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Jun 25, 2020

Knowing where to start out with a personal injury case can be difficult. Dozens of questions are probably running through your head like:

In this guide, we will cover everything you need to know about personal injury lawsuits, and help you understand the answers to all of these questions and more.

By the end of this guide, our goal is to help you understand (in plain English, and not confusing lawyer terms) what you need in order to take the next steps in your personal injury claim or lawsuit. So, without further ado, let’s dive right in.

Lawyers are always quick to give advice about what you should have done after a personal injury. For example, after a car accident, they advise you to call the police, take pictures of the damaged vehicles, and get the name and phone number of any witnesses.

Lawyers also like to brag about what they can do for you at the end of your case, i.e. settlement or trial. What has been historically lacking, is practical advice about what you should do during the time between an injury and the settlement or trial.

Let me set the scene. After a jarring car accident, you are released from the emergency room, in a lot of pain, and your car is sitting in a tow lot. Even worse, your job expects you to be at work on Monday. How are you going to get through the next several weeks? This is not surprising. Thousands of people experience this anxiety-inducing situation every year.

Let us give you some peace of mind.

Personal Injury Claims vs. Lawsuits

If you or someone you love was involved in an accident and sustained an injury, or death, you have two legal methods available in order to obtain compensation for injuries and losses.

Legal Action

Purpose

Personal injury insurance claim

To negotiate a settlement for injuries and losses with a given insurance company.

Personal injury lawsuit

To file a civil legal action against the party at fault for the injury in order to receive compensation for injuries and losses.

In most cases, you will begin with a claim. If this is unsuccessful, you will move to a lawsuit with the help of your attorney.

Do I Have A Personal Injury Case?

Being injured is not enough to file a claim and receive compensation. The key factor is establishing negligence.

This starts with proving the party at fault had a duty of care in the situation. Essentially, you must prove that they should have done something but did not.

Examples of duties of care include: Business owners must remove hazards once they are aware of them. Drivers must obey the rules of the road.

When proper protocols are not followed, negligence occurs, at which point, the party who violated their duty of care is responsible for injuries incurred.

For example: If you are involved in a car accident and you break a rib, that isn’t enough for a legal case. If, however, you were involved in an accident and broke a rib because the other driver made an illegal move, you are entitled to compensation because of their negligence.

Once you can show that there was a duty of care, the victim (called the plaintiff) has to show that the responsible party (called the defendant) failed to adhere to that duty of care. In such cases, you can sue an employer, an organization, a business, an individual, a hospital, or any other party that is at fault. You can also sue more than one of these parties at once if they were all involved.

What Steps to Take for Personal Injury Legal Action

When you have sustained a personal injury, and are looking to file a claim or lawsuit, these are the steps that you should take:

1. Consult with Your Attorney

You want to begin by consulting an experienced personal injury attorney. They will help you determine:

  • Whether there was negligence

  • Who was at fault for said negligence (more on this later)

The attorney will also help determine the extent and severity of any injuries, subsequent medical costs, losses, and legal options.

2. Investigate the Case

After you have hired an attorney, they will investigate your claim and if necessary, collaborate with other experts in related fields (such as medical experts for medical cases). During the investigation your attorney will determine liability, obtain any necessary witness statements, outline the necessary information for your case, and more.

3. Submit A Demand Claim

Initially your attorney will submit a demand letter to the insurance provider or at fault party outlining the situation, the liability, and the damages. The opposing party (be it a business such as a mall, a hospital, another individual, or a company’s insurance provider) will review the letter and either:

  • Reject the demand

  • Accept the demand

  • Or make a counteroffer

When a counteroffer is made, you can elect to accept the terms, or turn them down and choose to go to trial with your lawsuit or claim.

4. File A Lawsuit

If an agreement cannot be reached during the claim phase, then a lawsuit can be filed by your attorney. After the suit has been filed, there will be a process called the discovery phase, during which time both parties try to obtain evidence from one another to evaluate the validity of the claims.

This process can take months, depending on the amount of evidence that needs to be gathered and the compliance of the parties involved.

