What Is The Status Of My Personal Injury Case?
I’ve sometimes asked “what is the status of my case”, or “what’s going on with my case”? These are legitimate questions, to be sure. Any represented person is entitled to reasonable updates, when new information is available, about their claim.
I Attorney Eric T. Kirk often find the best way to answer this question is to describe the process and the progression of the typical personal injury case. The beginning of that process, of course, is the injury itself. Whether that is a car accident, a slip and fall, or some other type of unfortunate event in which someone sustained bodily injury due to the negligence of another. It has always been my strong recommendation that at this point, immediately after the accident, that any injured individual is checked out by a medical professional to either 1] determine the nature and extent of the injury and the necessary treatment, or, 2] hopefully determine if there has been no injury at all. If, in the accident, there has been a bodily injury that requires additional medical care, we enter the next phase of the personal injury case.
It is at this point, where there has been an injury that requires treatment, that I strongly advise the injured person consult with an experienced personal injury attorney.
We’ve explored in other guides the balancing process and factors that one may go through in determining whether to hire a personal injury or accident lawyer.
As a general rule, I would offer the following advice. Hiring an attorney early in the process is by far preferable to retaining an attorney later in the game.
The more quickly that an attorney’s investigation commences – the better the results. An evidenced gathering and preservation process that starts late can be ineffective. An attorney retained soon after the accident has the ability to locate witnesses and otherwise preserve evidence. An attorney retained early in the case has the ability to lay the groundwork for negotiation, and potential settlement, with an insurance company early on in the process.
Once you have retained counsel of your choosing, the second phase of the routine personal injury case is, for lack of a better label, “the medical treatment phase.” During this period, the insured individual needs to do each and every thing recommended by their treating physician. They may or may not be out of work, depending on the severity of the injury. During this period, the personal injury lawyer is collecting information, marshaling facts, and engaging in a dialogue with the insurance company to set the stage for the next phase -demand and negotiation.
While the injured person is getting medical treatment, there will be generally be no need for discussion on the case, hence no status update.
Note that I did not say no activity. Effective personal injury attorneys will accumulate all evidence that supports a favorable liability determination, and assemble all evidence that supports a claim for damages. This will, at the appropriate time, be presented to the insurance company. This does not happen, in almost every case, until the injured person has completed medical care and achieved a medical baseline. The “status” of the case during this phase is already well known to the client, for it is the same as their medical progression.
The next stage of the process is where we present this information to the insurance company or claims adjuster in what is known in the industry as a demand package. There are no rules in the industry for the process, but we can make some generalizations. It’s typical for an insurance company to have 30 to 60 days to evaluate the claim. In these demand materials, the accident attorney will set forth your theory of liability, if in dispute, and make arguments supporting your claim for damages. In serious injury instances the lawyer may opt to demand a specific dollar amount for settlement that is based on that attorney’s valuation of the claim. There are three possible responses to the demand for settlement. The insurance company may deny liability or responsibility for the accident.
The claims adjuster might say that their insured person is not responsible, or indeed, that the injured person caused or contributed to the accident so that there should be no recovery.
We are seeing with increasing frequency what I like to call the “de facto denial”. GEICO, in particular, routinely acknowledges that an accident occurred, tacitly acknowledges that their insured driver is responsible, but then denies any compensation, stating that “it is difficult to understand how someone could have been injured in the accident”. While this is not an outright denial of the claim, it has the same effect. The second possible response to the demand is an offer of settlement, which in turn, falls into two categories: one that is acceptable, or could be after some negotiation upwards, and lowball. A lowball offer is what the industry recognizes as a token offer that doesn’t match the value of the claim. If your attorney is unable to successfully negotiate any offer upward to an agreeable amount, litigation becomes the next step.
Litigation is the final phase of the personal injury claim after medical treatment is complete, and where settlement negotiations have been unsuccessful. The initial step in litigation is of course the filing of a personal injury lawsuit. There are strategic and tactical decisions that your lawyer needs to make it this time. Filing in the most advantageous venue, and in the most advantageous court within that venue are two factors considered. I discuss the process of litigation in another guide.