QuestionQUESTION: i was hit from behind sitting at a red light it has been 2 years (i havent had the best representation i am seeing that now) initially the claim was for $25,000.00 that is why i went with this attorney NOW today i was offered $9,000.00 and my attorney is OK with that says i should take it I on the other hand want to go to court now
RE CAP of accident the other driver was speeding hit my without applying brakes i hit the car in front of me and so on one for a total of 4 cars my car ended up under the car in front of me HOW I WASNT HURT OR KILLED IS A MYSTERY i wasnt seriously injured soft tissue mostly but i did suffer from glass in my scalp for weeks and back and forth to physical therapy which i only stopped cause my own health insurance only allowed so many weeks of it
not to mention i could NOT pick up my head with out using my hands to lift it for about 2 weeks
NOW I am not asking for a large settlement but i do believe i should walk away with some cash in pocket seeing as how i will be responsible for paying back my own insurance company IF i get a any money for this accident
SO getting back to my attorney he started me off with asking for $25,000.00 after I pay for the car i had to buy which by the way is used and compact nothing extravagant - my old car was PAID IN FULL not too long before it was totaled - so the new (used) car compensating my insurance company for medical services then add the couple weeks i missed work well i might end up with $10,000 cash
IS THAT UNREASONABLE to expect that amount in a settlement
(considering all the pain and trouble i went through for a while and the car payment i have now again I dont think it is too much to ask for for my personal mending-- I am not trying to gouge anyone I am being very resonable)
O did i mention the man that hit me was driving a company truck soooooooooooooooooooooooooo i am sure the vehicle was generously insured please write back I have a court date of Jan 15 i am not sure if i should take what was just offered or take it to court I WANT TO GO TO COURT i need some other opinions THANKS TONS
ANSWER: Hi dr,
Dr. Settlement has faced personal injury trials where I have forced a settlement on my client. Hopefully that was in the best interests of the client since the risks of trial were high. But I must confess that I probably forced a settlement now and then just because I was not truly prepared for trial. That is what it sounds like here. Hence, since I have done this, I am going to give you an hour and a half of my time so you can get some information of value to guide you.
Most of what I say here is based upon the belief that you stuck your head. I draw that conclusion because of the high impact, the glass imbedded in your scalp, and the fact you could not move your head without picking it up with your hands. THAT HEAD INJURY is the major value of your claim, IF it was treated properly. It is not too late, but a new attorney will have to find you a good neuropsychologist.
The WEAK part of your case is that you quit treatment. Your excuse is a weak one. If you were truly hurt, you would have used your own auto insurance or arbitrated the health insurance denial of service. Your attorney should have helped you with this. And if you did not hit your head, and if the only medicals you have are these physical therapy treatments, then your claim is probably not valued at much more than $10K to $14K. Why?
http://www.settlementcentral.com/page0045.htm "No Medicine - No Money" That is the quotation that is generally tossed around the insurance adjusting trade. What it means is that the amount of money paid for a general damages award in injury cases depends upon the quality and quantity of medical care necessary. If you want to be a stoic hero, you will not receive the same award that will be given to those who obtain reasonable and necessary medical care.
You are not entitled to any compensation for the hassles surrounding your having to get a new car. It is irrelevant whether or not your car was paid off or if you owed money on it, or if you loved it better than any car you ever had. All you are entitled to is the actual cash value of your car, plus improvements that added to the value, plus taxes and license fees.
I am going to give you a five part answer.
#1 is attorney economics, so you can understand what is happening at your attorney's end.
#2 is information on post-concussive syndrome, so you can see whether or not your doctors and attorney ignored symptoms that you have suffered. AND, so you can consider getting help from a neuropsychologist or temporomandibular specialist.
#3 is to send your attorney a letter instructing him in writing (e-mail is OK) that you will not accept anything less than $10,000 IN YOUR POCKET, AFTER ALL BILLS ARE PAID AND HIS FEES ARE PAID. If he cannot achieve that, then he must go to trial, as his contract promises to represent you. If he does not wish to go to trial, you will authorize a continuance of the trial and substitution of attorneys. But he will have to compromise his fees in order to attract an attorney to the case at this late date.
