How you evaluate a personal injury claim depends in part upon the seat at the table you occupy. Personal injury attorneys evaluate claims based upon their experience and perceptions, insurance companies evaluate claims from somewhat different perspective and some insurers rely upon computer models.
Deciding whether to accept a personal injury case there are some components of that are important for lawyers to determine whether the case is one that fits their practice model and can accept. Because personal injury law firms usually take personal injury cases on a contingent fee basis, they must carefully pick cases.
The first step in the evaluation process is for the attorney to speak with the personal injury victim or their family and get a detailed description of what happened. Plaintiff’s attorneys must evaluate the potential clients to see if they are compatible and a good fit for the law firm. An injury claim can be a lengthy process, particularly in the when litigation is necessary and its best that everyone bonds.
An initial meeting can serve as a screening process for both prospective client and attorney. Attorneys look at the candor of the prospective client, their expectations, legal history, and many other factors in deciding if they want to bet their time and money on the case. Also, in the initial meeting the attorney will look at the following issues:
1. Who is at Fault?
The first major hurdle in evaluation of any personal injury claim is legal responsibility.
Someone must have done something or failed to do something they were legally required to do that caused the accident or the plaintiff’s injuries to meet the legal responsibility hurdle. In a big rig crash fault can partly be determined by violations of the Federal Motor Carrier Safety Regulations. For a dram shop or case against a bar or club, fault may be determined by how may drinks the intoxicated driver was served. In a car crash it could be the other driver failing to yield the right of way.
A good question to ask: What have they done wrong to cause the accident or injure me?
2. What are my Damages?
Assuming the matter gets by the legal responsibility analysis, the next step is legal damages. This requires an assessment of what legal damages are available to the victim. You can have an auto accident caused by someone blind drunk, but you walk away from the crash unharmed and other than the property damage claim there would be no other legal damages. You cannot collect damages on what might have occurred.
Alternatively, you can have very severe damages and have no defendant with legal responsibility. The personal injury attorney must carefully evaluate the damages of the claimant in deciding whether to accept the case or not. Some law firms like Baumgartner Law Firm in Texas are committed to handling only very serious injury claims and others are more of a volume practice. Also, severe damages alone do not usually convince an attorney to take the case. Without fault, or insurance coverage, justice will be very hard to achieve.
3. What is the Insurance Coverage?
Finally, the lawyer must also consider the insurance coverage available to pay legal damages as part of the analysis on whether to take a case.
There’s an old saying “you can’t get blood from a turnip” and that applies to lawsuits and particularly those in Texas.
Many law firms do not handle cases where insurance coverage is not available to cover the claim. It is one thing for attorneys to bet their time and their money on winning a case and another to bet on if they can collect after they win. In Texas, it is particularly difficult to collect money from that outside of an insurance policy.
There are some torts that are excluded from most insurance policies and a good example would be an intentional tort such as an assault. Other times, there are situations where liability is clear, damages are great but there is no way for the victim to get paid for the damages (i.e., no insurance).
Not all cases require an attorney. Generally, the more serious the injury the more likely you will need an experienced personal injury attorney to handle the case. Frequently, victims call an injury lawyer after attempting to handle a case on their own only to find out that they are over their heads.
Unfortunately, in many cases they have done something that hurt the value of the case or failed to do something they needed to do to early on to help prove the case.
When the victim hears from the insurance company that they are “accepting liability”, that does not mean the insurer is planning to be reasonable in paying damages.
4. Talk to an Experienced Lawyer
Personal injury victims considering handling the case on their own would be well advised to take advantage of a free consultation from a reputable local personal injury attorney and do online research to learn about the process.