling the insurer to a reimbursement for the medical expenses it pays on behalf of the injured person. This “right to reimbursement” is known as the insurance company’s right of “subrogation”. Generally, every first-party insurer has the right to receive such reimbursement. This applies to automobile PIP coverage, health insurers, and even governmental medical-expense payers like the Department of Labor and Industries (DL & I), Department of Social and Health Services (DSHS), as well as federal agencies. All of these agencies have statutory provisions that entitle them to and regulate their reimbursement.
What Happens If Some Medical Bills Remain Owing After The Case Is Over?
If there are medical expenses remaining upon the conclusion of the case, these may be paid out of any settlement or judgment. This will usually depend upon whether
- the client asks that they be paid;
- the client and the doctor agree this should be done; or
- the doctor has filed a lien for medical services.
What Is The Meaning Of Negotiation Versus Litigation?
The vast majority of all personal injury damage claims result in a negotiated settlement. However, prior to negotiation being productive or even possible, it is necessary that the injured person’s claim is fully developed. This means that all medical records and medical bills need to be obtained. Usually, it is necessary for the lawyer to have at least one and perhaps several consultations with the injured person’s doctor and other health care providers so as to obtain a full appreciation and understanding of the medical aspect of the injured person’s claim.
Once medical records and bills have been obtained and doctors have been consulted (the doctors conclusions often getting reduced to a written report), all of this documentation along with witness statements, police reports, reports of experts, etc. are submitted to the insurance claim adjuster for the liability insurer along with a comprehensive letter which presents the injured person’s claim and theories and sets forth his/her “demand for settlement”. The liability insurance adjuster will then review the plaintiff’s “settlement demand package” and perhaps engage in negotiations with a view toward attempting to settle the case.
Sometimes cases require other types of documentation, which is not medical. For example, legal malpractice cases may require very different area of inquiry. But just as with personal injury cases, the first order of business is the fullest possible development of the case and the evidence before any attempt to settle or resolve the case can be realistically considered.
In recent years, mediation has become a very popular and frequently used method of negotiation. Mediation is a process in which both sides agree to meet in a common location (usually the mediator’s office) and submit their claims and defenses to the mediator in writing. Mediation is a completely voluntary process. It is not a decisional process, but a negotiation process. Mediators frequently use “shuttle diplomacy”, literally moving back and forth between conference rooms talking first to one side and then to the other, and through the course of this, the mediator communicates the changing positions of the parties back and forth toward settlement. If the mediator is successful, he or she will enable both sides to reach common ground which will result in settlement of the case.
In the event negotiations are unsuccessful, in a circumstance where the statute of limitations is imminently to expire, or for a variety of other reasons, a lawsuit may need to be commenced. A lawsuit is begun with the plaintiff filing a complaint and summons and serving these upon the defendant. Typically, this is accomplished by personal service upon the defendant but alternative methods of service are sometimes necessary and employed such as where the defendant is an insurance company, where the defendant is a corporation or business which has an appointed “registered agent”, or when the defendant has moved from the state or cannot be found in the state for purposes of receiving service.
Once the lawsuit is properly commenced (filed and served) a defense attorney is assigned by the insurance company defending the case and that lawyer puts in an answer to the complaint. After this, the process of discovery begins where both sides have an opportunity to learn all the facts that the other side may know about the case. This is accomplished through written discovery e.g. interrogatories, request for production of documents, request for admissions and oral discovery in the form of depositions.
Upon the completion of discovery, the case is set for trial. If a case has a value of $100,000 or less (the amount the plaintiff is seeking in damages) then, in Washington, the case goes through mandatory arbitration. This is a less formal litigation process whereby both sides agree upon a disinterested lawyer with experience in the field to act as the arbitrator to decide the case. Both sides present their documentary evidence to the arbitrator in the form of medical records, bills, police reports, etc. and the parties then meet to have an arbitration. An arbitration can last perhaps only a few hours or maybe a day. In cases of clear liability (for example a rear-end collision) a great deal of time need not be spent on developing the “facts” of the incident and the main part of the arbitration is usually spent on developing the damages and medical evidence of the case. In cases where liability is disputed, that too will need to be determined by the arbitrator.
Once both parties have put on their case, the arbitrator takes the matter under advisement and ultimately makes a decision, determining whether the plaintiff has proven his or her case on liability and if so, whether the plaintiff was injured and damaged. The arbitrator decides what medical treatment and bills are related to the incident and perhaps those which were not. Ultimately the arbitrator makes a formal award in the case.
Because the right to a jury trial is constitutional, if either side doesn’t like the result they obtained in arbitration, they can appeal for what is called trial de novo (“a new trial”) and this time the trial is to a jury with a judge, a formal courtroom, etc. The party who appealed (typically the defense/insurance company for the negligent party; in my experience plaintiffs rarely appeal for a new trial) must improve his/her position in the subsequent new trial. If the party who appealed for a new trial does not improve his/her position in the new trial, then that party must pay the other party’s attorney fees and costs incurred in the trial.
In cases where the damages exceed $100,000, the case will go straight to a jury trial. Again, both sides will call witnesses and will present exhibits and evidence before the court and the jury. The jury will ultimately decide the case during deliberations and determine how much, if any, the plaintiff is entitled to receive as compensation. Unlike many states, Washington does not permit punitive damages which are damages intended to punish the defendant for conduct that is not only negligent but shows a callous indifference to human safety, life, a person’s rights, etc.
Of course, in rare cases, new questions of law are presented, and the jury’s decision may ultimately become the subject of an appeal through the appellate and even Supreme Court of the state. Of course, these cases are infrequent, but they do happen and that is how the law is made.