Almost all personal injury cases — upwards of 90 percent, in most jurisdictions — settle before trial, and many of these cases settle before a lawsuit is even filed. In most cases, the insurance company must present a reasonable settlement offer within thirty days, if liability is relatively clear. However, there are many loopholes in this standard, and the settlement process can sometimes last for months or even longer.
As a rule of thumb, a personal injury case is ripe for settlement once medical treatment is either entirely or substantially complete. How can an attorney maximize compensation in these situations?
Step One: Gather Evidence
The plaintiff has the burden of proof in personal injury matters, so plaintiff must present evidence to support his or her claims. Some of this evidence comes from eyewitnesses. They can be people that an attorney interviews later or that first responders contacted at the scene. It is important to talk to as many potential witnesses as possible, because typically, only a handful agree to give testimony at trial.
Eyewitnesses are often biased, at least to a certain extent; moreover, many eyewitnesses only saw part of the personal injury incident. To bolster eyewitnesses, attorneys turn to physical evidence, including:
- Skidmarks: These marks on the road give clues about velocity, braking, steering angle, and other vital information.
- Photographs: Pictures of both property damage and personal injury wounds give the attorney a better idea of how the crash occurred and are also very helpful to the jury.
- EDR: The Event Data Recorder automatically captures operational data, much like the “black box” flight recorders on airplanes.
Since memories fade, vehicle traffic rubs skidmarks away, pictures get misplaced, and the vehicle is usually destroyed a few days after the incident, a personal injury attorney must get to work quickly to preserve this evidence.
Step Two: Legal Theories
To establish first party liability, the tortfeasor (negligent driver) must either violate a safety statute, like DUI, or otherwise violate the duty of reasonable care. Such breach (violation) must cause physical damages, like lost wages or medical bills. Victims are also entitled to compensation for their noneconomic damages, like pain and suffering and loss of enjoyment in life. A third party liability theory, like negligent entrustment, may be available as well, and these third party theories are particularly important if the tortfeasor was uninsured or under-insured.
It is also important to anticipate what legal theories the insurance company might use to reduce or deny compensation to the personal injury victim.
Step Three: Negotiation
Before settlement negotiations begin, an attorney must calculate the personal injury case’s settlement value. This calculation is partially based on the objective numbers in the case, such as the amount of medical bills, and partly based on a subjective analysis, e.g. the amount of damages that a jury in that parish would likely award in such cases. As in all other situations, personal injury negotiations nearly always require some give and take, if a resolution is to be achieved.
T-Claude Devall and the other experienced Lake Charles personal injury attorneys at Hoffoss Devall are committed to maximum compensation for victims. Contact us today for a free consultation.
