Being Patient When It Pays, Pushing When It Does Not
"How long will it take for my personal injury claim to resolve?" This is one of the most frequently asked questions we receive from new clients and prospective clients. We certainly understand that someone who has just suffered significant, serious, or even devastating injuries, who may be in the midst of planning and receiving considerable medical care, and who may be dealing with the headaches of getting a damaged vehicle fixed or replaced, coordinating with their employer for time off from work, and figuring out how the heck to get the kids to school, just wants it all to be over and done with. The last thing they want to have to deal with is a personal injury claim with all its complexity and paperwork.Communicating Clearly with Clients
Unfortunately, when we're having these early conversations with clients or with folks who are trying to decide whether to become clients, it's almost always impossible to give an accurate answer. We'll sometimes reply, "Somewhere between a few months and a few years," then explain that this answer is half-serious and half-joking as a way to say, "We really don't know, and we don't want to give you an estimate that we know is uncertain." An experienced personal injury attorney will explain to clients that at the early stages of a personal injury claim, there are far too many "unknowns" that will substantially impact the claim's timeline to give any kind of realistic schedule estimate. Just a few of these likely "unknowns" during the early stages of a claim include:
- Is liability clear? Ideally, we have a police traffic collision report that's been promptly prepared, and that completely describes how an accident occurred, who was responsible, who provided liability insurance information, etc. If we don't have that "perfect" official collision report, then time may be necessary to independently investigate the accident, locate and interview witnesses, collect insurance information from the involved drivers (or from the DMV if the drivers/owners don't cooperate).
- What insurance coverage is available for our client's claim? Once we know who was involved in the traffic collision, we can then move on to determine what insurance the responsible parties may have that will be applicable for our client's case. What is our client's own coverage for medical payments and/or uninsured motorist claims? What is the responsible driver's insurance? If the responsible driver was in someone else's vehicle, what is the owner's insurance? If the responsible driver was on the job, who is the employer's insurance company? Again, if we are lucky, that "perfect" traffic collision report will identify all or most of this information, but that's often not the case.
- How long will our client's medical care take to complete? Unfortunately, some injury victims are left with permanent injuries that may require some kind of ongoing treatment more or less for their remaining lifespan, but in most situations, all or nearly all medical care will be complete in the span of a couple months to a couple years. Getting to a stage where all medical care is completed – or at least enough of the medical care to accurately estimate the personal injury claim's value – is usually the first major time element in a personal injury claim.
- How long will it take from the time of a settlement demand until the claim is resolved? This is often the biggest "unknown," because it depends upon actions taken by other people over whom our clients and we have limited control – by insurance adjusters to whom claims are submitted, by defense attorneys who handle the cases that have to be filed in court because they couldn't be settled directly with adjusters, and by the courts, judges, arbitrators, juries, expert witnesses, and everyone else who may be involved in cases that have to go far into litigation to reach a resolution.
An experienced personal injury attorney will clearly communicate with clients both those case elements that we are certain about and these unknowns that haven't been nailed down yet and how each will impact the pace and timing of a client's claim. One of the most essential services a personal injury attorney can provide to a client is to know when the client's claim will benefit from a little more patience and when it's necessary to give it a good push. This is a key tool for dealing with many of the tricks the insurance companies like to play.Where Patience Is Likely to Pay
As mentioned above, the length of time that a personal injury victim's medical care takes to complete – or mostly complete – is usually one of the major time elements in the course of a personal injury claim. A thorough diagnosis of the victim's injuries, including (1) shorter-term problems that have resolved, (2) longer-term problems that are likely to resolve soon, and (3) permanent, chronic issues that are unlikely to ever go away, is the most fundamental element in valuing a personal injury claim. This is virtually never clear right off the bat. More typically takes at least months for the short-term injuries to completely resolve and the long-term or permanent injuries and/or disabilities to become clear to the doctors treating them. Going hand-in-hand with this medical care is the billings for the care itself. These charges are a second significant element in claim valuation. Early in a personal injury claim when active medical treatment is still ongoing, the full scope of these billings can't be known.
