A Guide to Personal Injury

When an accident occurs an insurance adjuster will usually contact the injured party. The insurance adjuster may give the impression that they have the injured parties best interest in mind. However, the insurance adjuster represents the insurance companies interests and not yours.

Insurance companies for the most part are publicly held corporations. The insurance company's primary goal is to make money for the stockholders. The less that an insurance company pays out in claims, the more money the insurance company makes.

What is a personal injury claim?

A person has a personal injury claim when the person (the Plaintiff) sustains injuries or damages as a result of someone else's conduct (the Defendant). A claim for damages can be made when a Defendant intentionally causes injuries, or if the Plaintiffs injuries were caused by the negligence of the Defendant.

The three requirements for a claim for personal injuries caused by negligence are:

that the Defendant was negligent;
that the Plaintiff has sustained injuries;
and that the injuries were caused by the negligence.

CHAPTER 2

Negligence

Negligence is defined under Wisconsin law as the failure to exercise ordinary care. Ordinary care is the degree of care which the great mass of mankind ordinarily exercises under the same or similar circumstances. A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances which a person ought reasonably to foresee that such act or omission would subject another to an unreasonable risk of injury or damage. Basically, negligence is what a reasonable person would do in similar circumstances.

In addition to the general definition of negligence, there are other safety statutes enacted by the legislature. If a Defendant violates one of these safety statutes, the Defendant is considered to be negligent.

Example

A Defendant fails to stop at a stop sign and strikes a vehicle driven by the Plaintiff.
The owner of a public building fails to have a handrail along the side of a stairway.

In the above examples, there are specific statutes in Wisconsin that require the operator of a vehicle to stop at stop signs and there is another statute that requires the owner of a public building to have a handrail along each stairway. If a Defendant violates any such safety statute, then the Defendant is negligent as a matter of law.

Injuries/causation

The second requirement for a Plaintiff to recover for a personal injury claim is that the Plaintiff sustains damages. A person is entitled to be compensated for pain and suffering, wage loss, medical expenses, property damage and any other damages that the Plaintiff can prove were caused by the accident.

Proving that a person sustained injuries as a result of an accident can often be more difficult than it would first appear. It is the Plaintiffs burden to prove to a reasonable degree of medical probability that the injuries that the Plaintiff is claiming were in fact caused by the accident.

Example: A Plaintiff who has a pre-existing back problem is involved in an accident. As a result of the accident the back condition is made worse.

Under the laws of Wisconsin the Plaintiff certainly has the right to recover the damages that were sustained in the accident. However, it becomes the Plaintiffs burden to prove to what extent his back condition has been aggravated as a result of the accident. The Plaintiff is only entitled to collect to the extent that the accident aggravated the pre-existing condition. The Plaintiff cannot collect from the Defendant for injuries that pre-existed the accident and were not caused by the Defendant.

Contributory negligence

As noted above, the Plaintiff has the right to recover if the Plaintiff can prove that the Defendant was negligent and that the Plaintiff sustained injuries as a result of the Defendants negligence. However, a Plaintiffs claim can be reduced or extinguished if the Plaintiff was also negligent. If the Plaintiffs negligence was a contributing factor to the injury, the amount of damages can be reduced.

If the Plaintiffs negligent conduct is a greater factor in causing his or her own injuries than the negligent conduct of the Defendant, then the Plaintiff will not be entitled to any recovery. If the Plaintiffs negligence is less than or equal to the negligence of any Defendant, then the Plaintiff is entitled to recover his or her damages minus the percent of negligence attributed to the Plaintiffs conduct.

Example 1: Plaintiff is involved in an automobile accident. The jury determines that the Plaintiffs damages total $10,000.00. A jury determines that Plaintiffs negligence was 20% and the Defendants negligence was 80%. The Plaintiff will recover $8,000.00.