5. Mediation

If the case reaches this point, a mediator may oversee a legal process called "mediation". The mediator is a certified legal professional (typically a current or former judge) who oversees an informal process to try and aid both parties in reaching an agreement.

This is a final effort to reach an agreement between both parties before taking the case to trial to be determined by a judge.

6. Trial

Assuming no agreement can be reached in mediation, then the next phase is a trial. This is overseen by a judge and jury who will then determine fault and potentially award compensation (otherwise known as damages).

If your case makes it to this point, your attorneys will go over a mock trial and review things like opening statement questions (something which typically happens in reckless homicide situations).

7. Appeal (If Necessary)

The last step in a personal injury case is the appeals process. The outcome of the case may not land in your favor at which point you can choose to pursue an appeal with the help of your attorneys. This qualifies as the last resort, legally speaking.

Why Working With A Personal Injury Attorney Is Essential

We know that getting injured is a painful, overwhelming, and at times a life-altering event. In many situations, accidents that led to injuries could have been avoided. To that end, if you were injured because of the carelessness of another person or business, you can receive compensation.

There are many factors to take into consideration when determining whether to file a claim or lawsuit. That is why we are here to help. While the information below provides remedial information, we can work with you one on one to lend a hand with your case.

How Long Do I Have to File A Claim?

The time immediately following an accident is stressful and confusing, and for many, the idea of working with an attorney, finding paperwork, and meeting deadlines seems impossible.

However,you are limited in terms of how long you must file a claim for an injury. The amount of time you have to file is referred to as the “statute of limitations” and each state is different. If you wait too long to file, you cannot take legal action.

The statute of limitations varies not only by state, but by the type of personal injury claim you are filing. Slip-and-fall claims against a mall have a different statute of limitations as opposed to medical malpractice claims against a nurse or hospital. It is imperative that you speak with a qualified attorney as soon as possible to determine the time limits you have.

What Happens Once I Decide to File A Claim?

Once you decide to pursue legal action, your attorney can guide you through the process. The length of your case is contingent upon things such as the severity of the injuries sustained, the level of cooperation between parties, and whether or not things are settled during mediation.

Most people settle prior to going to trial. Cases like car accidents, especially those where one party admits fault, tend to settle more quickly.

Most Common Types of Personal Injury Claims

Chances are, if you are filing a personal injury claim, you have been involved in one of the following types of accidents. We work in each category, helping our clients get the compensation they deserve for any type of personal injury they incur.

Road Traffic Accidents

These include accidents involving drivers, pedestrians, and cyclists.

Product Liability Claims

Every year there are approximately 20,000 product liability claims filed. These account for 7% of all personal injury lawsuits. They are the result of defective or dangerous medications, medical devices, foods, etc.

Premises Liability

Slip and fall accidents that take place in public areas like malls as a result of dangerous conditions fall under this category. This includes accidents in parking lots, retail stores, or other commercial properties, often where there are slippery floors, missing handrails, or obstacles in the walkway.

Wrongful Death

If someone is killed as a result because of carelessness, it qualifies as a wrongful death suit. Examples include a fatal car accident, a medical error, or even a defective product.

Case Study: Road Traffic Accidents

To give a better sense of how we walk you through the details of a personal injury claim, let’s examine the most common claims we see: road traffic accidents.

1. Do I need a rental car?
If your vehicle is damaged to the point where it’s either a total loss or it’s going to require repairs before it is driv­able, the at-fault driver's insurance will pay for your rental car. Many times, when you first contact the at-fault driver’s insurance company, you will hear something along the lines of "well, we will have to contact our insured and conduct an investigation before we can give you a rental car." Fundamentally, this is a huge problem because in today’s world, going without a car for days while waiting for an adjuster to do his job is extremely inconve­nient.

Nevertheless, because you know that the other driver clearly caused the traffic collision and that the adjuster will at some point conclude that your vehicle is not drivable. I recommend that you immediately contact Enterprise Rent-A-Car.

