Life can change in a split second. One moment you are driving to work, thinking about the day ahead, or walking through a grocery store aisle, and suddenly you are abrupt by the jolt of a car crash, a sudden fall on a slick floor or the niggling emotion of an injury in an unexpected place. Nobody contemplates legal action in the confused, sometimes painful, aftermath of an accident. Your priorities are understandably your health and your family's well-being. But unbeknownst to most of us, accidents, particularly those locally-made accidents or accidents caused by another person's negligence, can set off a chain of events that goes well beyond the scope of an emergency room.
The big question, as you navigate through this difficult physical and emotional landscape, is, do I need an accident claim lawyer? The term "accident claim lawyer" is distant and even frightening. All you can think about is yellow flashy courtroom battle scenes from daytime television or the aggressive advertisements on TV at night. Searching for an accident claim lawyer is much more nuanced. An accident claim lawyer should be thought of not as a lawyer poised to enter into a litigious battle, but rather as a trained guide- professional navigator for what could be one of the hardest journeys you may ever take. The job of an accident claim lawyer is to give you their expertise and ease any legal and administrative burdens, so you can focus on what matters most, your healing.
This guide aims to unravel the world of accident claim lawyers in the United States. We will explain what these lawyers do, when to hire one, how to find a lawyer for your situation, and what you can expect in the process. We seek to educate you, so knowledge ultimately replaces worry.
First, it is good to know "accident claim lawyer" is an umbrella term. Most of these types of lawyers focus on specific case types, which allows them to gain deep expertise. The related laws and processes can be significantly different depending on the case type.
This is likely the most common category. Car accident lawyers (or personal injury attorneys who practice all kinds of injury cases) will deal with collisions involving cars, trucks, motorcycles, and pedestrians. They know state traffic laws and insurance laws concerning accidents. They will know the specific and unique issues involved in proving fault in an accident, and complex issues that arise when the accident is with a multi-car pile-up, or involving commercial trucks with multiple insurance policies and even federal regulations.
A sub-area of car accident lawyers, but with much more complexity. Trucking companies and their insurers have enormous resources. Cases involving truck accidents often involve investigating driver logbooks to find any violation of hours of service rules, the truck maintenance record for the massive vehicle, and documents relating to how and if the cargo was loaded properly. A truck accident lawyer has the knowledge and expertise to obtain this evidence quickly before the evidence is simply "lost" or destroyed.
These types of cases arise when an individual is injured on someone else's property as a result of a dangerous condition. For example, a person slips and falls on a wet floor in a supermarket that did not have warning signs posted, or a broken step in an apartment building, or inadequate lighting in a parking garage. Often, the main legal issue in these cases is failure to act (negligence) - did the property owner know about and/or should have known about the unsafe condition and/or failed to act upon it? Slip and fall cases typically require diligence in investigation - obtaining photographs and witness statements, and relevant evidence of violations of safety codes.
Workplace accident law is a little bit of a legal maze. Most workplace injury claims are handled through a state workers compensation system, which is a no-fault insurance program that provides benefits no matter who caused the accident, but there are important exceptions. Workplace accident lawyers can help navigate the question of whether your case is a pure workers comp claim or if there may be a third-party liability claim, for example if you were injured by a defective piece of equipment that was manufactured by someone other than your employer, or if your injuries were sustained in a car accident while delivering for an employer.
Medical malpractice cases typically have the most complicated and challenging accident claims. The claims often arise from injury caused by the negligence of a healthcare professional - for example, errors in surgery, or misdiagnosis, or providing the wrong medication. These cases not only require legal knowledge, but also require a network of medical professionals who can review records and testify that medical care was substandard. To add to this, most states also have very strict, very short time limitations (statues of limitations) and some even require a "certificate of merit," which from the medical expert prior to filing a suit.
If you are injured by a defective or dangerously developed product - a bad airbag, malfunctioning appliance, contaminated medicine - a product liability lawyer can help. Some facts: product liability cases allege that manufacturers and sellers have a duty to sell safe products. Followed closely by class-action suits when several people are injured who have bought the same product.