Example 2: Plaintiff and Defendant are involved in an automobile accident. Plaintiffs damages are $10,000.00 and a jury determines that Plaintiff and Defendant are equally at fault (50% each). Plaintiff will recover $5,000.00.

Example 3: Plaintiff and Defendant are involved in an accident and a jury determines that Plaintiff is 51% at fault and Defendant is 49% at fault. Plaintiff will recover $0.

The Plaintiff has the same duty to exercise ordinary care as does the Defendant. There is a myth that a person is 10% at fault just for being involved in an accident. That is not true. A person can be involved in an accident even though he or she is not negligent.

Intentional torts

A Plaintiff can recover damages when they have been injured as the result of the intentional conduct of a Defendant. The most common claims for intentional torts are for fraud, battery and defamation. Claims such as breach of contract are not considered torts and will not be addressed in this booklet.

Fraud is when the Defendant makes a misrepresentation to the Plaintiff, the Plaintiff takes a course of action in reliance upon the misrepresentation of the Defendant and as a result the Plaintiff is damaged.

Defamation can be in the form of libel or slander. Libel is written defamation and slander is oral or verbal. A matter is defamatory if the statement is a statement of fact (not opinion), the statement would have the tendency to lower the Plaintiffs esteem in the community, and the statement is false. If the statement is true, the Plaintiff would have no claim no matter how defamatory the statement may be.

Battery is the intentional striking of another person without that persons consent.

Statute of Limitations

The time limit for most claims of negligence is 3 years. The Statute of Limitations for most intentional torts is 2 years. Any claim brought after the Statute of Limitations has expired will be dismissed. It is imperative that a Plaintiff be aware of the Statute of Limitations for his or her particular claim.

CHAPTER 3

Damages

A. Compensatory Damages

Compensatory damages are designed to compensate a Plaintiff for the damages that the Plaintiff sustained as a result of an accident. Compensatory damages are not designed as a way for the Plaintiff to make money, but are designed to compensate the Plaintiff for what the Plaintiff for what the Plaintiff has lost.

The main elements of damages are property damage, loss of wages, medical expenses and pain and suffering. Plaintiff is entitled to recover any wage loss, medical expense and pain and suffering that the Plaintiff can prove was caused by the accident. This includes not only past damages, but any medical expense, wage loss and pain and suffering the Plaintiff can prove that he or she will incur in the future.

Oftentimes it is necessary to obtain expert witnesses to establish some of these elements of damages. To recover for future pain, suffering and medical expenses, it is necessary to have a doctor testify that the Plaintiff will experience problems in the future and will need future medical treatment. Without the testimony of a physician, the Plaintiff is not entitled to present a claim for future damages. Likewise, if a Plaintiff claims future wage loss, a doctor will have to testify that the Plaintiff will be unable to work in the future due to injuries sustained in the accident. It may also be necessary to have a vocational expert or economist testify as to the amount of future wage loss that will occur.

B. Loss of Society & Companionship

If the Plaintiff is injured, certain relatives also have a claim for loss of society and companionship. A parent has a claim for loss of society and companionship of a minor child, a minor child has a claim for loss of society and companionship of a parent and a spouse has a claim for an injury to the other spouse.

The most common claim for loss of society and companionship involves a spouse. The claim for loss of society and companionship involves the love and affection that normally arises in a close and harmonious relationship. It includes the privilege of sexual relations, comfort, the rendering of material services and the right of support. An impairment of any of these rights gives rise to a legal claim of the other spouse.

C. Wrongful Death

When a person is killed as a result of the negligence of another person, it is called a wrongful death claim. The maximum damages (in 1992) for loss of society and companionship in a wrongful death action is $150,000.00. The right to bring a claim for the $150,000.00 loss of society and companionship belongs to the spouse. If there is no surviving spouse, the claim then passes to the children. If no children survive, the claim passes to the parents.

In addition to the claim for loss of society and companionship in a wrongful death action, the surviving heirs have a claim for any medical and funeral expenses that accompany the injury, along with any financial loss sustained as a result of the death.