#4 is to seek new counsel ASAP and basically tell your attorney the same thing. #5 is what should you do about the offer?
Ready, dr? OK, here we go.
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#1 is attorney economics; understand what is happening at your attorney's end.
I feel for you because we have seen a lot of my attorney colleagues—and maybe even myself—who have let soft tissue cases lag behind in the office, not receiving the attention they need, and all of a sudden a trial is facing us and we are TOTALLY UNPREPARED. Of course I have no way of knowing whether or not this is true in your case, but I have seen personal injury attorneys do this often enough to know that it is COMMON.
It is a combination of office economics and personal habits. We attorneys give attention to larger cases that will produce the income necessary to run the office, and these smaller cases we hope will settle out WITHOUT a lot of work, so that we can make some money on them. If we have to try a case worth less than $18,000, we will likely end up with a lot less income per hour than we normally get. That is because we have to go through the interrogatories and depositions on both sides and prepare for trial and then to go through trial, with all of its preparations, etc. By the time one goes through all of that, the minimum number of hours is going to be 60 hours of attorney time and 100 hours of staff time for all of the work from first interview to the end of a three day jury trial.
If all we get is a fee of just $6,000, then that is only $100 an hour for the attorney time, and NOTHING at all for the staff time. At that rate, we cannot even pay overhead. This is WHY your attorney is going to push hard to make you settle.
Hence, in human nature, we kind of set aside a claim such as yours, thinking that it will settle out. But if the insurer will not play ball, then we have to lean on the client to induce a settlement. Take it from someone who has been there and done that to my clients. Invariably, the case that we let go, that we do not prepare for trial, is the one that will not settle, and we are left in the untenable position of not being ready for trial.
Here is my guess: I bet your attorney has not sent out a good set of interrogatories. I bet your attorney has not deposed the witnesses on the other side, including their doctor. I bet your attorney has not had conferences at the offices of your own doctors. I bet that your attorney has not had office conferences with your witnesses to prepare them. In short, I bet that your attorney is nowhere near ready for trial. That is why he is pushing so hard for a settlement.
WELL, ATTORNEY ECONOMICS 101 here for you dr: use your attorney's unpreparedness to your advantage by making him obtain a continuance and eliminating or compromising his fees. To do this, you have to make him face the choice of taking you to trial, or taking the easy way out and transferring your case with no fees owing for his efforts.
Let me ask you some questions, dr. did your attorney work to get you some specialists to help you? Did he review your medical records in detail with you to see if the doctor was writing down everything that she told you? Do you still have some symptoms that you did not have before the accident? Is your body completely healed up and able to perform as it was before the accident?
I think that with a HUGE CRASH that you suffered, one would normally expect to see a lot more lasting injuries than would be compensated for by a mere $9,000. I do not have any facts to go on here, but based upon thirty years as a front line personal injury attorney Doctor Settlement knows insurance claims and medical problems. And it is my guess that your body suffered a lot more trauma than $9,000 would compensate. But then, you did not give me any facts to go on, and, as I say, if you did not have a head concussion and if all you have is a handful of PT treatments, then they are probably within the bottom boundary of the ballpark with their offer.
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#2 is information on post-concussive syndrome, so you can see whether or not your doctors and attorney ignored symptoms that you have suffered. AND, so you can consider getting help from a neuropsychologist or temporomandibular specialist.
NEW TOPICS: BRAIN INJURIES AND TMJ
First off, as I explained, I am guessing that you hit your head based upon what you said to me. How hard did you hit your head? It sounds like a pretty hard whack. So, let’s first address that topic of the most significant potential injury, your "traumatic brain injury". Research that term, and especially post concussive syndrome and you will see some of the symptoms of that condition. If you did hit your head in a hard crash that that, then my bet is that you DID HAVE A MODERATE BRAIN INJURY. It is untreated for two reasons.
First off, you most likely denied any loss of consciousness, right? Second, if there is no loss of consciousness and no complaints of the symptoms of brain injury, most doctors who are called upon to treat injuries will not make referrals to have the patient tested for brain injury.
