Protecting Your Legal Rights When You are in an Accident
AFTER THE ACCIDENT:
What should you do?
What should you avoid doing?
By Reuben J. Donig, Attorney at Law
If you're injured and someone else is responsible, what steps should you take to protect your rights?
In my thirty years of practicing law, I have learned that you almost always will face problems dealing with the other side, or their insurance company in asserting a personal injury claim. In an ideal world, you would accumulate your economic damage information, determine the value of your non-economic (pain and suffering) loss, make a claim for the total amount against the other party's insurance company, and settle the case promptly. In real life, it is never that simple.
In real life, you are certain to face one or more of the following obstacles and problems from the person or persons responsible for causing your injuries, and from their insurance company and lawyers:
- The person or persons responsible for causing your injuries are uninsured, inadequately insured, and don't have the financial ability to pay any or all of your damages.
- The person or persons responsible for causing your injuries completely deny liability.
- The person or persons responsible for causing your injuries deny full liability, and blame you, or someone else for contributing to your injuries.
- The other side denies that you were injured, or denies the severity of your injuries, and accuses you of exaggerating your injuries.
- The other side claims that some of your medical treatment was unnecessary, or that the cost of your treatment is excessive.
- The other side claims that some or all of your injuries and symptoms were not caused by the subject accident, and that they either pre-existed, or else came about long after the accident in question.
- The other side claims that you are exaggerating or overstating your income loss.
- The other side claims that you should have been able to work, and thus your income loss claim should be reduced, or eliminated from your claim.
The objective of the other side is not to compensate you fairly; it is to pay you as little as it can get away with, or nothing at all. In attempting to accomplish this goal, the other side, particularly if there is insurance, will go to great lengths, including often engaging in questionable, and sometimes even unfair tactics to avoid compensating you properly.
It is incumbent upon you to take the necessary steps to best preserve and protect your claim. The best assurance you can have in properly protecting your claim is to hire an attorney as soon as possible after the accident has occurred. But that is not always possible, and in any event, does not always happen. If you have not already hired an attorney, you should at least take the following steps to protect yourself and your claim:
I. THINGS TO DO:
A. DOCUMENT, DOCUMENT, AND DOCUMENT YOUR CLAIM
Your claim essentially consists of two parts; Liability and Damages. For your claim to get the attention of the other side, you must document, as much as possible and as quickly as possible, both of these elements.
1. Documenting Liability:
If your injuries were caused by an accident, it is very important that there be a report made of the accident. Traffic accidents should be reported to the local police or highway patrol, and should result in a written report. If no such report was made at the time of the accident, you can sometimes call the appropriate police agency and request permission to file a report, or have the police create a report after the fact. If your injuries occurred in a store or place open to the public, make a report to the manager in charge, and ask for a copy of any statement that you make before you leave. If your request is refused, write a letter to the store as soon as possible, detailing the information pertinent to how your injuries were incurred, and mail it to the manager of the store BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED.
Make sure to include as much information in the report as possible, including the full names, addresses and phone numbers of all witnesses and involved persons.
Always keep a copy of anything you give to the other side.
If your injuries were caused by a faulty condition, such as a badly uneven sidewalk, it is imperative that you be able to show the condition. The best way is to have yourself or someone else take plenty of photographs, clearly showing the condition as it existed when your accident occurred. You need to get these photographs taken before the condition is corrected or changed. Use props, such as a ruler or tape measure or other appropriate object, to demonstrate or highlight the problem.
c. Keeping evidence:
Carefully maintain all evidence, (broken bottle, foreign object in your food, shoes you were wearing in a slip and fall case, device that caused your injuries, such as an electrical cord, etc.) in a safe place. If the object is small enough, place a protective cover around the object, and write down important information on the outside.
2. Documenting Damages:
Make sure to take photographs of as much evidence as possible, before the conditions change. That means lots of pictures of your vehicle, taken from close and far, and different angles, showing as much as possible of the areas and extent of damage to the vehicles involved, or the site of, and condition which caused your accident. If your injuries are visible, take photos of abrasions, scrapes, bruises, lacerations, broken bones and casts, slings, collars, as well of you in your surroundings, (hospital or other bed, wheelchair, walker, and the like.) As your injuries progress, make sure to take additional photos, showing changes. Keep careful track of the dates on which all photos are taken.
b. Medical Records:
You should see your doctor, or be seen in the trauma unit at a nearby hospital soon after the accident. Make sure to completely describe all pain that you are having, and do your best to make sure that your doctor carefully writes down your complaints.
c. Income records and documents:
Persons who are self-employed have a harder time establishing their full income loss than do employees. Employees can usually document their income loss by furnishing some pay-check stubs showing a reduction of pay, or need to use up sick leave or vacation leave as a result of being injured and unable to work. That, together with medical records and a letter from the employer is usually considered sufficient to establish income loss.
