- posted: Feb. 09, 2022
I am writing this missive after receiving another call last week about a sliding door that came off its hinge, hitting the V (victim) on her head. The caller asked if I had ever handled a sliding door coming off its hinge case. I realized then that the average person thinks they must hire a lawyer that has handled the most obscure case, not realizing they are all alike. We deal with the same adjusters and insurance companies.
Everyone that has been in any kind of accident, Auto, Motorcycle, Slip and Fall, Truck, Dog Bite, Loose door, Train, Boat etc., wants to know what their case is worth. If a lawyer is honest with the client, s/he will say… it depends!
All Accident/PI cases require proof of Liability (Negligence or Who is at Fault) and Damages (money called Damages, for Pain and Suffering and Loss of Earnings). Who is at fault, or liability, is the first of the 2 part test requiring Liability and Damages to prove Negligence.
If you rear-end someone, I would think liability on the other party would be hard to prove. However, if someone rear ends you that is usually indicative of good liability. If you are rear ended and don’t seek med treatment, the damages are minimal and you would not expect to receive much, if any money, for your pain and suffering. Likewise if you rear-end someone, and then have major injuries such as a loss of limb or vision, the damages would be good. However, why should anyone pay you for an accident, you arguably caused.
A good case demands both Liability and Damages, and without both, lawyers usually reject a case. That does not mean there is no case, but rather that a lawyer doesn’t feel the value of the case is worth pursuing.
Another issue is the age of the V. The older the victim, the more likely the insurance company will deny and delay. This is because if the V passes before the case is settled, the heirs can only recover for the med bills and NOT pain and suffering.
In addition, if a V is rear ended, and delays seeing a doctor for 1-2 months, most PI lawyers would question the value of the case. Adjusters will argue the driver was not injured from the accident. If a month later the V started treatment, the defense would think or feel they could argue to a jury, that maybe the V slipped and fell in the shower and thought, “I was just in an accident 2 months ago, I will say it is from that?”
Of course you have to Prove whatever you allege. You can’t just say I have a Concussion or Post Traumatic Stress Disorder. It has to be diagnosed and treated. In addition, the claim must be filed within the Statute of Limitations. For an accident, it is 2 years (for an Oral Contract 2 years, a Written contract 4 years and 6 months for a Government claim). You can find Small Claims (up to $10k) forms at the Judicial Council Website: form SC100.
Many lawyers are cautious with an injury case, where the victim has been hurt by someone else’s negligence, had treatment for soft tissue injuries, but has been talking to the insurance adjuster. That is because your lawyer will never know what was said or what the adjuster THOUGHT s/he heard the V say. I had a case with one of my best friends who went to a doctor he chose, rather than one I suggested. The nurse, when reading the doctor’s notes, thought it said he fell from a horse and hit his head. The doctor would not change his report.
Accident cases are prime targets for manipulation and conjecture. How does a lawyer show that his client, who’s been in an accident, can’t do their job properly, and thus deserves thousands of dollars in compensation? Until now, lawyers have relied on doctors to observe someone for half an hour or so and give their, sometimes-biased opinion. Soon, they might also tap the wealth of quantifiable data provided by Fitness Trackers.
A law firm in Calgary is working on the first known personal injury case that will use activity data from a Fitbit to help show the effects of an accident on their client. Wearable devices could become a “black box” for the human body.
Case value depends on what, you ask? Well, cases have different values for many reasons. Is Liability clear? Are damages computable? Was the treatment consistent after the accident or were there delays or breaks in treatment? Was there a Loss of Earnings? The court’s jurisdiction is also a factor. For instance, a case in LA is worth more than a case in Riverside. This is because jury verdicts are higher in LA.