Let’s first examine what is a concussion and what is a loss of consciousness. You DID HAVE A CONCUSSION, that much is for sure, since you hit your head. So traumatic brain injury is in play in your claim since you suffered a brain concussion.
Post-concussion syndrome, also known as post-concussive syndrome or PCS, is a set of symptoms that a person may experience for weeks, months, or even years after a concussion, a mild form of traumatic brain injury. As many as 50% of patients who have experienced concussion have PCS, and some sources say as many as 90% of patients experience post concussion symptoms. People who have had concussions may experience physical, mental, or emotional symptoms. Symptoms can appear immediately or weeks to months after the initial injury.
Physical symptoms can include:
• headache
• dizziness
• impaired balance
• nausea and/or vomiting
• fatigue or sleepiness
• inability to sleep
• decreased libido
• sensitivity to noise or light
• ringing in the ears
• double or blurred vision
• decreased sense of taste, smell, or hearing
Emotional symptoms may include:
• irritability
• anxiety
• restlessness
• depression
• lack of emotion
• emotional lability or mood swings
• lack of ability to tolerate stress or alcohol
• aggression
Cognitive or mental symptoms can include:
• amnesia or difficulty remembering things
• confusion or impaired cognition
• impaired judgment
• slowed cognitive processing
• difficulty with abstract thinking
• difficulty concentrating
• decrease in work performance
• decrease in social skills
LOSS OF CONSCIOUSNESS—not essential to diagnosis of post concussive syndrome, but sometimes the length of time unconscious will be used to judge the degree of the brain injury.
The patient is typically the primary source who is asked the most significant question: Did you lose consciousness as a result of your injury? Most of my clients who actually later recalled that they did not remember moments just after being struck in the head, AT FIRST DENIED ANY LOSS OF CONSCIOUSNESS TO THE POLICE AND TO THE EMERGENCY ROOM.
WHY? First, most people equate loss of consciousness with being unconscious for some time. But in fact, “loss of consciousness” means loss of conscious awareness. Hence, loss of consciousness can range from being briefly dazed to several days of coma. In fact, in order for a brain injury victim to answer such a question, they would have to undergo extensive examination recollecting past events. Any change in mental state can be significant in understanding a patient's condition and if loss of memory (amnesia) occurred immediately before or after the trauma.
When you struck your head on something made of glass, probably there was a brief loss of consciousness. Even if you never before reported it, now is the time to correct your records with a letter to your doctor explaining that you DID have a brief loss of consciousness.
Loss of Consciousness http://www.settlementcentral.com/page0134.htm After Accident or Injury
How do you correct records with the medical providers and the insurance adjusters? http://www.settlementcentral.com/page7004.htm Letters to insurance claim adjuster. While this is designed for self help claims, your attorney could write the same letter, even at this late date. Better now than at trial. And of course if you get a new attorney, then there will be a continuance of the trial and time to treat with a specialist. Use your health and auto insurance to cover it.
This page talks about how to confirm conversations with the insurance adjuster
http://www.settlementcentral.com/page0460.htm with loss of consciousness notify the insurance adjuster as soon as you recall it. BUT in this case, I would wait a bit until you hire a new attorney to let her help with the decision of HOW to provide that updated information to the adjuster.
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TMJ—temporomandibular joint syndrome: possible source if you have any HEADACHES.
This is another term I want you to research. When an accident victim strikes her head, there is a good possibility that the disc in the condyle, or jaw joint disc, can be displaced. One of the consequences of jaw joint displacement is headaches. All too often in my practice, the doctors treated headaches as having originated from cervical problems, when in fact, they were due to a TMJ.
http://www.lectlaw.com/med/med04.htm
http://en.wikipedia.org/wiki/Temporomandibular_joint_disorder
http://www.tmjdoctorofmaryland.com/
There are two at-home ways to see if your jaw joint is moving. First, find the spot in front of the little lobes on the middle of your ears. These are called “tragus”: http://www.infovisual.info/03/048_en.html
Now, put your fingers just in front of the tragus and over the jaw joint and open and close your mouth. If the disc is far out of place, you will feel a click. Better is for someone to stand behind you as you are seated and perform the same test. That person can feel the click if your jaw joint disc is far out of place.
