DO I NEED TO HIRE A LAWYER AFTER AN AUTO ACCIDENT?

INTRODUCTION

If the investigating officer found you at fault for the accident, your auto insurance company will handle your defense and hire an attorney to represent you at their expense. If you were at fault and had no liability insurance, you will either have to defend yourself or hire an attorney at your own expense.

If the officer found the other driver at fault, then the information below will help guide you on your decision about hiring an attorney.

PROPERTY DAMAGE ONLY

If the accident resulted in property damage only, there is no need to hire an attorney. It has been my experience that most insurance companies, even the worse ones, will deal fairly and professionally with you on property damage issues. Of course, they are not going to volunteer any extras, such as paying for the loss of use of your auto while it is being repaired or the diminution of the value of your vehicle.

Usually, the insurance company for the at-fault driver will pay for a rental vehicle for you while your car is in the shop for repairs. However, if you have a second vehicle or otherwise can get by without a rental vehicle, you are entitled to a cash payment (usually $25 per day) for every day you were unable to use your car. A case styled Lone Star Dodge vs. Luna, gives you this right. You should also ask the adjuster to compensate you for the loss of value to your vehicle as a result of being damaged in the accident. This is called diminution of value and usually is available to you, especially if your vehicle was less than 2-3 years old.

Even if your vehicle is declared a total loss, you should not need to hire an attorney. The adjuster will usually make you a fair offer to buy your car or let you retain it minus its salvage value.

BODILY INJURY AND SUBSTANTIAL DAMAGE TO YOUR VEHICLE

If you were involved in an auto accident which caused substantial damage to your vehicle and you went to the ER or your own doctor either from the scene of the accident, or within a few days of the accident, you probably need to hire an attorney. Also, be sure to hire one as soon as possible. Why as soon as possible? Because there are many issues, most of them having to do with medical care and medical bills that need to be handled quickly in order to preserve the value of your claim. The longer you try to handle your own claim, the more damage you will probably cause to your case. I turn down many cases simply because the client waited too long and hiring me at that point would not add value to their claim. In other words, beyond a certain point, even a good attorney can't undo the damage you have done to your own case. Some people wait until the adjuster makes the first offer of settlement before hiring an attorney. This is a big mistake, as once a claim has gone that far, it is much too late for an attorney to be of help. I almost always turn down these cases. There are some exceptions to this, however, so if you get caught in this situation, you should consult with an attorney.

Also, don't forget, the adjuster is trained to minimize the insurance company's exposure by going on the attack early, before you know what hit you. The adjuster will probably take a tape-recorded statement from you in which you will damage the value of your claim because you don't know what helps you and what hurts you. The short answer is: tape-recorded statements never help you, usually hurt you, and are almost always unnecessary and therefore a complete waste of your time.

Many people attempt to handle their own case because they think they can make more money if they don't have to pay attorney fees out of a settlement. In reality, the reverse is true. An attorney cannot only guide you through the process so you don't have to worry about your case, but can also enhance the value of you claim in many ways. What follows is a summary of just a few of the ways an attorney can enhance the outcome of your claim.

YOU NEED TO QUIT WORRYING ABOUT THE ADUJSTER AND CONCENTRATE ON GETTING BETTER: Retaining an experienced personal injury attorney within two weeks of your case can take a load of stress off your back, can give you the confidence of knowing that you now have a plan for how to get over your injuries faster, and a plan to maximize the value of your claim so you can get just and fair compensation. The attorney can also explain how and why you are feeling the pains you are feeling, what the doctor will probably do for you, what kinds of diagnostic tests you may be looking at, and how long your recovery might take. This is based on the attorney's vast experience in helping people just like you. It is not unusual to have a client tell me after the initial interview how much better they feel and how much stress I have taken off of them. From that moment on, they know they can leave the claim-handling to me while they concentrate on recovering from their injuries.

THE ADJUSTER WILL NOT TREAT YOU FAIRLY: First, you are sadly mistaken if you think the adjuster will deal fairly with you. Bodily injury adjusters are notorious for taking advantage of injury victims. Most of them will NOT EVEN RETURN YOUR CALLS. This is not only rude and unprofessional, but it is frustrating and defeating. Understand that this is a tactic they use to discourage you from going forward with a claim and make you think twice about filing a claim to begin with. After all, what are you getting into if just trying to get the adjuster on the phone takes up a huge amount of your time and gives you a huge headache? This tactic is also designed to stall you and keep you from going forward with actions you need to take in order to preserve a good claim. For example, their failing to communicate with you could lull you into spending your time chasing the adjuster instead of spending your time going to the doctor or to therapy. It could delay you in even seeking treatment. These are mistakes in handling your claim that the adjuster is deliberately trying to steer you into. If you think the adjuster is going to give you medical advice or even facilitate your treatment or pay for you to go to a doctor, you are sadly mistaken. This is NOT the adjuster's job. Finally, by stalling you toward the end of your claim period, the adjuster can lull you into missing the statute of limitations. This will result in you waiving your claim forever.