Example: Husband, earning $30,000.00 per year, is killed as a result of an accident, and is survived by his wife and children. Husband is 50 years old at the time of his death.

In such a case, the wife has a claim for $150,000.00 for loss of society and companionship, and also has a claim for the financial loss she will sustain as a result of the death to her husband. The claim includes the amount of income that the husband would be expected to contribute to the family over the course of his lifetime, along with the monetary value of the services that he could be expected to render to the household over the course of his lifetime. (When minor children are involved the statutes require that a certain amount of the recovery be set aside for their benefit.)

D. Punitive Damages

Punitive damages are sometimes recoverable in an action for negligence. Punitive damages are not awarded to compensate the Plaintiff for any losses that the Plaintiff may have sustained, but are awarded for the purpose of punishing the Defendant foe engaging in reckless or outrageous conduct. This type of situation may apply when, for example, the Defendant causes an accident as a result of being intoxicated.

CHAPTER 4

Insurance

A. Auto Insurance

There are various types of insurance coverage and various sources of insurance to compensate an injured Plaintiff for his or her damages. The primary types of coverage for automobiles are collision, medical payments coverage, liability, uninsured motorist and underinsured motorist. For purposes of explaining these types of insurance, assume the following facts:

Example: Plaintiff is seriously injured in an automobile accident with the Defendant. As a result of the accident the cost of repairing the Plaintiffs vehicle is $8,000.00. The Plaintiff incurs medical expenses in the amount of $40,000.00 and reasonable compensation for the Plaintiffs pain and suffering is $200,000.00.

The Plaintiff has $100,000.00 of uninsured/underinsured motorist coverage along with collision coverage and medical payments coverage of $10,000.00.

Collision Collision coverage is coverage that the Plaintiff would have on his own vehicle and it would compensate him for the damage done to his vehicle. In this case, his collision coverage would pay for the $8,000.00 of repairs to his vehicle. In most cases there is a deductible on the collision coverage.

Medical Payments In the above example the Plaintiffs own insurance company would pay up to $10,000.00 in medical bills incurred as a result of this accident. The Plaintiffs insurance company would be responsible for these bills regardless of who was at fault in the accident. The medical payments coverage applies to whoever is occupying the vehicle.

Liability In this case Defendants liability insurer would be responsible for the damages sustained by the Plaintiff. When a Defendant obtains liability insurance, it is to protect the Defendant for damages that he may be responsible for paying as a result of his negligence. In this case, Defendants negligence was a contributing cause of the accident and therefore Defendant could be liable for up to $248,000.00 in damages. His insurance coverage will pay up to the policy limits.

If the Defendant did not have insurance, or if the Defendants policy limits were not high enough to cover the full amount of the Plaintiffs damages, the Plaintiff may be entitled to recover under his uninsured or underinsured motorist coverage.

Uninsured Motorist Coverage If the Defendant does not have any liability insurance coverage, the Plaintiff has the right to make a claim against his uninsured motorist coverage. If the Plaintiff owns two vehicles, his claim against his own uninsured motorist coverage is not limited to the $100,000.00 policy that was in effect on the vehicle that he was driving at the time of the accident. In such a situation the Plaintiff would be entitled to stack the policies and would be able to recover the policy limits under both policies.

Underinsured Motorist Coverage Underinsured motorist coverage (UIM) may apply when the Plaintiff is involved in an accident and the Defendant has insurance, but the liability coverage is less than the amount of damages sustained by the Plaintiff or is less than the amount of the Plaintiffs UIM coverage. If that is the case, the Plaintiff may be able to stack the UIM policies and obtain coverage under all of the policies.

A Plaintiff should also be aware that oftentimes several policies of liability insurance may apply.

Example: Bill is driving a car owned by Mary. Bill owns his own car and maintains insurance on his car, and Mary also maintains coverage on her car. If Bill is in an accident while driving Mary's car, both Bill and Mary's insurance would provide coverage.