While this is not an exhaustive list, it gets to an important point: the facts of your accident do matter. A lawyer who is the ideal lawyer for a plain and simple automobile fender bender may not be the right fit for a complicated medical error case.
One of the big surprises for many people is how much accident laws can vary from state to state. A what could be a straight forward case in California and a complete mess in Virginia based on simply different laws. Knowing this information is more than academic - it has real implications for the actual value of your claim and very likely outcome of your case.
Twelve states are classified as "no-fault" states: Florida, Hawaii, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Pennsylvania, and Utah. In these states, your insurance company pays for your own medical bills and lost wages, regardless of who is assigned fault for the accident, up to your own policy limits. The trade off is that you usually cannot bring a lawsuit against that other driver unless you can demonstrate that there is some "threshold" your injuries meet—the term thresholds typically relates to permanent injuries, significant disfigurements, or medical bills exceeding a particular amount.
The purpose of no-fault is to decrease the amount of litigation and expedite compensation. However, these requirements can be frustrating for people who have been seriously injured. I've had numerous interactions with clients who were shocked to learn that even with someone negligently breaking their leg in an accident—they could not bring a lawsuit against the driver, since their injuries did not meet the threshold for their state.
Even more impactful is the way in which a state determines the amounts of shared-basis fault. Most states work off some definition of "comparative negligence"—however the definitions that matter. Under a state's legislation, for example, California or New York, which are defined as "pure" comparative states, you can recover some amount of damages even if you were primarily responsible. If however, you sustain damages equal or close to what a jury may award for the full sheet of damages and you were held to be 80 percent responsible and the other driver was 20%, then your economically recoverable damages would be limited to $4000 (20 percent of the full sheet of $20000, for as example).
"Modified comparative negligence" states such as Texas and Illinois follow a "51% rule," meaning if you are more than 50% at fault, you will recover nothing. Other states may follow "50% rule" in which being exactly 50% at fault will bar recovery.
Then there are the holdout jurisdictions: Alabama, Maryland, North Carolina, Virginia and Washington D.C. which still follow "contributory negligence," a strict doctrine that allows any fault on your part—even 1%—to entirely bar recovery. Those states can often be the most difficult for folks injured in accidents.
Many states impose caps on certain types of damages, especially pain and suffering damages. California imposes a $250,000 cap on non-economic damages in medical malpractice cases; that limit has not changed since 1975 and is worth far less today in terms of buying power. Other states have higher caps, some states have caps that tie to inflation, and some have no caps at all.
These differences in law explain why a person injured in an accident with the same injury can receive a vastly different settlement depending on where the injury took place. For instance, a traumatic brain injury case that is worth $2 million in one state, may settle for half that amount in a state that has a statutory limit.
While your attorney will have an attorney's attention to detail and technical proficiency of the case, understanding how insurance companies think and operate will help to comprehensively turn your mind towards the decision-making process of your case. Insurance companies are not inherently bad, but they are businesses who need to answer to shareholders and derive profits as a result. Their main focus is to pay as little as possible and protect themselves from a bad faith lawsuit, while managing their reputation.
Phase One: Minimize and Delay
After an accident occurs, insurance adjusters are trained to do two things: get the insured to provide a recorded statement (they are hoping there will be some admission of fault or minimization of injuries) and offer a quick and low settlement before the injured party understands the extent of their damages. They are betting that as the financial pressure builds with medical bills and missed work the injured party will agree to the low offer and take less than they are entitled.
The delay tactic is also a calculated. With time, the facts will become harder to support because witnesses disappear, memories fade and the financial pressures build. For each month that goes by, the injured party becomes more likely to accept a lower settlement.
Phase Two: Dispute and Deflect
If the insured is not agreeable to the first settlement offered, most insurers move into the dispute phase. They will start to question the injuries and claim that they are possible pre-existing conditions or that the treatment is excessive. The insurer may hire private investigation to have video surveillance of the insured mowing their lawn (which the insurer can present as evidence that the insured is not injured) and they will ask to review years of medical records to find anything that they can use against you.
