Severe car accident & injuries, unquestionable fault - get an attorney?
January 5, 2016 9:00 AM   Subscribe

I am helping a family friend who was in a severe car accident. She is not a native English speaker and has zero experience with lawyers. I have worked with them plenty in a business setting, but never around personal injury. There is no question of fault and she has injuries that will impact her for life. Should we try to negotiate with the insurance company ourselves and save the 30% fee an attorney would take?

She was driving car 2 in a 1 < 2 <<<<<-3 accident where car 1 and 2 were stopped in sudden traffic on the freeway and car 3 seemingly didn't slow at all. The police report clearly indicates driver 3 was at fault. Everyone has insurance, but we don't know how much liability coverage #3 has.

The accident occurred a few days before Christmas and she is still in the hospital with a burst fracture of the spine (no neurological deficits, thank god), plus severe wrist and leg breaks. She will have to go to an inpatient rehab center for an indeterminate amount of time after being discharged from the hospital in a week or two.

I have read that the general rule seems to be that if an attorney cannot increase the recovery by at least 50%, it is not worth it. Given that, should we try and negotiate without an attorney first? If driver 3 has the absurdly low Washington state liability minimum of $25k, clearly an attorney will be needed to get anything significant from the person themselves. But if the coverage is something more sane, like $250k+, if we could get them to pay the whole thing out, what would an attorney bring in return for the $75k+ they would earn?

Alternatively should we try to find someone who would work for a flat fee or hourly rate instead of contingency? There don't seem to be a lot of PI lawyers who will do this, though.
posted by pock_suppet to Law & Government (22 answers total) 2 users marked this as a favorite
Her insurance company has lawyers specifically for the purpose of going after all damages they can possibly get from the other driver. So does her health insurance, if she had that.

Talk to them before you get an outside lawyer (which is what an outside lawyer is going to tell you).
posted by Lyn Never at 9:09 AM on January 5, 2016 [1 favorite]

You need an attorney because having been in this situation (without the serious injuries, I'm so sorry for your friend) you display little/no knowledge of what a good or great attorney can do and how much care will be needed, and how much money that requires.

This is a very serious case you describe. Lawyer. Lawyer. Lawyer. Lawyer. Lawyer.

None of the insurance companies involved are on your friend's side (even her's) + there are too many complicating factor's. This is not navigable by a lay-person.

Best of luck and a speedy recovery to your friend.

PS - no bargain attorneys! You want someone really good. The settlement will be what your friend deserves + cover his fee. So so worth it!!!

Gosh, no. Not hourly. *shudders*

Contingency, only. Stat!
posted by jbenben at 9:12 AM on January 5, 2016 [12 favorites]

You want a good PI attorney. I was in this accident and thank goodness I got a decent settlement. NO insurance company is going to offer you what a good PI Attorney can get, even with her 33% contingency.

Keep ALL records, work missed, money spent on RX, hospital bills, doctor bills, etc. All of it. Sort in a binder and keep in a safe place.
posted by Ruthless Bunny at 9:20 AM on January 5, 2016 [3 favorites]

I used to work for a firm that handled PI cases and they were fairly formulaic. As a rule, total damages are a multiple of medical costs for subjective injuries added to medical costs and lost wages. The main advantage of an attorney is that you are likely to recover a higher multiple of special damages (up to perhaps 5x damages with 2x being a floor for a serious accident) and in cases where liability is not clear or where you will need to recover assets beyond the insurance policy. There may well be a sweet spot where the medical expenses are more than a third of the policy limits, fault is absolutely clear and the driver doesn't have sufficient personal assets to go after beyond their insurance policy. In that scenario, the insurer is going to settle for policy limits upon receipt of a reasonably well documented demand letter and you could keep the attorney's fees. But if you are mistaken, or if there is some contributory negligence by the third driver or any other weird situation, you run the risk of missing something big. To be honest, I'd personally get a PI attorney and my wife is an attorney in another practice area.
posted by Lame_username at 9:43 AM on January 5, 2016 [3 favorites]

All involved auto insurance companies will have attorneys working the case. Each of those attorneys will be working in their client's interests--the insurance company's interest--which means paying the least out of their own pockets, while meeting the contractual obligations to their insured. This can (but will not necessarily) leave the insured with expenses related to the accident which are left uncovered. This is why people injured in car accidents often get their own attorneys, either to press the insurance company of the at-fault driver for more compensation or to hold the at-fault driver personally responsible for some of the damages. The insurance company attorneys will and can press for the most coverage from other companies, but they may not always, as it may be more costly to the insurance company than settling the case. And they don't represent the injured--they represent the insurance company on behalf of the injured.