Plaintiffs should be aware of the various sources of coverage that may be available if they are involved in an accident. At first it may appear that there is no insurance coverage available, but often upon further investigation a Plaintiff may discover that there is insurance coverage for one of the parties. If a Plaintiffs damages exceed the limits of one of the insurance policies, the Plaintiff should be aware that there may be other sources of recovery.

A Plaintiff should also be very careful when a claim exists against several insurance companies or several Defendants. Unless properly executed, a Release may result in releasing all of the Defendants, even though it is the Plaintiffs intention to only release one of the Defendants or one of the insurance companies.

B. Homeowners Insurance

Homeowners insurance is similar to liability insurance for an automobile. It provides liability insurance coverage to the homeowner for injuries that may have been caused by the negligence of the homeowner. This coverage generally protects the homeowner wherever the homeowner may be, and is not limited to injuries which occur on the homeowners premises.

On the other hand, homeowners liability does not guarantee coverage for a person who is injured on the homeowners premises. Some people believe that if they are injured on someones property, homeowners insurance automatically provides coverage. If a Plaintiff is injured on the premises of another, the Plaintiff is not entitled to recover unless the Plaintiff can prove that the land owner was negligent in some way.

Although liability coverage will not apply if the land owner is not negligent, most homeowners policies have medical payments coverage and often there will be some coverage for medical bills that are incurred. Thus, although sometimes a claim for pain and suffering will not exist, an injured party may have the right to have some or all of their medical bills paid by the insurance carrier.

As noted above, homeowners insurance coverage is not limited to injuries that occur on the property of the homeowner. Homeowners coverage will apply if the Defendant commits a negligent act while on the premises of another.

Example: Defendant is at a party at a friends house. The Defendant picks up a golf club and takes a swing without looking around to see who might be in the area. The Defendant accidentally strikes a 5 year old in the head with the golf club. The Defendants homeowners insurance would cover any damages that the Defendant negligently caused.

C. Health Insurance

It is not uncommon for a person to have health insurance coverage in addition to the rights to collect under any of the coverages explained above. If the bills are paid by a health insurance carrier or some other party, and recovery is subsequently made against a liability insurance carrier, the medical bills usually will have to be paid back to the health insurance carrier or to the party that paid the medical bills.

CHAPTER 5

Products Liability

A claim for products liability may exist when a product does not perform as intended, and a Plaintiff sustains injury as a result.

Products liability is a relatively recent development in the law and is somewhat of a hybrid of the law of negligence and breach of warranty. In the past, if a product malfunctioned a Plaintiff could sue the manufacturer for breach of warranty, but very often there were difficulties involved in such a claim, especially if the person injured was not the original purchaser of the product. The second alternative was to sue the manufacturer for negligence, but in many cases it was difficult to prove exactly how the Defendant was negligent.

Products liability law has developed a claim for what is known as strict liability in tort. Strict liability applies not only to the manufacturer, but also to the distributor, wholesaler and retailer. The doctrine of strict liability does not make the manufacturer an insurer for any injuries that the product may cause, and it does not automatically impose liability on a manufacturer for injuries caused by their product. The law of products liability relieves the injured party from proving specific elements of negligence or breach of contract.

To recover under the doctrine of strict liability it is necessary to prove the following:

That the product was in a defective condition;
That the defect caused the Plaintiffs injuries;
That the product was defective when it left the possession of the manufacturer and reached the consumer without substantial change;
That the manufacturer was engaged in the business of selling such products.

A product can be considered defective due to a manufacturing defect, design defect or the failure to properly warn.

A. Manufacturing Defect

A manufacturing defect is a defect which occurs as a result of something in the manufacturing process.

Example: The manufacturer of an aluminum ladder gets a batch of low quality aluminum. While the Plaintiff is walking up the ladder a rung on the ladder breaks.

In such a case the defect is a manufacturing defect and the Plaintiff would have a claim in strict products liability.

