By SARAH W. COLEGROVE & TODD E. BRIGGS
Recently, a cyclist that had been hit by a car contacted us. It appeared that the automobile driver had been at fault and that the cyclist had sustained some serious injuries. We agreed to help the cyclist pursue his claim against the driver, but, instead of retaining our firm, the cyclist attempted to represent himself. In his attempt to represent himself, he made many mistakes and reduced the value of his claim to practically nothing. A situation like this seems to come across our desks at least a few times a year, and it’s unfortunate because it doesn’t need to happen. We can only speculate why the cyclist chose to represent himself, but we have a sneaking suspicion that it was to save the cost of our fee. While it may seem self-serving that we recommend hiring an attorney when you are involved in an accident, in actuality it serves you by preventing you from saying or doing anything that might potentially torpedo your case and by maximizing the amount of your recovery.
Hiring Competent Counsel
Before anything is done, you need to hire competent counsel. Don’t be fooled by an attorney that states your case is worth “X dollars,” even before any investigation into your accident has begun. That figure is usually an extreme overstatement of the value of your case and done only to secure you as a client. Don’t let dollar signs cloud your judgment. If you do, you will most likely retain a less experienced attorney and end up disappointed at the ultimate outcome.
It is critical to retain an attorney that has a proven track record of success litigating cases in which Michigan No Fault Law governs the claim. We are serious when we state that the Michigan No Fault Law changes almost weekly. To determine whether a claim qualifies for non-economic damages involves the application of a very complex standard. Counsel for an injured party must understand all the subtleties and nuances of the no fault law, in order to effectively represent you. We also recommend that your attorney have cycling experience and experience representing athletes. You’d be surprised how often we’ve been able to successfully prevail on cases that have been turned down by other non-athlete attorneys.
Building the Case: The Investigation Phase
After you have hired an attorney, he or she will begin to build your case. During this Investigation Phase, your attorney will perform many tasks, including securing the police report and other documents, interviewing the police and witnesses, finding witnesses, getting statements, documenting the accident location, taking photographs, retaining evidence, locating the driver and vehicle owner, obtaining driving records, medical records and other expert opinions. Each accident is unique and this process can be complex and time consuming. It pays to be creative here. Attorneys with cycling experience have the advantage here, because he or she has invaluable insight into the scenarios and conditions faced on the road and the sort of injuries that would affect an athlete.
Presenting Your Claim to the Insurance Company
The second phase of the personal injury matter involves presenting your claim to the appropriate insurance company. This seems to be the place where the individuals representing themselves falter. The easiest way to make a bike injury claim “disappear” regardless of the severity of an injury or fault is by missing deadlines or a statute of limitation. The individual that I mentioned at the beginning of this article, failed to gather all the necessary evidence and documentation during the Investigation Phase to properly build his case, and then he presented his claim to the insurance company, with no plan or strategy. He also made admissions that he wasn’t required to make about the accident and his recovery that basically killed his case.
Each insurance company handles its claims differently. There are unique procedures, requirements and methods to dealing with the adjusters. The unrepresented individual is usually unaware that it is the adjuster’s job is to save money for their employer – the insurance company. To keep their jobs, earn bonuses and advance, the adjuster is under immense pressure to save the insurance company money. They save money by trying to settle your claim for the LEAST amount possible. When presenting your claim to the insurance company, it is best to have an attorney that can present your claim while using a proven strategy. The insurance company has a trained representative handing its case and so should you.
Negotiating Your Claim
Once your case has been presented to the insurance company, the negotiation phase begins. The No Fault Law has subtle nuances and each accident has facts and circumstance that are different. Your advocate can argue those subtleties as they apply to your accident, in order to settle your case without the necessity of filing a lawsuit. Many times, your representative is able to negotiate a settlement that is as good or better than what would be obtained after a lawsuit is filed. Many clients have the impression that an attorney is somehow selling them out, when a lawsuit is not filed immediately. In reality, though, if a case is properly built and negotiated, settling before filing a suit can save valuable time, money and aggravation. There are only a few circumstances when a suit should be filed without first trying to negotiate a settlement with the insurance company. Once the lawsuit is filed, you can almost guarantee that the case won’t be resolved for at least another year. That’s another year of waiting, wondering and worrying. Again, the longer the adjuster takes to the settle the case, the longer your settlement funds sit in a bank account earning interest for the insurance company. Negotiating with an insurance company is different than playing “Texas Hold-Em.” Adjusters are notorious for failing to cooperate or provide information without which you are unable to make an informed settlement. An insurance adjuster would much rather face an unrepresented individual than an experienced lawyer.
Litigating Your CaseThe last phase is litigation. If your case cannot be settled through negotiations with the insurance company, a lawsuit is filed with the court. Filing a lawsuit and demanding a jury trial at the right time can be a good tactical move that forces the insurance company to resolve your case. Also, depending on the county in which the lawsuit is filed, Judges and juries react to injured cyclists much differently. Attorneys can use this fact to their advantage.
Oftentimes, injured parties think they can handle all of the above steps up to the point of filing suit and then hire the attorney. This strategy usually backfires because the unrepresented individual doesn’t properly build the case and/or says or does something that irreparably damages the case. While most cases settle prior to trial, all of the elements and steps taken to build your case are critical and help determine the ultimate outcome of your case. Our best advice is to consult and hire an attorney immediately after an injury. Every statement you make once the accident occurs will be recorded and used against you. An old adage sums it up best - “The party who represents himself has a fool for a client and a jackass for an attorney.” Experienced attorneys are trained to be objective advocates. Don’t sell your case short. Put an experienced advocate in your corner so you can obtain the settlement you deserve. Also, remember to be patient and be wary of any immediate resolutions, because the entire process takes time.
Feel free to email us your questions and comments, and, as always, enjoy your ride and be safe!