When people are injured in an accident, they don’t think of filing suit fast enough. This for good reasons: they are often disoriented for days, sometimes even weeks. They experience shock, pain, trauma, absence from work (sometimes the prospect of losing their job), the whirlwind of the ER and sometimes surgery and medical decisions, a mountain of paperwork and more paperwork, maybe the Police. Their lives are thrown upside-down, their relatives are often involved and have to be taken care of, it’s a mess.
These bad situations are even complicated by the insurance system: insurance companies are not always rushing to their help, especially if their medical injuries are serious. More often than not, the opposing party’s insurer will either try to settle quickly to limit their liability, or stonewall and seek to delay any resolution of the case. Time works often in their favor, and they count on the victim’s lack of knowledge of the intricacies of our tort system to bring their liabilities to a minimum.
All too often, important accident documentation is not gathered, proper records not pulled out, proper filing not done, filing suit not done quick enough. All this plays against your claim if you are the injured victim.
Let’s establish clearly what has to be done and how this will work in your best interest.
Who will call you first?
The insurance company of the other driver is likely to be one of the first parties who talks to you after you talk with the Police. As mentioned above, they will seek to lower their liability and get your own insurance to pay for the harm caused to you.
If you haven’t already talked to a personal injury attorney, you have not been advised correctly. Lawyer up.
If you are not lawyered up, you may start making errors in your conversation with the other party’s insurance adjuster.
Second advice: Say the minimum, don’t admit fault.
Good evidence is fresh evidence
Having lots of good quality evidence and witness testimonies is crucial for your case, and there are several reasons to collect evidence and witnesses as soon as possible.
First: your memories will fade. Your recollection of the circumstances of the accident will become less and less precise. With time you become less able to place people and objects in their right places. It is not specific to you or to any injury you might have sustained. It is a fact that the more time passes by, the less precise the memories.
If he/she is any good, your personal injury attorney will debrief quickly on all the circumstances of the car accident. He/she will collect crucial information about the scene and the people who were present at the scene. He/she will get the Police report and compare the notes.
Your attorney will also call witnesses and read their testimonies in the Police report. If your case goes to court (instead of being settled quickly), these testimonies will help establish the correct sequence of events, the places, and various observations on the behavior of the driver allegedly at fault… as well as your own behavior.
Good evidence is fresh evidence.
Second: when you sustain injuries, photographic evidence will document them properly. Outside of any MRI and x-rays, apparent bruises, cuts, blood, swellings, etc will have to be photographed. The more you wait, the more your body will have repaired the damage, the less visible these observable contusions will show.
Again, if your case goes to trial, your attorney will be in a much better position to get you the compensation you deserve if he/she is able to present photo evidence of your injuries to the jury. An open gash paints a more dramatic picture than a healing scar. Even if the scar is for life, nothing beats exposed tissue, swelling and blood pooling to convince a jury of the traumatic nature of the accident.
Wait too long for filing suit… and the defense will exploit the weakness.
Attorney Mark Yonker of Tampa, FL states it this way:
“…why you should file a personal injury lawsuit as soon as you are able is to prevent a commonly used defense if you wait. If your lawsuit gets to trial and is heard by a jury, it is a normal tactic for the defending lawyer to create doubt by asking why it took you so long to file a lawsuit. They might argue that you waited so any evidence or potential witness testimony is not as fresh, and so you intentionally made it more difficult on the defendant’s ability to gather their own evidence and witnesses.” (Source: Why Personal Injury Cases Filed Early are Easier to Win – Modest Money)
He is absolutely right on the substance.
Insurance companies have shrewd and experienced lawyers on retainer. Claim adjusters are paid to limit the financial liability of their employer. You have no friends in court. The attorneys of the opposing party will do their best to make you look uncertain of your memories, and to diminish the perceived impact of your injuries with the jury.
Members of the jury might suspect you want to exploit the circumstances to get a big financial award, stop working and retire to Cancun where “you’ll sip mojitos a la playa”. That’s probably what they dream of, so they will project their dream on you… Nobody likes a gold digger.
As a result of these factors, your compensation could be substantially lower than what you would be entitled to, had you have the advice of a good personal injury attorney.
Filing suit: your attorney will act preemptively
Marc Yonker continues in this way:
“…Even if you cannot file a lawsuit as soon as you’d like, you can start the process by serving the defending party a personal injury complaint and an intention to file a lawsuit. This establishes very early on that the defendant was aware of your intentions and had fair notice to make their preparations…”
This is a preemptive move any good personal injury attorney will make. It puts the insurance company “on notice”, and pressures them into doing the right thing, i.e. making a compensation offer that’s not low-balling you.
This tactics also shows you were alarmed by the gravity of the accident, and its eventual consequences on your overall health and financial situation.
Lastly, as Marc Yonker underlines it, it is a fair move for the opposing party, the driver who hurt you. It gives them enough time to prepare their defense by collecting the same evidence and talking to the same witnesses.
Fairness is a key component of our justice system. When you serve the other party with your intention to sue, the defense counsel can’t argue that you tried to keep their client in the dark.
Keep peace by preparing war
At Hameroff Law Firm, we believe a strong settlement is often better than a trial. We recommend going to war however when the defense is playing hard ball in an obviously unfair way.
But to get you maximum compensation, your position has to be a position of strength. The sooner you act, the better we can prepare your case for the right settlement… or the right trial outcome.
If you are victim of a car accident, don’t delay: call the Hameroff Law Firm at (520) 792-4700 to describe the basics of the situation and meet with an experienced personal injury attorney.
If you are not from Tucson, and just got into a car accident in the Tucson metro area, know that we understand the situation you are in, and will take care of you the proper way. We will take care of everything needed to minimize the impact of this unfortunate event on your daily life.
About the authors:
The Hameroff Law Firm has defended victims of car accidents or trucking accidents for over 20 years in Tucson and neighboring cities (Vail, Marana, Oro Valley, Green Valley, etc). We specialize in personal injury law.