B. Design Defect

A design defect is when the product performs as it is expected, but the design renders the product unreasonably dangerous.

Example: The Ford Pinto automobiles were designed with the gas tank in the rear of the car. In rear end collisions, which are relatively common, serious injuries often resulted as a result of the gas tank exploding.

In such a situation, the car was performing as it was intended, and there was not a manufacturing defect, but the design rendered the car unreasonably dangerous when used for the purposes for which it was intended.

C. Failure to Warn

A third type of claim under strict liability is for failure to warn. A manufacturer must provide warnings concerning any dangerous condition of the product of which the manufacturer knows or should know. A manufacturer must warn of dangers which are reasonably foreseeable by the manufacturer, however, the manufacturer does not have to warn against obvious dangers.

Example: The Defendant manufacturers paint stripper. The manufacturer would have a duty to warn of the possible dangers associated with the fumes.

In the example above, most people know that paint stripper gives off strong fumes and that it gives off an unpleasant odor, but most people do not know the extent of the dangers involved with the fumes. An ordinary person may not know that if such product is used in a closed room with an open flame (pilot light on stove, pilot light on water heater, cigarette) that an explosion could result solely from the fumes, even though no paint stripper came in direct contact with the flame. If Defendant fails to warn of such dangers and Plaintiff is injured, the Defendant can be liable in strict liability.

CHAPTER 6

Malpractice

A claim for malpractice is nothing more than a claim for negligence. Malpractice is the term that is used when a professional fails to meet a certain standard in his or her profession.

The most common area of malpractice is medical malpractice.

It should be pointed out that medical malpractice is the most common area of malpractice, not because doctors are more negligent than any other profession, but because the risk for injury to a Plaintiff is much greater in the medical field than in other fields.

In most cases when a person contacts a physician, it is because the person already has a health problem. When the desired result is not obtained, it is not uncommon for the patient to want to blame someone for the bad result, and the most obvious person is the physician.

However, a bad result does not necessarily mean that malpractice (negligence) has occurred. A physician does not guarantee the results of his or her care and treatment. Medicine is not an exact science and a doctor cannot be found negligent simply because a bad result may have resulted.

A physician is liable for malpractice if he fails to exercise the same degree of care, skill and judgment which is usually exercised by a practitioner in his field or specialty. If there is more than one recognized method of treatment for the Plaintiffs injuries, then the doctor is free to select any of the recognized methods.

To recover in a claim for malpractice the Plaintiff must prove that the doctor was negligent in the care that he rendered, and that the doctors negligence was a substantial factor in producing the Plaintiffs condition.

Example: Plaintiff consults with her physician with regard to a lump on her breast. At that point in time the Plaintiff has breast cancer and it is in stage one. The doctor fails to diagnose the cancer until months later. At that time the cancer has progressed to a stage three.

When breast cancer is in stage one, it is treatable and very often the cancer can be removed without significant health problems to the Plaintiff. If the cancer is not caught early enough, and progresses to stage three, it is often too late to stop the spread of cancer to other areas of the bodies, and the Plaintiffs life expectancy at that point is very short.

In such a case, assume that the doctor was negligent in failing to diagnose the cancer at stage one. There is no question that the doctors negligence did not cause the Plaintiffs cancer, however, the negligence of the doctor was a substantial factor in producing the present condition of the Plaintiffs health, and therefore the doctor could be liable in a claim for malpractice.

When a claim for malpractice is presented, an expert must testify on behalf of the Plaintiff. That is because the degree of skill and judgment which is usually exercised by a doctor is not a matter within the common knowledge of lay persons. The standards are within the special knowledge of experts in the field of medicine, and can only be established by their testimony.

The experts that are retained to testify on behalf of the Plaintiff must be compensated for their time. Therefore, malpractice cases are often very complicated and expensive to pursue.