This by no means is an advertisement for Enterprise. The only reason I make this recommendation is because Enterprise works with every insurance company in the state. When you first call Enterprise, advise them that the at-fault insurance company is in the process of investigating your claim and that you are going to use your credit card or your own automobile insurance (if you have it) to initially cover the rental car expenses. It’s imperative you make it very clear that you intend to transfer the rental car payment responsibility over to the at-fault driver’s insurance company as soon as they complete their investigation.

This approach will get you a rental car today and allow you to eventually transfer the expenses and obligations of the rental car over to the at-fault driver’s insurance company. I have found that this is the easiest and fastest way to get back on the road after a car accident. The only thing you are going to need is a credit card and driver’s license. You are not required to rent the cheapest and smallest car on the lot. Your rental car selection should be fine if it is a comparable substitute for your wrecked car.

Lastly, don’t purchase the added supplemental insurance on the rental car. As long as you maintain insurance on your wrecked car, the purchase of any additional rental car insurance is unnecessary and the at-fault driver’s insurance company will not reimburse you for that expense.

2. I Am Hurt, but Who Will Pay to Repair My Car?
When your damaged car is still drivable and not a total loss, many insurance companies will encourage you to go through one of their drive-through centers. These drive-through centers are an initial estimate place only.

They will not take off a bumper cover or look at any underneath damage. At this point, vehicle damage requiring thousands of dollars in repair costs will only have an exterior walk around estimate of perhaps $500 or $600. The insurance company will issue you a check for their initial estimate of the repairs and send you on your way.

Next, take your car to the body shop of your choosing to have that body shop do a comprehensive break­down of the damages to your vehicle by taking off the bumper covers, assessing the damage to the frame of your car, etc.

The body shop will then communicate with the at-fault driver’s insurance company to receive addition­al work orders called supplements to cover the repair costs for the additional damages found that were not accounted for in the initial estimate. So, even if you have the $500 check from the insurance company, our best advice is to keep that check without cashing it so that you can transfer that check to the body shop when they finish repairing your vehicle.

When your case is evaluated by an injury adjuster, that adjuster uses several criteria in deciding how much mon­ey to offer in settlement, including the amount of damage your vehicle sustained in the crash. If the repair costs for your vehicle were relatively small, the adjuster will claim that the impact was minor and could not have been the cause of your injuries.

This alone is a good reason to have your car repaired rather than pocketing the initial check the insurance company gives you (the walk around estimate).

If you do not repair your car, and you only took a $500 check from the insurance company, they will likely infer that your car sustained only $500 worth of damage and that your collision was a very minor bump. Consequently, they will refuse to offer very much mon­ey to compensate you for your injuries. However, with supplements, the actual repair would cost thousands of dollars and no adjuster later on will claim that the impact was light. So, get your car fixed!

3. What If My Car is Totaled?
If your car is totaled in an automobile collision, it is the at-fault insurance company’s job to pay you the replace­ment value of your vehicle and to provide you with a basis as to how they determined that value. Insurance companies maintain data about the prices of vehicles sold in a particular market. They will often determine the value of your vehicle and then make an initial offer that is less than what they actually have available to pay you. For example, the insurance company may make an initial offer of $5,000 when they have $5,500 available.

Oftentimes, the best two-tier attack in response to any offer extended by the insurance company on a total loss is to ask them to (1) send you the written market evaluation that they undertook to arrive at their figures, and (2) after reviewing their documentation, make a counter-offer on the high side of what their own market data shows as comparable vehicle values.

Don’t forget that work vehicles such as limousines or certain types of work trucks are also revenue producers for you. If your work vehicle was totaled, one of the additional issues that needs to be considered is the valuation of the out-of-service costs to you. The insurance company is responsible for paying those as well.

Lastly, there is nothing that requires you to simply accept what the at-fault insurance company is offering for your vehicle.

If you have full coverage on your vehicle, you can ask your own insurance company to simultane­ously evaluate the value of your vehicle. If you select your insurance company’s higher offer for your vehicle, your insurance company will turn around and go after the at-fault driver’s insurance company for the amount you received for your car. Often, the only difference is that your insurance company will pay you the value of your vehicle minus the de­ductible you owe ($500 or $1,000).