This dispute phase is carefully designed to wear the injured party down emotionally and financially. The insurers usually have teams of lawyers and unlimited time - you do not unless you have your own attorney.
Phase Three: Litigate and Intimidate
If a lawsuit is initiated, many insurance companies take a scorched earth approach, especially if the potential payment is significant, as they are anticipating the individual might receive $500,000 instead of $50,000. It's not uncommon for them to file multiple motions, take extensive depositions and employ expert witnesses to contest every element of your claim. The companies are not necessarily fighting to win at trial, they are fighting to force you to settle for less than you might otherwise recover just to make the process so costly and time-consuming.
Insurance companies follow metrics that most people ever see. For example, adjusters are often rated on their "settlement ratio"—the percentage of claims they close for less than the amount they set aside for the claim. They might earn bonuses for keeping payment outlays low at the expense of injured individuals and get reprimanded for being "generous" with their settlements.
This creates a system where the adjuster who is sitting on the other side of the table from your lawyer isn't thinking about "fairity", in other words, an adjuster maybe thinking about their job performance. This helps enlighten why negotiation with the insurer often feels less personal and why it is so important that you hire a lawyer who has experienced this dynamic.
While some very minor accidents could be handled without an attorney, attempting to handle a serious injury on your own often results in devastatingly unsatisfactory payments for you personally. Let me give you an example or two to illustrate why hiring a professional is important.
Sarah, a nurse in Ohio, was rear-ended at a stop light. It was obvious that the other driver was at fault and the other driver's insurance company accepted liability right away, with an adjuster who was helpful and experienced and who helped Sarah and informed Sarah that they wanted to "make this right."
Initially, Sarah had about $8,000 in medical bills, and had lost around $3,000 in wages because she had not worked for three weeks. The adjuster called and offered $15,000 to settle the case, which in the case was paying her bills and compensation for her pain and suffering. To Sarah, as more straightforward case, this sounded reasonable, and she was ready to accept the offer and get this accident behind her.
What Sarah did not appreciate and know was that while the pain was reversible, the pain in her lower back was actually a herniated disc and had surgery within six months. By the time she fully understood the further impact of her injuries, Sarah had already signed a release. She had surgery that cost $35,000, and a few months of physical therapy, and needed to ease her commitment to work for nearly an entire year.
When Sarah eventually sought out a lawyer, she was informed that she likely had a case worth at least $200,000. In the end, the $15,000 she thought was a generous offer, cost her more than $50,000 of her own money.
Michael, while being a small business owner in Texas, was injured when a restaurant, that was not properly maintained, had a ceiling fall on him. The situation seemed simple enough. It was clearly the restaurant's failure to maintain the management of its building. When Michael, after the injury, communicated with the restaurant's insurance company in settlement, the restaurant's insurance company immediately accepted liability.
What Michael did not expect about the restaurant was that there was one corporate owner, another corporate entity that managed the building and then another separate business operated the restaurant. Each of the three corporate entities had their own insurance, and that involved a complicated understanding of their lease agreement, contracts for maintenance, management etc.
The restaurant's insurer was happy to negotiate, knowing their exposure was limited, while the potentially more liable parties weren't even at the table. Michael spent eight months negotiating with the wrong insurance company. By the time he hired a lawyer and they identified all the responsible parties, key evidence had been lost, witnesses had moved, and one of the companies had filed for bankruptcy. A case that should have settled for $400,000 ended up settling for only $75,000.
Jennifer, a teacher from Florida, slipped and fell on a wet floor in her local grocery store and injured her knee and sore shoulder. The grocery store's insurance company asked to have her medical records. On the surface this seemed reasonable – they needed evidence that her injuries were caused in the fall.
What Jennifer did not realize was that by signing a very broad medical release she signed off on providing the insurance company with her entire medical history. The insurance company discovered that Jennifer had seen a chiropractor five years earlier for back pain related to a minor car accident and that at that time she had mentioned that when it was cold August it could make her knee "feel stiff."