CHAPTER 7

Anatomy of a Personal Injury Claim

A. Initial contact by insurance company.

If a person sustains a personal injury from an automobile accident, usually an insurance adjuster will contact the Plaintiff directly. Most insurance adjusters are friendly and will lead a Plaintiff to believe that the adjuster will take care of the Plaintiff's problems, and the adjuster is actually watching out for the best interests of the Plaintiff.

The adjuster will usually want to take a written or recorded statement as soon as possible following the accident. The adjuster will also obtain medical authorizations from the Plaintiff so that the adjuster can obtain the Plaintiffs medical records.

After the initial contact, some adjusters will contact the Plaintiff regularly with words of encouragement. They will let the Plaintiff know that when the Plaintiff is done being treated, the insurance company will be ready to pay the Plaintiff some money. Most adjusters will try to settle a claim as soon as possible after the accident. The general rule for the insurance company is that the sooner the case is settled, the less it costs the insurance company.

In cases such as products liability and medical malpractice, it is very unlikely that a Plaintiff will ever be contacted directly by an insurance carrier. The main reason is that the insurance companies generally do not know that an injury exists unless the Plaintiff first contacts the insurance company. In these cases the Plaintiff will probably have already contacted an attorney due to the complex nature of products liability and malpractice cases and due to the expense involved in pursuing these types of claims.

B. Settlement

In cases where an insurance company is willing to negotiate a possible settlement prior to a lawsuit being commenced, it is imperative that the Plaintiff be aware of the full effects of his injuries prior to settling the claim. In most cases the Plaintiff should not settle prior to the time he has completed treatment with his physician and prior to the time that he knows the full effects of his injury.

Example: Plaintiff sustains a low back injury in a car accident. The Plaintiff sees his physician and receives physical therapy for three months. At that point the doctor releases the Plaintiff and indicates that nothing further can be done.

In the above example the Plaintiff may believe that he has completed treatment and that he is entitled to three months of pain and suffering. However, the effects of an injury often linger long after treatment has been completed.

It is not uncommon for a low back injury to improve following an accident, but as time goes by there is less and less improvement. After several months a Plaintiff may feel much better than shortly after the accident, but the Plaintiff may experience lingering problems with his low back. Plaintiff may have problems when the weather is cold and damp, or when he does a lot of bending and lifting, etc.

A person is entitled to collect for the types of problems that he or she may have in the future. However, before a person can collect for these types of problems, a physician must be willing to state that it is probable that these types of problems will occur in the future. It is not enough that the doctor states that the problems might possibly continue in the future.

Going back to the above example, although treatment may be concluded after three or four months, a Plaintiff should not settle his or her case until he or she has had a full opportunity to know whether or not the problems will in fact continue in the future.

At some point in time the doctor will indicate that the Plaintiff has either recovered fully, or there is nothing further that the physician can do. At this point in time the case can be prepared for possible settlement. The proper documentation is obtained and then provided to the insurance carrier along with a demand letter indicating a Plaintiffs settlement demand.

C. Lawsuit

If a matter cannot be resolved with the insurance company, a lawsuit is commenced. A lawsuit can be a lengthy, time consuming and expensive procedure.

Shortly after the lawsuit is filed, the court will hold a scheduling conference. At this conference the court will give the parties a trial date and various other deadlines. In most cases the parties will have a certain deadline for which they must name expert witnesses and comply with other orders of the court. Most trials are scheduled anywhere from six months to two years after the lawsuit is filed. (How soon a case gets to trial after the lawsuit is filed will depend on the county in which the case is brought).

A case can be settled at any point during the legal proceedings. If the case cannot be settled, the parties will have a trial in front of either a judge or a jury, a jury trial being the most common in personal injury cases.

In most cases the verdict of the jury is final. Although there are ways to appeal the outcome in the trial court, it is very difficult to win a case on appeal and generally the matter is won or lost at the trial level.

CHAPTER 8

Do I need a lawyer?

In most cases a Plaintiff is better off being represented by an attorney. Generally, the larger the claim the more likely it is that a Plaintiff needs an attorney.

