If you've been injured, you may wonder if you actually need a personal injury lawyer. You may wonder why you should share a significant portion of your recovery with a law firm, when you may be able to settle the case yourself and pocket all of the money.
Can you negotiate the resolution of your own case? Can you litigate your own personal injury lawsuit without using a lawyer? When should you hire a lawyer to assist you with your injury claim?
If you are injured by a person who does not have insurance, negotiating a claim can be difficult. Many people who lack insurance don't have money to pay a settlement and, of those that do, many won't want to pay their own money even if they know they are at fault. But if the person is insured, the insurance company has systems in place to settle cases.
Negotiating with an Insurance Company
In many personal injury cases, if you directly contact the insurance company which provides coverage to the person who caused your injury, you may be able to negotiate a settlement for your own claim. Sometimes you won't be able to identify the insurance company without commencing litigation, although in automobile accident cases the insurance company is usually identified on the traffic crash report prepared by the police.
You should be aware if you contact the insurance company that you will be speaking with an adjuster whose primary goal is to settle your case for the lowest possible amount of money. An insurance adjuster will attempt to obtain statements from you which may impair your ability to later litigate your case - and you should avoid making any such statements. The adjuster will also likely require that you document your injuries and claim, such that its value can be assessed.
No matter how friendly an insurance adjuster may act, the adjuster is not your friend. The adjuster will try to entice you to make the first offer of settlement for your case, for two primary reasons:
- If your settlement demand is unreasonably high, the adjuster may simply decide that negotiating with you is likely to be a waste of time.
- If your settlement demand is low, the adjuster may view it as an opportunity to quickly entice you into a settlement for significantly less than your case is worth.
You should anticipate that the adjuster will negotiate down from your initial offer. That is, once you state a figure, that is the greatest amount of money you should expect to receive by way of settlement. You are best served by making the adjuster make the first settlement offer, and negotiating up from that figure.
If the first offer is from the adjuster, that offer is probably no more than half of what the insurance company is prepared to pay to resolve your case. Many people feel good if they convince an adjuster to increase an offer by ten or fifteen percent, not realizing that the adjuster's target settlement might be 100% higher than the initial offer (and perhaps that the adjuster would settle for between two and three times the amount of that initial offer.) It is difficult for somebody who has no background in negotiating with insurance companies to get a good read of an adjuster's intentions.
If you are able to negotiate a settlement with the insurance adjuster, the adjuster will send you a copy of a release agreement to sign before the settlement will be paid. Insurance companies are notorious for drafting excessively broad release agreements, and if you sign such an agreement you may find that you lose valid claims and remedies against additional possible defendants, or that you cannot make a valid claim against the same defendant for an injury the defendant caused on a different occasion. Even if you are sure that you want to negotiate your own settlement, you should strongly consider hiring an attorney to review the insurance company's proposed settlement agreement before you sign it.
In rare occasions, an insurance adjuster will offer "policy limits" on a file. For example, where a plaintiff suffers severe injuries and a defendant has only a small insurance policy, the insurance adjuster may offer the "policy limit', meaning the maximum amount the insurance company is obligated to pay under the policy. Although it is a very good idea to consult with a lawyer about this type of offer before accepting it, as there may be other insurance available or you may ultimately wish to pursue the defendant's assets beyond the policy limits, in an appropriate case it will typically benefit you to obtain a "policy limits" settlement without having to share that amount with a lawyer.
Most of the time, if you negotiate directly with an insurance adjuster, the amount you recover will be substantially less than the amount an attorney can recover. This is primarily because the adjuster assumes that you don't know what your case is worth, won't be able to litigate your case without hiring a lawyer, and are going to think that it would be unreasonable to ask an adjuster to double or triple an initial offer, but instead will be ecstatic with a 10 - 25% increase in that offer. Most of the time the adjuster is right - and the insurance company profits at your expense.
Negotiating to Settle a Weak Case
There is an exceptional situation where you may find that negotiating your own claim is the best path to recovery. That is where there is a very strong legal defense to your claim, such that a lawyer is unlikely to file a lawsuit on your behalf.
Despite the strong defense, sometimes an insurance company will pay a small settlement or agree to pay medical bills on behalf of an injured person. This may be because their client doesn't want any bad publicity associated with their product - food manufacturers, for example, will sometimes pay the dental bills of people who suffer a broken tooth while eating their product, even though there was nothing wrong with the product. Sometimes it is because the cost of sending the claim to the legal department or to a law firm will exceed the amount of the medical bills or token settlement.
If the insurance company offers you money on a case that lawyers tell you has no value as a lawsuit, it may well be your best bet to "take the money and run".
Litigation is difficult, the rules of evidence are complex, and an insurance company will be hiring a professional defense firm to litigate against you. Even lawyers typically rely upon the assistance of counsel when they are plaintiffs or defendants in a lawsuit. If you try to litigate your own case, you can expect that the defense will use every trick in the book to try to get your case dismissed, regardless of its merits - and, as you are unlikely to know how to respond to those tricks, or to be intimately familiar with the governing law and court rules, they will often succeed.
They say that a person who represents himself has a fool for a client. If it is necessary to litigate your personal injury case, it is difficult to imagine a context where you would not benefit by retaining a lawyer to represent you. Litigation can also be very expensive, and more so if expert witness testimony is required. In personal injury cases the lawyer will almost always work on a contingency fee basis, meaning that the lawyer will bear all of the costs of the lawsuit.
Insurance companies are very good at convincing injury victims who represent themselves to accept inadequate settlements in resolution of their claims. Lawyers can often negotiate higher settlements for personal injury claims, even after their fees are deducted from the recovery.
If you get an offer from an insurance company that seems low, you can consult a personal injury lawyer for a reality check before you accept the settlement. You don't have to hire the lawyer, but you'll find out if the lawyer believes you can obtain a significantly higher recovery if you retain counsel or litigate your case.