The insurance company took these completely unrelated medical visits to conclude that Jennifer had pre-existing conditions and that her reported injuries from the Grocery Store's insured was not related to their negligence.
Medical Costs: This encompasses both your existing expenses, as well as future medical treatment. A skilled attorney will be in contact with medical professionals who will provide foresight into your ongoing treatment needs. If you have suffered a spinal cord injury, the lawyer will seek opinions from orthopedic specialists as to whether you will require further surgery, ongoing pain, or assistive devices.
Lost Income: This refers to lost pay in the form of paychecks, but also includes any pay you did not receive on account of you not being able to work overtime, accept additional tasks or responsibilities, or promotions and raises. Economists can calculate the present value of the reduced earning capacity for the remainder of your work life expentancy.
Life Care Planning: For serious, permanent injuries, attorneys will utilize life care planners (professionals that provide sufficient predictions of your future care needs). This could include home modifications for accessibility, ongoing attendant care, until care, accessible transportation, specialized equipment, etc.
General damages are intended to compensate for losses that do not have a particular dollar value but are nonetheless real.
Pain and Suffering: Pain and suffering includes all pain, both physical pain you sustained and emotional pain caused by the accident. Attorneys frequently utilize the "multiplier" method that includes estimating all economic damages, including measurable costs related to your injuries, and multiplying by a range (typically 1.5 - 5) based on the severity, and permanence of your injuries.
Loss of Enjoyment of Life: If the injuries you sustained prevent you from participating in activities you enjoyed prior to your injury (i.e. sports, travel, hobbies), you are entitled to compensation for that loss.
Loss of Consortium: This is compensation to the spouse of the injured party for loss of companionship, intimacy and support caused by the injuries sustained.
Injury and Impairment: If you have a visible scar, loss of limb, or other irreversible physical changes, your case certainly merits additional damages, particularly if the changes impede your ability to work in the occupation you are trained for and have worked in previously.
Beyond the legal formulas that you learn in law school, experienced attorneys know that human psychology will also play a major factor in valuing a case.
Appeal to Jury: Some cases simply pull on the heartstrings of juries more than others will. A school teacher who is injured by a drunk driver will be afforded more sympathy by a jury (and likely awarded more money) than a day trader in the same accident. While this is not legally relevant in a case, it's a practical reality in the negotiation between lawyers and the settlement process.
Quality of Medical Care: Consistent medical care from highly regarded providers will form a stronger medical record than sporadic visits to different doctors. Gaps in treatment will provide insurance companies with an opportunity to claim your injuries are not as severe as claimed.
Richness of Credibility Factors: How you present yourself to juries (and insurance companies) matters a great deal. Your demeanor, appearance, and background usually confer a level of credibility (or lack of credibility) to a jury. Your lawyer can help you present yourself, and your story, in the best possible manner.
Most cases will settle prior to trial, but helping you understand the litigation process only helps you make the best decision on any settlement offers and helps to create a level of expectations when the case is actually in litigation.
Smart attorneys will always look to leverage the prospect of litigation in negotiations with the insurance company well before there is a lawsuit filed. When an attorney sends a demand letter to the insurance company, they are not only sending a demand but also create an impression of what the strength of your case can become. This involves the claimant's medical records, expert opinions, witness statements, and a comprehensive statement outlining why the disputed covered party is liable and the justification for the amount claimed.
The important thing about this pre-litigation process is that this is usually your last opportunity to get the case settled without incurring the cost and time that usually comes with formal litigation. Insurance companies are fully aware that once a lawsuit is filed, their costs only go up—they will have to hire defense attorney(s), conduct discovery, and might have to face a jury trial when the time comes.
In the event settlement negotiations don't conclude a lawsuit, both sides enter the "discovery" phase, as part of a formal process to obtain evidence and information.