In products liability and medical malpractice cases, it is almost impossible for a Plaintiff to get a fair result without the assistance of an attorney. The larger the claim, the more likely it is that the Plaintiff will need experts. Most experienced personal injury attorneys know different experts in different fields that can be retained for a particular type of case.

Also, the larger the claim the more expensive it is to pursue. Most personal injury attorneys will begin preparing a case for trial even prior to making a settlement demand or starting suit. Therefore, any experts that need to be retained have often been hired prior to a settlement demand being made.

Should I consult an attorney?

It is advisable to contact an attorney as soon a possible after you have an accident. If a Plaintiff feels comfortable with the first attorney he contacts, there is nothing wrong with retaining that attorney at that time. However, a Plaintiff should feel free to consult with more than one attorney and should not feel pressured into retaining the first attorney that he or she consults with. This is especially true of Plaintiffs who are contacted directly by an attorney following the accident such as through the mail.

A common question for a Plaintiff is, "Do I need an attorney now?" If a Plaintiff has made a decision to hire an attorney, and has made a decision as to which attorney he or she wants to hire, the sooner that attorney is retained the better it is for the Plaintiff. The reason is that the insurance company begins gathering information immediately after the accident. Such information gathering will include direct contact with the Plaintiff, taking photographs, interviewing witnesses, etc.

What will an attorney do for me?

A very important function that an attorney can perform for a client is that an attorney can often locate insurance coverage of which a Plaintiff may not be aware. There may be various insurance policies available or various different coverages such as uninsured and underinsured.

The attorney will investigate the claim, including obtaining and preserving evidence, and will negotiate the claim with the insurance company. When negotiating these matters the attorney will use his or her knowledge of the law, along with his or her experience in evaluating claims and dealing with insurance companies. Insurance companies also know that an attorney can, and will, start a lawsuit if the company does not make a fair settlement offer.

The way a case is prepared prior to suit will often be a significant factor in determining whether or not a case is settled prior to trial and whether the insurance company makes a fair settlement offer. The Plaintiffs attorney would have obtained the necessary medical reports and documentation as the case is proceeding. If experts are required, the proper experts would be consulted and retained as necessary.

That does not mean that if an attorney is not consulted immediately after an accident, that it is too late to consult an attorney. Prior to accepting any settlement offer from an insurance company, it is advisable to have the matter reviewed by an attorney experienced in handling personal injury claims. Most personal injury attorneys will give you an opinion as to whether the offer is fair or whether the attorney believes that additional money should be recovered.

If a claim cannot be resolved, a lawsuit will be commenced. The attorney would obviously conduct whatever legal proceedings are necessary. If the case cannot be settled prior to trial, the attorney would be responsible for trying the case to a jury. Just like a doctor, an attorney cannot guarantee a result.

Attorneys Fees

Most personal injury attorneys charge on a contingent fee basis (a percentage of what is recovered). Most attorneys charge one-third of the recovery plus expenses, but some attorneys use a sliding scale going up to 40% or more if the matter is appealed.

CHAPTER 9

Conclusion

Most people are aware of when they sustain an injury. If there is ever a question of whether such an injury gives rise to a claim for damages, it is advisable to contact an attorney. The more serious the injury, the more important it is to at least consult with an attorney.

Everyone should be aware of what rights they have when they have sustained an injury. Everyone should also be aware that a person is not doing anything wrong by making a claim for an injury. Insurance is available for the purpose of compensating a party that has been injured.

Some people are reluctant to bring a claim because they feel they are doing something wrong if they sue an insurance company. A personal injury claim is not a form of the lottery and is not a way to get rich quick. It is the only way the law compensates a person who has been injured as a result of someone else's negligence. There is no reason for an injured person to give up his rights to be compensated, no matter how slight that injury may be. When the Plaintiff is injured due to the fault of someone else, the Plaintiff has the right to be compensated for those damages.

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