WHAT TO DO ABOUT REFERRALS: If you feel that you do have any of these symptoms and they are of some significance, I WOULD INSIST UPON TREATMENT for them ASAP. It is best to get your general practitioner to refer you, but you can self-refer if you have to. Your attorney can also be a source of information on good specialists. Here is what you would need: a neuropsychologist to test and to treat the mild brain injury. That is where the big mental help will come from, and of course that is where the BIG INSURANCE SETTLEMENT DOLLARS come from also.
As for the TMJ, a dentist who specializes in that field would be a lot better than an ordinary dentist. The TMJ specialist is adept at diagnosis and treatment, and of course, at making records that will help in making a good insurance settlement.
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#3 is to send your attorney a letter instructing him in writing (e-mail is OK) that you will not accept anything less than $8,000 IN YOUR POCKET, AFTER ALL BILLS ARE PAID AND HIS FEES ARE PAID. If he cannot achieve that, then he must go to trial, as his contract promises to represent you. If he does not wish to go to trial, you will authorize a continuance of the trial and substitution of attorneys. But he will have to compromise his fees in order to attract an attorney to the case at this late date.
You will send this letter ONLY if you did not hit your head, and your only treatments were those few PT treatments. Obviously, if you hit your head and have any of those symptoms, then your claim value is a whole lot higher, so you would never want to agree to such a low figure.
Anyway, such a letter would be expected to be an unwelcome piece of mail in his office, BUT it is a good exercise of your rights. If he calls and complains about having to make a huge compromise on his fees, then hit him with the fact that he is NOT PREPARED for trial. Ask to see the file to go over those items I listed above.
Use his unpreparedness and the coming trial to make him agree to fight subrogation claimed by your health insurer AND to compromise most of his fees. Make him agree to fight subrogation for you at no cost.
Sure, you may have a bummer of a case, but what was his responsibility when he found out that your health insurer cut you off? It should have been his job to find insurance for continued treatment or to make lien arrangements or somehow to DO SOMETHING, not just sit there idle. So to the extent he argues that you do not have value in your claim because of lack of treatment, then you hit him with the fact that he did not perform his job, as I just detailed.
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#4 is to seek new counsel ASAP and basically tell your attorney the same thing.
#5 is what should you do about the offer?
These two are tied together since what you should do first is to write that letter above, and second is to talk to another attorney. See if she would take on your claim if you could get your existing attorney to compromise his fees severely.
By the way, here is how it works with fees: you are supposed to pay only one attorney fee. The new attorney takes on the claim and you will pay just the one fee, usually around one-third. The two attorneys will divide that fee in accordance with the work performed and results obtained by each.
Mostly we always were able to agree when we took on a new client who wanted to fire her attorney. We did our part in the claim and we could work out something with the attorney who was fired. If they cannot work it out, there is a forum with the Bar association to help with fees.
Anyway, that new attorney WILL NOT take your case if you do not have a head injury and all you have is the handful of PT treatments. That is not enough in potential reward to merit getting all involved in a new case.
On the other hand, if you did hit your head, and if you do have any of the symptoms above, then you might be able to interest her in your claim. If she is interested, then you will have no more contact with your attorney.
Your new attorney will contact the present attorney and work something out to get the file quickly to look at and then to make arrangements for the new one to enter a notice of appearance and to get a continuance of the trial.