Sometimes, your insurance company will waive the deductible because that amount is easily recoverable from the at-fault driver’s insurance company. Otherwise, tell the at-fault driver’s insurance adjuster that you have decided to go with your own insurance company’s offer and request that they issue you a check for the amount of your deductible.

4. I Can’t Work. Can I Receive Lost Wages?
Regularly, injured folks miss days or even weeks of work after a car crash and are never compensated for their lost wages.

While it is still fresh in your doctor’s or nurse’s mind, ask them to write you a note retroactive to the date you first saw him/her following the crash that addresses your work restrictions. If your job involves heavy labor and your doctor wants you to limit your lifting activities, this would be an excellent time for you to secure a note from the doctor that specifically addresses your work restrictions and how long those restrictions must last. This note will be extremely useful six months or a year later when your attorney is trying to convince the at-fault driver’s insurance company that you lost wages because of the crash.

5. Who Will Pay for My Medical Care?
If you are injured and need medical care, there are several sources that you can utilize to pay for your treatment.

If you have car insurance, Colorado has compulsory Medpay that will cover up to $5,000 or more of your med­ical bills. If you were in someone else’s vehicle, their Medpay and the Medpay from your own auto policy can be stacked for double coverage. In Colorado insurance companies are required to offer medpay but individuals can choose to decline that coverage.

Generally, every Colorado insurance policy will have at least $5,000 worth of avail­able Medpay coverage. Think of Medpay as free money because you do not need to pay your insurance company back after utilizing these benefits.

You simply need to ask your insurance company to pay your bills by sending them the invoices from your medical providers, or by setting up a direct payment plan with the doctor’s office. It is important to know that using your Medpay benefits does not increase your monthly premiums.

In addition to Medpay, most Colorado residents have health insurance. Some health insurance companies will attempt to mislead you by telling you that your health insurance is not available to pay for auto-related injuries.

Health insurance is, in fact, responsible to pay.

Before July of 2003, Colorado had no-fault benefits available that functioned as the primary payer source for the first $100,000 of any person’s auto accident related medical care.

However, since Colorado changed from a “no-fault” system to a “fault” (tort-based) system nearly 11 years ago, health insurance providers simply need to be reminded that there is no law in Colorado that would subordinate their obligation to promptly pay auto accident related medical expenses. Very often, one of the first letters we send on behalf of our client is to the health in­surance company informing them to update their knowledge of current Colorado law. You should expect your health insurance to pay your medical benefits excluding your regular copays and deductibles.

Additionally, you should consider saving your Medpay as much as possible to reimburse yourself for out-of-pocket expenses such as pharmaceutical co-pays, deductibles, etc. A quick conversation with any attorney in my office will inform you as to why exactly that may be of benefit to you and your wallet.

6. But I Don’t Have Health Insurance! What Do I Do?
If you do not have health insurance to pay for your care, the worst thing you can do is simply go without care.

The good news, there are doctor offices and even finance companies that will agree to provide you with medical care today and wait until you resolve your case to get paid. The bad news is that these companies charge higher rates for care.

However, without care, it is virtually impossible to recover from your injuries and get a decent injury settlement. If you have been injured in an automobile collision and don’t have health insurance or Medpay, please call one of our attorneys ASAP so they can explain the details of medical financing.

7. What Kind of Doctor Should I See?
Some folks after an injury accident hire an attorney quickly so the attorney can refer them to a doctor.

There are many personal injury lawyers who will send you to their favorite doctors. This type of arrangement, while common, can have a detrimental impact on the outcome of your injury claim.

The problem is that the insurance companies get wise to that trick and are able to connect the dots between the doctors you see and the lawyer you hired. We believe the best way to keep a case clean is after you are released from urgent care or the emergen­cy room, you should follow-up with your family practice or primary care physician.

