At Clark and Steinhorn, LLC, we have evaluated some thousands of car and truck crash cases, across our combined 67 years of law practice. Out of those evaluations, we have settled perhaps 95% or more of those cases and thankfully those that have gone to trial have yielded verdicts in excess of any pending offers.
So, what is the secret to determining when to settle and when to go to trial?
The simple answer is to ask an attorney who does this work day in and day out. They will inevitably look at a number of variables that serve to determine sucess or failure.
The first involves the issue of liability or legal responsibility. Laypeople have difficulty recognizing the difference between cases that are clear liability and cases that are defensible. In Maryland this analysis is even more complicated by virtue of the doctrine of contributory negligence. As discussed elsewhere on this website, this doctrine stands for the proposition that injured parties who wish to make claims must be free from negligence themselves.
This means that claims that would be successful in other jurisdictions ( 46 states have comparative negligence} may be fatally flawed by virtue of some trivial driving action by the injured party, despite overwhelming responsibility by the other driver. Thus a rear-end collsion might not be clear liability. Therefore, understanding that the defendant and his insurance company may be able to posit a defense is important when looking at a prospective offer.
If liability is without dispute the next refuge for the insurance carrier is contained in the extent of the damage to the victim's vehicle. While it may seem nonsensical, jurors often fall for the proposition that vehicle damage correlates with human damage. Sometimes this is true but the insurance industry has created a whole new category of claims which they label "minimal impact" that focuses solely on the car and trucks involved and not on the actual physical injuries! So bear in mind that pictures and estimates of vehicle damage are important.
The next avenue involves medical care timing. Many people who are involved in auto accidents refuse ambulance help at the scene, as they are running on post-crash adrenaline and/or are determined to get to work or pick up their kids from daycare and complete there activities. This will almost always redound to their detriment later, when the insurance defense lawyer will say "if you were so injured why did you refuse the ambulance?"
Some people can't afford to go to the hospital or see the doctor and hope to employ home remedies to get well. This usually spells disaster. The longer one goes from the date of the accident to first treatment, the more likely the insurance company will dispute the relationship between them. In a similar vein, long gaps in medical treatment can be a source of vast difficulties in bringing cases in for fair settlement.
So, if the liabilty if strong, the vehicle damage sufficient and the medical care timing reasonable, the next area that is attacked involves the nature of treatment. If early on in medical care, you describe your injuries as being to your neck, don't be surprised if medical problems that aren't mentioned become sources of subsequent battle.
I have had hundreds of clients who's initial focus has been on an especially acute source of pain and have been less vocal about lesser problems. The broken hand may be the primary short-term concern but the knee or back problem might be far more persistent down the road. It is vitally important that victims of crashes take a complete and regular inventory of their bodies when vistiting healthcare providers to ensure "everything" is covered.
The next problematic area involves lost income. Many people have jobs that are easily susceptible to documentation with appropriate notes from doctors supporting time off from work and letters from H.R. departments showing time and wages missed. Most people however have somewhat more complicated situations. New jobs, commission jobs, self-employment, you name it, there are complications that can prove difficult to sort out.
Many injured people don't anticipate that they will be out for so long and don't keep good track. Others, have haphazard income tax reporting and filing and if you don't report your tips as a server, you may not be able to make much of a crash-related lost wage claim. The earlier one devotes efforts to substantiating an income loss claim the better.
The final significant area involves the nature of the injuries sustained. Most victims of car and truck crashes sustain "soft-tissue" injuries. These injuries are generally not permanent in nature and are susceptible to repair with physical therapy or chiropractic treatment. These cases are of the more everyday variety in the minds of insurance adjusters. The more serious cases involve true structural injuries such as broken bones, torn ligaments and tendons and herniated discs in the back and neck.
True injuries to the structures of the body are far more likely to produce large verdicts and consequently are treated very differently by insurance carriers. Obviously death cases can be another level of seriousness altogether.
In the contemporary legal environment, soft tissue cases elicit modest offers. It used to be (30 or more years ago) that lawyers sought 3 times special damages (Medical bills plus lost income) and often received it. The insurance industry has systematically gone about undercutting such cases through a host of means. Doctors trained to testify in a manner helpful to the insurance interests along with aggressive media tactics, have served to eliminate 3 times specials and routinely offers in soft tissue cases do not total twice medicals plus wages.
Similarly, more serious cases have been undermined and produce lower offers than in former days. Such cases require strong representation in order to ensure fair compensation.
The bottom line of course is the net compensation to the injured party. A $100,000.00 offer isn't much if the client nets $20,000.00. A $30,000.00 offer may net an injured party $20,000.00 just as the $100,000.00 did. So shrewd negotiating and lawyering can increase the gross offer and the net. Lawyers who have extensive experience in this area know to seek compromises with health care providers and health care insurers.
Ultimately, the advice of a highly experienced personal injury trial lawyer is the best way to understand the relative fairness of your settlement offer and Clark and Steinhorn, LLC have provided this advice to thousands of happy clients in the past. Contact us at (#01) 317-1001.