AN ATTORNEY CAN GUIDE YOU THROUGH YOUR MEDICAL TREATMENT: Believe it or not, during the early part of your claim your attorney is far more valuable to you in guiding you through the medical issues than the legal ones. This is because, as experienced personal injury attorneys, we have read thousands of pages of medical records, operative reports, EMG/NCS reports, and other diagnostics such as MRI's and CT-SCANS. We understand the protocols of trauma treatment, from the three-tiered approach of muscle relaxers, pain medicine, and physical therapy, to the indications for further testing such as MRI's or nerve conduction studies, and the indications for when a specialist such as an orthopedic, plastic surgeon, neurologist, or psychologist may be needed. I have seen too many cases of clients ruining their claims simply because they had no one to guide them through the medical process. In short, their medical paper trail is a mess and has devalued their claim. Had they hired me within two weeks of their accident, I could have advised them through their medical journey, made sure there were no gaps in their treatment, and made sure they went to the right specialists. This would have not only resolved their pain but it would have also improved the value of their claim, thus getting them more compensation for their injury even after allowing for attorney fees.

AN ATTORNEY CAN FACILITATE MEDICAL TREATMENT FOR YOU EVEN IF YOU HAVE NO HEALTH INSURANCE: People sometimes think the at-fault driver's insurance company will pay for them to go to the doctor. This of course is never the case. The last thing an insurance company wants to do is make it easy for you to get medical treatment. Legally, the insurance company can only be made to compensate you for medical expenses, not pay for them up front. Your attorney knows doctors and other specialist who will treat you on what is known as a letter of protection. This means that the provider agrees to provide treatment up front and get paid from any insurance settlement or judgment.

What about your family doctor? If you are fortunate enough to have health insurance and have a family doctor, why can't you go to your family doctor and use your health insurance? Many times you can but oftentimes, your family doctor will not want to "get involved" in an accident case or a "legal" matter. Also, many times the family doctor is not accustomed to, or set up for, providing treatment to patients with traumatic injuries. Many clients will tell me that they went to their family doctor and he merely advised them to take Advil and come back in 2-3 weeks if their pain persisted. In my opinion, this just sets you up to be in pain longer and does nothing to address the cause(s) of your pain. A doctor who is accustomed to treating patients who have suffered traumatic injuries usually takes a more aggressive approach and puts the patient on a regimen of pain medication, anti-inflammatories, muscle relaxers, and therapy. The idea is to get on top of the issues causing your pain early and make sure they don't lead to worse symptoms. Your attorney can arrange an appointment with a doctor who knows how to treat trauma patients and who will do so on a letter of protection. This will not only help you recover from your injuries faster, but it would also increase the value of your claim, thus getting you more compensation for your injury even after allowing for attorney fees.

AN ATTORNEY CAN NEGOTIATE MEDICAL LIENS AND INSURANCE SUBRGATION CLAIMS: Personal injury cases usually involve hospital liens and/or health insurance subrogation claims. Many of them have Medicare liens as well. Resolving these matters is something we personal injury attorneys do on a regular basis even though we do not get much credit for it. Your attorney should investigate and determine whether the hospital lien is valid. He should also determine whether the subrogation claim from your health insurance is based on an ERISA plan or not, a distinction that can be important to you. He should communicate with Medicare and file necessary paperwork early on in your claim. Finally, your attorney can negotiate a discount for any liens or subrogation claims that will have to be paid out of a settlement. It is important to note that these discounts are only available to you if you have an attorney. This is the lien holder's way of compensating you for your attorney fees. So, if you handle your own claim, you will have to pay the full amount of the liens and subrogation.

YOU ARE A NOVICE UP AGAINST AN ADJUSTER WHO IS A PROFESSIONAL: The adjuster assigned to your case has had extensive training and has handled thousands of claims. He or she also has a supervisor and lots of resources to help him/her adjust your claim in a manner favorable to the insurance company. You, on the other hand, have probably never handled a claim before, know nothing about what the adjuster is looking for in evaluating your claim for settlement, and have no idea what a jury might award you if you were to take your case to trial. An experienced personal injury attorney can stand toe to toe with the adjuster and get fair compensation for your injury. He or she knows how to best present your case to the adjuster and, if need be, a jury. He has tried similar cases to jury verdicts and knows what the value of your claim is. He reads reports of cases like yours that are being tried at the courthouse every day in order to stay informed about what juries are doing with similar cases. He knows what kind of evidence a judge will let in and what evidence a judge would not allow. During negotiations, the adjuster knows that if a settlement is not reached, your attorney will file suit against the insured and the insurance company will have to spend manpower and money defending a lawsuit. All of these factors increase your odds of getting a better outcome with an attorney than without.

CONCLUSION

Insurance claims take up the biggest portion of an insurance company's resources. They are big business. The claims department DOES NOT exist to take care of you. As a matter of fact, there is no law that regulates how a claims handler should handle your claim! They don't even have to talk to you let alone make you a settlement offer! "I'll sue!" you say. Think again. Under Texas law, you CANNOT sue the at-fault driver's insurance company! Your only recourse against a claims handler who has been unfair with you is to sue his/her insured. The odds are stacked against you and your best hope if you have been injured is to consult with an attorney experienced in dealing with insurance claims.