It gets complicated, sometimes. I've never done personal injury nor insurance defense cases (well, I did one insurance defense case on behalf of a community investment mortgage company but that's not a lot of experience) but I've got friends who do and wow, their cases are messy sometimes.

Personal injury attorneys in my jurisdiction almost exclusively work on contingency for a portion of the recovery because it is the best way for them to ensure they will be paid. (And they won't be paid in the event of no recovery.) Hourly is not generally affordable for the client in an insurance defense/personal injury case because that sort of litigation is lengthy and complicated and flat fee is not generally feasible for the attorney for the same reason.

Talking to an attorney and having them review the facts as you know them should not cost you anything. Talking to a couple of attorneys about it should give you a better sense of whether it's a good idea to bring in your own attorney.
posted by crush-onastick at 10:02 AM on January 5, 2016 [2 favorites]

I am an attorney who has worked on both sides, both personal injury plaintiff's work and insurance defense.

Sure, if you can get all the money you want without paying part of it to an attorney then that would be the best deal. But what if you can't?

When it is a minor case and/or you don't need the money then sure, go it alone if you like. But the higher value the case, the stronger the chance the adjuster or opposing counsel will play hardball and throw up all kinds of barriers to recovery rather than settling early for a substantial sum.There are so many potential pitfalls for unrepresented individuals--such as recorded statements, notice deadlines, improper denials of coverage, standard release language which releases all parties and therefore prevents recovery from your own UM/UIM policy, insufficient insurance funds to be shared among many injured parties, etc. Its a minefield.

In the end, if the risk of a smaller recovery or no recovery is preferable to paying for an attorney, that's your choice. Its a gamble.
posted by PlannedSpontaneity at 10:53 AM on January 5, 2016 [6 favorites]

having been through a similar scenario, I lost all confidence that any insurance company involved will do anything even approximately resembling the right thing. They pay off on minor accidents where the only real damage is property, and smile, because that helps their reputation as being a great insurance company to deal with. Start talking in hundreds of thousands, and a whole different songbook comes out.

Do some checking around. The best lawyers in this arena are not necessarily the ones who buy a lot of billboards, but they do need to have PI experience.
posted by randomkeystrike at 10:56 AM on January 5, 2016 [1 favorite]

In Washington state, if driver 3 was intoxicated or under the influence of drugs and someone died in the accident, this is felony manslaughter. It is not unusual for policies to have a clause allowing them to deny benefits based on the commission of a felony, even if driver 3 is never charged with a felony. This can mean that you will be dealing primarily with your own insurance or suing driver 3.

My understanding is that there are three people that can intercede on your behalf with your insurance company: your insurance broker, a public adjuster and a lawyer. Only a lawyer can pursue third party compensation. (In other words, your broker and a public adjuster can only advocate on your behalf with your insurance company and cannot talk to the insurance company for driver 3). Given the seriousness of the situation, if she has a broker of record, at a minimum, call them. Insurance companies take brokers and lawyers more seriously than customers and having help filing while hospitalized can make a difference.

I am not clear if public adjusters would handle a personal injury case. They seem to mostly handle property damage. Regardless, they are not likely to be the right answer in this situation. Lawyer seems to be the right call in this situation.

At a minimum, call and get a couple of free consultations with different lawyers. Most insurance companies do everything in their power to pay the minimum necessary. People with representation of some sort tend to get better compensation.
posted by Michele in California at 11:00 AM on January 5, 2016

I should add, when I say attorneys work for a portion of the recovery, I mean "the law generally provides for the person responsible to cover attorney costs for the injured person". It varies widely from jurisdiction to jurisdiction and is subject to lots of caveats, but when there is a recovery in an injury case because someone is determined to be at fault, the law generally permits the injured to recover the costs of their attorneys from the person who is at fault. (This is also the case in lots of other types of civil law suits, that if you win, you can recover all or most of what it cost you to pursue the case).

