In a car accident, liability involves a comparison of fault. Sometimes fault rests solely with one driver. A rear-end collision with a car that is legally stopped at a red light is an example of an accident in which the victim is entirely blameless.
Sometimes fault rests with a careless driver and with the injury victim. For example, if a driver enters an uncontrolled intersection and causes a collision by failing to yield to a vehicle approaching from the driver’s right, that driver is at fault. On the other hand, if the driver approaching from the right was speeding, that driver might share some of the blame for the accident.
When both the injury victim and the negligent driver share responsibility for the accident, a personal injury lawyer must decide how much blame to allocate to each driver. If the driver that failed to yield was 70% at fault and the speeding driver was 30% at fault, the speeding driver will be entitled to recover 70% of his or her damages.
Apportioning fault is more an art than a science, but after years of studying jury verdicts, it becomes reasonably clear how a jury would divide fault if the case went to trial. Of course, personal injury lawyers are advocates for our clients. We see accidents differently than insurance adjusters, who are only interested in saving money for insurance companies. Persuading insurance adjusters to accept our opinion about the insured driver’s responsibility for the accident is a key part of settlement negotiations.
Settlement value depends in large part on how seriously a client was injured. Since our evaluation is based on what we can prove in court, we depend on medical records and opinions of treating physicians to help us understand the severity of an injury.
Larger medical bills tend to lead to larger settlements. For that reason (and because we want our clients to regain their health), we encourage clients to follow through on medical appointments and attend all physical therapy sessions. They may be time consuming, but an insurance adjuster will assume your injury was healed if you fail to comply with treatment recommendations. In addition, since insurance adjusters also rely on medical records to evaluate cases, we ask our clients to make sure to tell their physicians about all of their symptoms so that they are well-documented in those records.
Permanent or long-term injuries have a greater settlement value because the injury victim must be compensated for pain and suffering that may last a lifetime. In addition, permanent injuries often involve ongoing medical expenses, a continuing loss of income, and the need to buy medical equipment (such as wheelchairs and an accessible van).
After a doctor determines that all injuries are fully healed or that the client has reached a healing plateau (the injuries are unlikely to get any better in the near future), the case is ready to evaluate for settlement. Depending upon the circumstances, we may need the assistance of a vocational expert, an economist, and other experts to help us determine the full financial impact of an injury upon the client’s life.
We also need to evaluate the personal impact of an injury. An injury can cause a victim to lose the ability to enjoy life. It can produce ongoing physical agony. It can lead to depression and emotional anguish. All of those factors must be considered in arriving at a settlement value.
Finally, we take into account the cost of going to trial. Litigation is expensive. Settling a case saves the cost of expert witnesses, deposition transcripts, and other expenses. Subtracting cost savings from our initial valuation of the case produces the settlement value that we recommend to our clients.
Having arrived at a settlement value, we meet with the client and ask for authority to settle the case for no less than that amount. We never settle a case without a client’s approval.
We next write a demand letter to the insurance adjuster, laying out the evidence in support of our position. We use the kind of persuasive language that would sway a jury, not because we expect an insurance adjuster to be sympathetic, but to make the adjuster understand that a jury will sympathize with our client’s suffering. In that letter, we make a settlement demand, which is simply a legal term that refers to the initial settlement offer. The settlement demand will be higher than the settlement value so that we have room to negotiate.
The adjuster will make a counter-offer, which we will convey to the client. We typically recommend that the client reject that offer. With the client’s approval, we then make another offer. Negotiation continues with offers and counter-offers.
In some cases, we negotiate by telephone. In other cases, we negotiate face-to-face. Occasionally, we negotiate with the help of a mediator, although that is more likely when negotiations take place after a lawsuit has been filed.
At some point, based on our experience, we conclude that we have received the best offer we are going to get. Depending on whether the offer is reasonable, we recommend that our client accept it or reject it and proceed with litigation. Whether to settle, however, is always our client’s decision.
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At Timothy J Ryan Associates, we are backed by winning results. Not only have we handled thousands of personal injury lawsuits, but more than 99% of them have been settled successfully—resulting in more than $1 billion dollars in compensation for our clients.
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