Interrogatories: Each side must answer a set of written questions posed by the other side under oath. Interrogatories usually cover all health histories pre-accident to the details of the circumstances surrounding the occurrence of the accident.
Depositions: This is a sworn and recorded interview to which the opposing attorney conducts seeking discovery. You will be asked detail oriented questions about (1) your background, (2) the accident, (3) your injuries, and how it has affected (is affecting) your life. Your attorney will prepare you for this experience.
Document Production: Your attorney, and their attorney, can request documents that they consider relevant to the case from the other side. Documents could be medical records, work-related files, insurance policies and any documents related to the subject issue.
Expert Witness Discovery: Both parties to nearly every case hire experts who provide opinions to support their case. Experts can range from specialists in accident reconstruction, primary care providers, vocational rehabilitation experts, or economists.
The vast majority of cases will settle sometime during or after discovery once each side has established an understanding of the evidence. The negotiation process can be viewed as the amalgamation of art and science.
Timing: An experienced attorney can tell when the right time is to make offers and when to hold back. Offers will come at settlement as the trial date gets closer, the insurance company is spending money preparing for trial, and they begin figuring out that what a jury will do, will not happen in your favor, or in their favor.
Leverage Points: The substantive strength of an expert witness report, or a really good sympathetic piece of evidence, or favorable ruling on a legal motion will really change things.
Mediation: Many courts require mediation before trial. Mediation is the process in which a neutral third-party helps the parties negotiate their case to settlement. Mediation gives both parties a chance to hear an honest assessment of the strengths and weaknesses of the case.
If the case does not settle, the case proceeds to trial. The trial is very costly, time consuming, and unpredictable for both sides.
Jury Selection: The attorney asks potential jurors questions in order to eliminate the jurors that may have bias against you, and select jurors that hopefully have sympathy for your case.
Opening Statement: This is the time for the attorney to tell your story to the jurors. The attorney will tell the jury what happened, why the defendant is responsible, and what you are entitled to for damages.
Presenting Evidence: Witnesses testifying, experts offering their opinions, exhibits offered into evidence. Depending on the case and complexity of the issues, this process could take days or weeks.
Closing Arguments: The parties get to summarize their cases, and ask the jury to find in their favor.
Jury Deliberation and Verdict: The jurors deliberate and privately decide how they will rule on liability, and damages.
Trials involve some risk for each party. Juries can be unpredictable outcomes, and even the strongest cases lead to disappointing verdicts from time to time. For this reason, most cases settle - it is better to have a known outcome than to gamble with a trial.
There are many capable and ethical accident lawyers, but there are signs that show you need to get a new lawyer.
Your lawyer should update you on significant developments regarding your case. If your lawyer hasn't contacted you in weeks, isn't returning calls within a reasonable time frame, or seems evasive by having staff communicate with you instead of him or her, these would be serious red flags. You have a right to know what is happening with your claim. If your lawyer is unable or unwilling to explain the process in a reasonable way, he or she is likely either very busy with other clients or they simple cannot handle representing you.
You do not want to delay - or reject - a reasonable settlement offer in your case. However, if your lawyer is pressuring you to accept the first settlement offer (without first thoroughly investigating your claim), that could signal they are not looking out for your best interests. This is especially disturbing if you have not yet reached maximum medical improvement or the long-term effects of your injuries are not yet known.
If you have a serious injury case, cases require significant upfront investment in expert witnesses, medical records, accident reconstruction costs, and other case development costs. If your lawyer or law firm seems reluctant to make these investments, then they may not be the right choice in the event you have a case that could be complex.
Beware of attorneys promising guaranteed outcomes or unreasonably large settlements. No competent attorney can give you an accurate prediction of how your case will end, and the Rules of Professional Conduct will not allow a lawyer to promise a result.
Some law firms operate more like personal injury factories with hundreds of cases and limited personal involvement in each matter. Signs of an injury mill include: all practice letters and contact being handled by paralegals or junior associates, rambling and formulaic settlement letters, timelines outlining settlement offers or the and pushing to settle without regard to the individual merits of the case.