So, if I'm the attorney representing the inured person, and I convince the court that it's the other person's fault, the law allows me, the attorney, to submit an accounting of my costs, fees and normal hourly rate to the court, and the court will approve that accounting (or a portion thereof) and at-fault person (or their insurance company) pays that bill, not my client.
posted by crush-onastick at 11:18 AM on January 5, 2016 [1 favorite]

Another useful service your own attorney may provide is to negotiate down medical bills and subrogation claims under the made-whole doctrine or similar local law.

This helps in situations where you have, say, settled with the at-fault party for $100,000, but you also have 2 years of lost income at $100,000; unpaid medical bills of $50,000; and your medical insurance company asserts a subrogation claim of $150,000. In this situation, if you don't get the medical bills and subrogation claim negotiated down and settled for pennies on the dollar, then all of the settlement will go to medical bills and the subrogation claim, you will not be made whole (think of the $100,000 in lost income) and you will still owe big time money.
posted by PlannedSpontaneity at 11:24 AM on January 5, 2016 [1 favorite]

This is a very good case. Most people who complain about attorneys in car accident cases have bad cases. Most PI attorneys will salivate over this and divert attention to their new "big case" in order to get their portion. Also, the more cars involved the more you can get screwed. Car 1 may sue car 3, and have good lawyers. Then car 3 pays out all the money to car 1. None left for car 2. I HAVE SEEN THIS EXACT SCENARIO HAPPEN.

Get a good lawyer and don't wait.

(Source: I am a paralegal who used to work for a PI firm.)
posted by quincunx at 11:26 AM on January 5, 2016 [2 favorites]

Response by poster: No one died and the police report says the charge against driver 3 is "too fast for conditions". Of course all it lists for her injury is "Knee", so, well, yeah.

crush-onastick: How does that apply in the contingency case? Say it takes three days of negotiations to reach a settlements for 300k. The attorney gets 100k which is a heck of a lot more than their possible costs over a few days.

Quincunx, the point about car 1 suing is a great one, thanks for that.

We have a couple free consultations set up for later this week. I don't have anything against lawyers in general and I suspect the standard route is how we will end up going. I just think it is a shame for one to get 30% of a large settlement if all it takes is a few days. She's the one who has to live with a severely messed up body for another 20-30 years.
posted by pock_suppet at 11:43 AM on January 5, 2016

No one died and the police report says the charge against driver 3 is "too fast for conditions". Of course all it lists for her injury is "Knee", so, well, yeah.

The police report is extremely unlikely to include a BAC. People driving under the influence do not typically volunteer that information. They typically do all in their power to obfuscate it. It often comes out later in the form of medical records.

DUI is another common reason to deny a claim, though some states have laws which disallow this and some policies have language that is not defensible in court. So claims adjusting where the person was under the influence are particularly challenging. Even just determining whether or not they were legally intoxicated can be

I processed accident claims for over five years. What I am trying to suggest is that a) you do not know all the relevant details at this time b) law and insurance are both "the devil is in the details" type stuff.

You aren't paying for the theoretical few days work of the attorney. You are paying for their expertise. The question you need to ask is: will the attorney get you more money after paying them than you would get if you didn't hire them?
posted by Michele in California at 12:04 PM on January 5, 2016

Another thing to know is that contingency fees are generally negotiable. Maybe you can find someone you like who will agree to accept, say, 10% pre-litigation or pre-arbitration, 20% before 100 days before the first trial setting conference, and 30% after that.
posted by PlannedSpontaneity at 12:04 PM on January 5, 2016

I worked for PI lawyers once upon a life, and much of what you get from them isn't just trying to get the best settlement, but their handling all of the administrative and scut work - talking to the insurance agencies for you, gathering all the medical records (all the medical records, oh goodness they pile up), interviewing folks if necessary, pulling policy reports, etc. For what it's worth, that is a value add - you just have to decide if that's enough of a value add for you.
posted by joycehealy at 12:07 PM on January 5, 2016 [5 favorites]

Also, if they resolve it within a few days, that's a feature, not a bug. That's what you pay them for. Getting representation typically gets it resolved a) faster and b) for a larger amount of money.