Family practice doctors are great for taking a whole cluster of symptoms and working with their patients to refer them to the proper special­ist or therapist. You should eagerly accept and follow up on referrals from your family practice doctor. Except under very unique circumstances (i.e. no health insurance), you should be leery of accepting attorney referrals to doctors, especially if you have health insurance or med pay.

Looking at the automobile case shows you how detailed and confusing a personal injury case can be. There are so many moving parts, it makes your head spin.

You are not alone. Personal Injury cases are frequent, and we can walk you through any case you may have. Check out these stats on the current state of injuries in the US.

Personal Injury Statistics in The United States

  • America has over 5.5 million car accidents annually resulting in 3 million injuries and 40,000 fatalities.

  • Construction accidents result in 300,000 personal injuries and 1,000 deaths each year.

  • Medical malpractice results in 98,000 deaths every year.

Types of Cases Filed in America

  • Of all cases filed, 52% are from car or truck accidents.

  • Another 15% are related to medical malpractice.

  • An additional 5% are for product liability.

A qualified personal injury attorney can help you evaluate the details of your situation so that you can determine if you have grounds for a claim.

How Much Can I Win in A Personal Injury Case?

The settlement potential for your claim is contingent upon factors such as:

  • How much work you missed as a direct result of the injury

  • How much your medical care is/will be in the future

  • What the long-term financial impacts of your injury are

Each situation is different, and the physical, emotional and financial ramifications will vary case by case. That is why working with an expert attorney can help you evaluate the potential compensation for your individual situation.

The money you receive is called compensatory damages and the damages awarded can include things like:

  • Medical care

  • Cost of future medical care

  • Current or future loss of wages

  • Compensation for pain and suffering

  • Compensation for mental and physical trauma

  • Loss of consortium

  • Loss of enjoyment

  • Disfigurement

  • Future care-taking expenses

For personal injuries, OSHA qualifies any formal admission to an in-patient service of a hospital or clinic as a serious injury required for hospitalization.

To that end, any injury sustained whereby the injured party has to be formally admitted to a clinic or hospital for treatment or care qualifies. So, situations where hospitalization was required are considered more severe, and therefore might warrant higher compensation.

Punitive Damages

Punitive damages refer to an amount of money meant to punish the responsible party for the actions they committed. This might apply, for example, to a situation where a doctor knowingly performed the wrong surgery, or where a car company knowingly sold faulty products.

The amount you can win is contingent upon who was at fault. In many cases, if you shared responsibility or fault, then the compensation potential decreases. Each state is different which is why working with an attorney about your case is in your best interest.

Comparative Negligence

Comparative negligence is used to determine the percentage of fault for each party, and by extension, the amount of compensation. In some states, if you were involved in—for example—a car accident and you were both at fault, then no damages can be awarded.

If you are injured, you have a responsibility to seek medical treatment immediately. If you do not, and your condition/injury worsens as a result, it will impede your claim.

Damages are typically awarded proportionate to the harm that you suffered or the potential harm you could suffer in the future. Damages are based on the physical severity of the injury, and how it impacts your quality of life.

Success Rates for Personal Injury Cases

Success rates mostly depend on two things: the negligence and provable duty of care that has been violated, and the quality of law representation the defending party has. While we cannot guarantee these success rates, or that your case will be awarded a settlement, these are the average success rates for each type of personal injury claim in the United States:

  • Motor vehicle incidents: 61% of plaintiffs receive compensation

  • Intentional negligence claims: 50% of plaintiffs are successful

  • Medical malpractice: 19% of plaintiffs are successful

Judges are more likely to believe the plaintiffs during a trial than juries are.

Finding the Right Personal Injury Attorney for Your Case

When it comes to finding the best personal injury lawyer for your case, you want to go with someone who has the experience to help you get the compensation that you deserve.

At Anderson Hemmat Law Firm, we offer free personal injury case evaluations for our clients. Give us a call today to speak with our team of personal injury lawyers in Colorado.

Any type of accident, any type of injury, we have you covered. Contact us today to begin working towards the compensation that you deserve.

Disclaimer: No attorney-client relationship is established by this document. This document contains general information only. Contact us for more information about how our experienced and qualified attorneys can help you.

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