What should you do when a new client calls your office about an injury case? Usually, the new client is distraught so the lawyer must reassure the potential new client by providing helpful information.
First, assist the client in the initial investigation of the crash even if liability appears obvious—insurance companies routinely deny liability despite obvious facts. So instruct the client to take many photos of all vehicles, light sequences, any obstructions, skid marks, constructions signs, property damage, trees or bushes, and all debris created by the crash. Next collect all witness information like name, phone numbers, or emails. Immediately visit the crash scene to locate surveillance videos and figure out a way to collect the video before it is deleted. Visiting the crash scene within the first 48 hours can reveal critical facts previously not known. Depending on the size of the case, go inspect the scene yourself, send a staff member, private investigator, or have a client’s family member visit the crash scene and take more photos.
Every crash has unique facts, so use your critical thinking skills to immediately preserve the crash facts. Take nothing for granted in the first 48-72 hours and secure the evidence. Always collect as much evidence as possible because memories fade but properly secured evidence will win the day.
Second, you must provide guidance to your client about the importance of medical treatment. The Federal Government reports that about half of Americans do not have employment-based health insurance, and, sadly, most employment-based health insurance programs do not cover motor vehicle injury treatment. The employment-based health insurance will, however, pay benefits for the hospital care and ambulance service. But how should you counsel the client on medical treatment after the initial hospital care?
Ask the client if he/she has a primary care doctor, and if he/she does have a primary care doctor instruct the client to contact the doctor and seek care immediately. Also give the client confidence that if the doctor refuses to treat the client—which is generally the situation—that you have a network of doctors that will help the client. Why not just send the client to your network?
One dirty trick insurance lawyers love to use is to insinuate through cross-examination that the medical treatment the client received was orchestrated by the plaintiff lawyer because the client did not seek medical treatment from his/her primary doctor. So prevent that by instructing the client to seek medical treatment initially with their primary doctor if possible. The clumsy defense lawyer may also open the door to insurance evidence with this cross-examination.
Additionally, if a client has an established doctor-patient relationship this will help documenting the injuries caused by the motor vehicle crash by showing before the crash the client was healthy but after the crash the client has new injuries. Also, in my practice I have represented many clients with chronic health problems that were made worse because of the crash. Representing clients with chronic health problems can be a treacherous course with devastating outcomes if not done properly.
Demand Letter or Lawsuit
Injury cases generally have two outcomes related to the medical treatment—the client completes medical treatment with a full or partial recovery or the client’s injuries are permanent and require future, indefinite medical treatment. The latter outcome nearly always requires litigation so we will focus on the first (and more common) outcome. When the client’s medical treatment is complete the plaintiff lawyer should initiate negotiations with the insurance company. So what should you do?
Collecting Medical Records
Begin by collecting all relevant medical records and medical bills. You should collect the documents anticipating litigation which means obtaining the medical documents in compliance with Texas Civil Practice Remedies Code Chapter 18. There are situations where you might use informal medical records and bills to negotiate with the insurance. But, in general, always obtain complete medical documentation with affidavits.
Lost Wages/Earnings Documents
You will also need to collect documents proving lost wages or diminished earning capacity. Lost wage documents include paystubs, W-2s, letters from employers about the client missing work, or sometimes tax returns. Making a successful recovery for diminished earning capacity is complex and requires working with the client to discovery the best evidence to calculate with reasonable certainty the monetary loss. Whatever you collect make sure the medical documentation supports the lost income with doctor’s notes and the dates align to make the calculation easy for the insurance company to understand.
Drafting the Demand Letter
After collecting all material facts, you are ready to prepare the demand letter. The demand letter is where many lawyers make unforced errors. When the insurance company receives a demand letter that contains typos or is a copy-and-paste job the insurance adjuster realizes you are not a serious lawyer. Only serious lawyers obtain serious settlements. You must personalize each demand letter to the facts of your case. Discuss the liability facts and briefly explain why a potential jury will find the tortfeasor the exclusive cause of the crash. Also never refer to the vehicle collision an “accident.” There are no accidents only intentional public safety rule violates.
Then give a detailed account of the client’s injuries and medical treatment. Use the medical terms and diagnoses from the medical records. Give examples of the pain the client experienced. Provide example of the client’s physical limitations created by the injuries. Describe any future or permanent problems caused by the injuries. Provide examples of the isolation and mental anguish suffered because of the injuries. The insurance company will not pay money for physical and emotional injuries it does not know about and it is the lawyer’s responsibility to tell that story.
Release Language in the Demand
The demand letter is not complete without making a demand for money in exchange for a complete release and indemnity of the claim. Many insurance policies are what is called a minimum limit policy—i.e. 30/60 policy. In minimum limit cases, the client’s harms and losses easily exceed the policy limit. So what does this mean? This means the demand must be crafted in a way to protect the client and create a Stower’s scenario. The Stower’s release must be clear and unequivocal. Every demand should conclude with language such as this:
This offer includes a full release of all liens that attach to this claim. It also includes indemnity for any subrogation interest that effect this claim. The release offered by this letter includes the release of any person or entity that may be liable by, through or under [identify the tortfeasor(s)], and a release of, and indemnify for, any claim which is asserted by, through or under [identify the client]. This settlement offer will expire on [specific a date and time] if a check for the demanded amount or policy limit is not received in my office.
Should I Handle the Case or Refer the Case Out
Handling a personal injury case can be emotionally and economically rewarding for the lawyer. However, these cases are difficult, and an inexperienced lawyer can easily harm the case beyond repair. If you are hired on a simple relatively minor injury case and seek advice, contact Houston Injury Lawyer Holland DeKeyzer. He has helped dozens of younger lawyers navigate the complexities during injury claims. If you have a significant injury case, contact Holland to joint venture or refer the case to DeKeyzer Law to ensure the client’s recovery is maximized. Joint ventured and referral cases also ensure the case is funded properly and you receive your share of the attorney fees.