If you are self-employed, your injury costs your business money. You are either unable to work for some period of time, or you are able to work only part-time, or less efficiently. You may need to hire additional help because of your injuries. A loss in your ability to take care of your customers, clients, or patients can result in a long-term downturn in your business, as a result of your loss of goodwill.
Self- employed people need to have clear books and records, and be willing to show them to the other side. Although the other side cannot force you to show your tax returns, copies of Schedule C's for similar periods before the accident can be helpful in showing a slowdown in income, or increase in overhead which is due to your injuries.
It is critical to not only have accurate records of your income for a reasonable period of time prior to your accident, but to make sure that you have accurate and detailed business records afterwards. Start documenting these losses immediately, before you lose the information necessary to recreate them.
d. Expense records:
If the accident and your injuries are costing you other out of pocket expenses, (such as housekeeping help, gardening help, baby-sitting help, car rental or taxi fare) make sure to keep a good record. Pay whenever possible by check or credit card, so that you have documentation to support your claim.
e. Consider keeping a diary:
If your injury is materially affecting your lifestyle, it can be a good idea to keep a daily journal, entering such information as the pain and other symptoms you are experiencing, the frequency of the pain, and how it is affecting your ability to partake in your activities.
II. OTHER THINGS TO DO
A. DO Follow your doctor's instructions: If your doctor has advised you to take time off of work, cut back on certain activities, obtain physical therapy or diagnostic tests, you should do so. Failure to abide with your doctor's advice will be harmful to your case, and will substantially lower the value of your claim.
B. DO Call an attorney who specializes in personal injury claims: Many personal injury lawyers will be willing to talk to you about your case at no charge. Even if your case is too small to retain an attorney, most personal attorneys will be willing to listen to the details of your claim, and give you some valuable advice which you can use in dealing with the adverse insurance company.
III. THINGS NOT TO DO:
Do not do any of the following things, especially if you are thinking of retaining an attorney:
If you are thinking of retaining an attorney, the following things should be avoided by you, until and unless you first get advice from an attorney:
CAVEAT: If you don't have an attorney, the adverse insurance company will try to require you to give a tape recorded statement, and sign authorization papers permitting them to get your private records. They will try to get you to sign a settlement and release for less than the value of your case. In fact, they may refuse to deal with you unless you give in to these demands.
A. Do NOT discuss the details of your claim with the other side, or their insurance representative: You may be contacted by the other side's insurance company. Give out only necessary, general information.
B. Do NOT permit the other side's insurance company to tape-record your statement: You should never give the other side's insurance company a written statement, and you should never permit them to take a tape recorded statement from you, without the advice and permission of your attorney.
C. Do NOT sign papers permitting the other side to obtain your records: The other side's insurance company will usually try to get you to sign papers allowing them to get your medical or other records. If you attempt to settle without an attorney, you should not agree to this without at least first talking to an attorney.
Keep in mind that, if you wish to settle your claim without an attorney, the insurance company for the other side will usually refuse to settle with you unless you agree to do the things listed above. Even if your case is small, you will be better off if you speak to an attorney and get some general advice. If you don't have an attorney, you can try contacting your local Bar Association. Most counties have a lawyer referral service where you can speak to an attorney for 30 minutes or so for a small charge, (usually less than $50.00).
D. Do NOT settle your case without an attorney's advice, unless your injuries are minor and have completely resolved: Once you sign a settlement agreement, you can not re-open your claim, even if your injuries are more serious than you thought, or if you later determine that your settlement was unfair or incomplete. If you don't have an attorney, you should only agree to a settlement if you are sure that your injuries were minor, and have completely, or essentially resolved.
E. Try to NOT discuss the details of your claim with outsiders: You will undoubtedly feel a need to speak to family, friends and co-workers about your accident. Even though you may be tempted to discuss the details of your accident or injuries with friends and co-workers, you should not. These discussions are not confidential. They can be misunderstood or taken out of context. Your discussions are subject to investigation by the other side. Be circumspect about what you say about your case, and who you speak to about it.
IV. DEALING WITH YOUR OWN INSURANCE COMPANY:
You are required to co-operate with your own insurance company, and unreasonable failure to do so may jeopardize your coverage. In most cases, you should allow them to take pictures, analyze your property damage, and obtain necessary information regarding the accident and your injuries.
Keep in mind that you are free to obtain your own damage estimates, and medical advice and treatment. You are not bound to have your car fixed, or your medical treatment performed by persons selected by your automobile insurance company.
CAVEAT: If you will be bringing an uninsured motorist claim, your own insurance company will be your adversary! Consult with an attorney before discussing any aspect of your claim with your insurance company, or allowing them to take your statement. A statement by you which either admits fault, or can be construed as admitting fault, or which is obviously false in a material respect can jeopardize an uninsured, or underinsured motorist claim that you might be entitled to bring.