I have seen stats for public adjuster cases showing that they get you more money and you get it faster, but not cases with legal representation. Unfortunately, I am failing to find a link with that info. But I did find this article:

How to Handle Your Own Car Accident Claim also kind of subtitled: The Eight Biggest Mistakes Victims Make

You do not want a system where you pay lawyers by the hour on this . That would be incentive to drag the case out rather than wrap it up quickly. Working on contingency for a percentage means their interests and their clients interests are aligned. They won't milk clients for hourly pay where they aren't fairly confident they can win big, they aren't going to drag the case out for their financial benefit, and if they lose you do not pay for the representation you got. This is why they get a relatively large cut: They put in a lot of hours without compensation before they get their cut and some clients do not pay at all.
posted by Michele in California at 12:24 PM on January 5, 2016 [2 favorites]

Lawyer up. If her injuries at serious 250k isn't going to be enough. She has lots of medical bills, permanent damage, loss of quality of life and missed work. That can become very expensive. What if she can't ever go back to work and ends up disability. A lawyer will help you recover waayyy more money than you can on your own.
posted by CosmicSeeker42 at 1:20 PM on January 5, 2016 [1 favorite]

It won't be settled in three days. Three years is more probable. Besides, it's the expertise you are paying for and a good PI lawyer is worth it. My sister was a passenger in an accident where both drivers were uninsured and drunk. Her lawyer sued HER insurance under the uninsured motorist provision. The max payout was $35,000. Her lawyer got $40,000. So $5k more than she was insured for.

It's worth it.
posted by Ruthless Bunny at 2:55 PM on January 5, 2016 [1 favorite]

Another benefit of having an attorney is the attorney client privilege. There isn't any friend-friend privilege--whetever your buddy is saying to you is discoverable by the other side.
posted by PlannedSpontaneity at 2:57 PM on January 5, 2016 [1 favorite]

"Say it takes three days of negotiations to reach a settlements for 300k."

I strongly urge you to talk with some folks dealing with from your friend's perspective, because you are woefully misunderstanding what's going on here.

Your friend is facing significant injuries and recovery. She/he may never be the same. This outcome won't be known for months. There is missed work. There is pain and suffering. There is PHYSICAL THERAPY COSTS. I can go on. This takes more than a few days.

Additionally, a good lawyer will push for medical care (ongoing physical therapy or pain management) that doctors might overlook or fail to alert your friend to seek as part of her settlement. Great PI attorneys have doctors they work with - your friend might need a second opinion.

The doctors at the hospital who dealt with the trauma crisis are only the beginning. Your friend has real medical needs you sound annoyed about. You are selling this friend short if you can't adjust your thinking. Sadly, this is a much bigger problem than you are currently imagining.

You don't have to believe me. Start talking to folks. The attorney will more than earn their fee and your friend will not be losing money or be out of pocket. Just the opposite, in fact.

Anyway. Money is the least of it. Great medical care is paramount. The attorney makes sure this happens at the insurance company's expense. As it should.
posted by jbenben at 4:14 PM on January 5, 2016 [2 favorites]

From what you described, your friend's medical bills are way over $250,000 already.
posted by yesster at 8:26 AM on January 6, 2016

Response by poster: We got a lawyer, a really good one. He (unprompted) actually echoed my thinking that this probably won't end up being much of a legal case. It is plainly obvious that this would be a 7-figure case if either she or the other driver had a very large policy, but she only has 100k and the other driver *probably* only has ~100k liability as well, so neither insurance company is likely to push back on paying out the full amount. Likewise, chances are that he does not have substantial assets that would make a personal suit worthwhile, as he would just bankrupt out of any significant settlement.

So, the attorney agreed to do the initial investigation for free. If the insurance companies do not agree to pay the full amounts of the policies, he will fight them for a flat fee of 3-5k because he "wouldn't want to take the money from someone who needs it so badly." If the investigation shows that the other driver carries an extremely large policy or has a ton of asserts, only then will he take on a full-fee lawsuit to try and collect. He seems like a really classy guy.

We also learned from him that she will get any money recovered before her medical insurance does, because she has a personal policy. Washington state's made whole doctrine essentially says that the injured party gets taken care of before the insurance gets any. There are exceptions to this in federal law when you have a policy thru the government or other very large employers, but she pays for her own policy independently.

This whole thing is making me re-evaluate my own insurance limits and has me considering an umbrella policy on top of that. God knows if I or my wife caused something like this we would want the other persons involved to get everything they need to heal.
posted by pock_suppet at 1:40 PM on January 11, 2016 [2 favorites]

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