The personal injury law landscape is changing rapidly. Changes in technology and changes in social attitudes about personal injury claims are likely to continue to reshape the landscape of personal injury and accident law. Understanding this current and evolving thinking will aid you in making informed decisions regarding your case.
Dash cams, security cameras, and even cell phone videos of the accident are reshaping the evidence in accident cases. Likewise, electronic medical records and telemedicine are changing the way injuries were documented and treated. Your attorney should know how to locate and preserve electronic evidence and, where applicable, cell phone records (to document distracted driving), GPS data (to demonstrate a point of origin, route, and destination), and social media posts (where relevant).
Litigation funding using a third party (outside funders providing money for the case which the plaintiff pays a portion of recovery) is becoming more common in more expensive personal injury cases. In some cases, you can access funds to help pay for financing complex litigation. However, it does require due diligence and investigation to determine the terms of the financing and how it impacts your recovery at the conclusion of the case.
Younger jurors often approach personal responsibility and corporate accountability—and the appropriate amount of damages—differently from generations past. Seasoned attorneys will adjust acceptable trial strategies based around these shifting values.
The insurance industry continues to consolidate. Larger companies buy out smaller companies. This consolidation can complicate negotiations, as the mega-insurers are more capable of resisting claims due to their volume of assets, while at the same time, mega-insurers may have more anxiety around establishing case precedent, or creating future challenges, that is; understanding the insurance defense industry, itself.
After reading this exhaustive guide, you should have a far more systematic understanding of whether you have a need for an accident attorney and what the process looks like overall. In the end, it typically comes down to three factors:
Severity of Injuries: The more serious your injuries, the more you need representation from someone that knows what they are doing. The complexity of the situation and the stakes are too high to deal with all the medical and legal issues without professional representation.
Disputes Over Fault in Original Accident: If fault is going to be contested at all, you need a lawyer. Insurance carriers will take advantage of any ambiguities you present in fault in order to minimize or deny your claim.
Insurance Company Responsiveness: If the negligent drivers insurance company is being reasonable and presenting fair offers, you are probably ok proceeding alone in a straightforward case. However, if they are denying fault, disputing your injuries, or making inadequate offers, you will definitely want some professional help.
Your level of comfort: Some individuals choose to negotiate on their behalf, and others may prefer an advocate to negotiate on their behalf. There is no right or wrong, just a matter of comfort level and confidence in your ability to obtain a fair resolution.
Financial considerations: The contingency fee retainer system means that you do not have to pay a lawyer up front, but you will want to understand how fees and costs will impact your net recovery.
Keep in mind that most reputable personal injury lawyers offer free consultations. You can obtain professional advice on your case, without cost or commitment. This consultation will all you to assess the strength of your case, realistic value or potential negotiation range of the case, and whether or not you will benefit from representation in your case.
An accident may have left you feeling disempowered - a victim of circumstance. Engaging an accident claim lawyer is not an endorsement of wanting to be litigious, but rather an engagement of reclaiming a feeling of agency. It is a logical, strategic step toward reclaiming a resource to assist you in reconstruction your life.
The preferred lawyer is not just the legal agent, they are your advocate, your advisor and someone anchored during a difficult time. They will dispute a case in all of the complex legal issues while you maintain focus on the personal recovery. By gathering solid information about what their role is, how they are contacted and directed through the process, and assistance to be properly positioned, you will not be restricted in your recovery and can proceed forward knowing your rights are respected and protected, and you actively have the confidence to trust your future in qualified, capable hands.
The journey from accident victim to resolution is never an easy one and the goal is not to travel it alone. With a trusted guide, the process can shift from an overwhelming challenge to a simple outlined process, with a path forward. The hope is not just compensation, but closure and the opportunity for life to continue somewhat restored.
Your accident may have changed your circumstances, but your circumstances do not need to define your future. With information and professional support, you can work through the ongoing challenges of this situation and emerge stronger. It may be difficult travel, but it is not an impossible one, and you do not need to travel it alone.