A common insurance company tactic is to try to offer quick money for settlement before an injury victim (or their attorney) really has a good idea of what the full value of the injury claim may be worth. "I can send you a check for a few thousand today, and you can have this over and done with!" Unless it's clear that all the responsible parties are offering all their policy limits in settlement (and frequently those details won't be clearly known for certain early in a claim), these kinds of "quickie" settlements almost always shortchange the personal injury claimant. The full value of the claim is nearly always unclear this early to the claimant. In contrast, the minimum potential claim value is something the insurance adjuster probably has a pretty good idea about – and this is almost certainly more than the "quickie" settlement offer.
An experienced personal injury attorney will usually advise clients that patience pays in these situations. Letting the necessary medical care take its course – hopefully resulting in complete healing with no ongoing symptoms – will give the claimant and doctors the time required to accurately and completely identify the victim's injuries and complete the evidence (medical records and billings) that primarily substantiate the injury claim's value.
In some cases, of course, the personal injury victim's diagnoses may still remain unclear or incomplete after an initial period of treatment. In these situations, taking the time for discussions between patient and doctor about other treatments, second opinions, additional testing, and/or specialist referrals can provide options for clarifying the diagnoses and potentially identifying different or additional treatment options. The most direct benefit of taking time for these steps is finding more effective care for the injury victim, but it also has benefits to the personal injury claim to the degree that it better and more fully identifies the injuries and medical care necessary to treat them.
In other situations, even where a personal injury claimant's injuries are well-identified, and all the relevant medical evidence has been collected from treating doctors, the wage loss evidence has been collected from employers, etc., it sometimes is the case that the evidence doesn't fully and completely express the nature and degree of the personal injury claimant's damages or why a defendant's actions caused them. In these instances, taking the time to engage the services of appropriate expert witnesses – medical experts, accident reconstruction experts, medical life care planners, vocational rehabilitation experts, etc. -- can be well worth the time investment to the degree that their analysis and expert opinions based on the evidence can more completely identify and support the value of the claimant's damages.When A Good Shove Is Necessary
In most cases, when patience has resulted in a well-documented and thoroughly evaluated settlement demand being sent off to an insurance company adjuster, the ball is now in their court. Sometimes, the insurance company needs a bit of urging to keep things moving.
Some insurance companies have fairly obvious practices of regularly denying or lowballing certain types of claims. In this situation, an experienced personal injury attorney will recognize that it's highly unlikely for a claim to be settled for a fair amount promptly. Time to just file suit and move forward into litigation, because that's likely the only route to an appropriate settlement of the client's claim.
Many other insurance companies may use delaying and stonewalling tactics to simply drag out the claim settlement process in hopes that a claimant or inexperienced attorney will simply take what's being offered to "get it over with" or that they will allow the insurance company to hang onto their money for a long, long, long time, continuing to accrue investment income on the claims dollars until they are eventually paid. No point in waiting – just file suit, serve the defendants, and compel the insurance company to either settle for fair value or start paying dollars to a defense attorney to handle what is likely a losing proposition.
An experienced attorney can also look at cases and recognize which ones are just about certain to end up in litigation. Claims that are large but which are not absolutely certain policy limits claims are a good example. These are cases where there are likely to be valid disagreements on the valuation of damages. They are cases where both sides are likely to be interested in retaining expert witnesses to more fully support their positions. These are cases that are just about certain to take a long while – perhaps even going all the way through arbitration or trial – before they get resolved. In many of these situations, there is little benefit to waiting on the start of litigation – it's going to happen one way or another – and simply filing suit promptly is the best way to get that final resolution to come about sooner.
See the links below for more on claim tactics by insurance companies, and how an experienced personal injury lawyer deals with them:
- Types of Auto Coverage and First and Third-Party Claims
- Insurance Company Tactics
- How an Experienced Personal Injury Lawyer Handles Insurance Company Tactics
- The Insurance Industry -- Huge and Hugely Profitable
:GM cha [cs 1784]