That wraps it up, dr. I trust that my extra time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
---------- FOLLOW-UP ----------
QUESTION: thanks for the response
i just wanted to add that i went to this law firm 2 years ago in that time the first guy retired GOT a second attorney something happened there and i got a third the one that is with me now was the fourth all that time i didnt have contact with them I would call from time to time and was put off due to "he is out he is retired she is no longer on your case everything is going ok " etc 3 months ago i was contacted by the current lawyer he was pleasant enough
BUT the firm did NOTHING to prepare him for this case and they never NEVER at any time advised me most importantly NEVER helped me with treatment that i needed I stopped my therapy because my own health insurance hit the total of visits allowed I exercise myself so figured i didnt need to go esp if i had to pay out of pocket and no one told me differently -- IF I HAD KNOW BETTER but i didnt
now i am aware that had the firm done its job SOMEONE would have advised me to continue going and they would have dealt with the bill (add it to the claim possibly) and you are so right I was not a complaining moaning whiner
I was stupid to believe they had my best interest at heart
My claim was mismanaged from the get go
i was told it was a $25,000.00 claim signed some papers and that was basically the last time i heard from them other than a few letters about nothing really and then 2 years and 3-4 attorneys later here i am basically wasting my time and theirs for a few bucks
I guess being honest and not a nuisance didnt pay off
a lesson i hope i never have the chance to use again (not under an accident circumstance)
NO I DIDNT HAVE A CONCUSSION as far as i know i dont even know if they checked but i was brought to the ER in an rescue squad and I AM GOING TO GET BACK IN TOUCH WITH THE HOSPITAL MYSELF since my lawyer didnt seem to feel the need
to do that either (well actually i think THINK he might have that info but i am not sure) and NO I have no intention i never did of over stating this claim but on the other hand i was NOT taken care of at all by this firm and i might have to write a complaint to the bar this was a total waste of my time but also i lacked care since i was not instructed to continue treatments Let me add i was 28 yrs old when this happened and in good physical condition I jumped out of my car the second i knew it wasnt moving anymore I WAS FREAKED OUT i just wanted to get out it happened so fast i didnt even know WHAT happened but my i knew my windows shattered all over me and i was basically under my steering wheel hate to even remember THAT ----------
the paramedics found me on the side of the road and were shocked I WAS THE PERSON THAT GOT OUT OF "THAT" car (they kept asking WHO was in THAT CAR ?
it was folded from the front and back
THANK YOU AGAIN i did consult 2 other lawyers
(family friends actually which i should have done in the first place I went with an old friend of my grandfathers i say OLD cause i am sure he had good intentions but lets just say he was probably better years ago ) after discussing this now and then with other attorneys and reading your response i see how foolish i was and naive O well thanks again
AnswerHello again, dr,
Thank you for the nice comments in feedback. That means a lot to me. Now, let me try to earn your good remarks with a new answer.
Stop beating yourself up about being foolish in picking an attorney and trusting an attorney. Your situation is not all that different from thousands of small personal injury claim victims whose cases have been neglected by people who call themselves personal injury attorneys. The economics of the legal practice causes us to focus on the money makers, and hope that claims like yours will resolve themselves.
Your problem is, what should you do now. Since you did not hit your head, and since you had just minimal treatments, any attorney is going to have a hard time getting anywhere near to the limits you have expressed. Hence, I would do two things.
First and foremost is to write that letter I outlined for you and do it today and get it delivered tomorrow. Make the attorney know that he is going to trial and he will suddenly start to compromise on his fees. Make him fight any subrogation from your health insurer. Tell him he can do whatever he wants with the claim so long as you receive $8,000 (or whatever amount is reasonable) in your pocket.
Next, include all of the potential malpractice or bar complaint items in your letter. These are as you set forth above. Tell how you continued to hurt, but no one from his office would return your calls to give any advice as how to get continued care. Did you not have your own auto insurance? That would have been the first place to look.
After you have sent that letter, go ahead and interview with a couple of attorneys to see if anyone wants to take on the claim. Chances are less than 20% IMO since there is a small pie to divide between two attorneys. Do not mention malpractice to these attorneys.
Do you have a good malpractice claim versus your attorney's office? Technically, yes. But actually, on the ground, the answer is that it is marginal at best. There is not a solid connection between their lack of interest in getting you more medicals and your continued suffering, or in your inability to attract a larger settlement offer.
Sure, I DO BELIEVE that they breached their duty of care toward you, but they could find an expert witness who would say that it is NOT the attorney's job to go and hunt up ways to continue with medical treatments. That is the client's job. All the attorney is hired for is to present the clam and to make as good a result as the facts permit.
Hence, even the malpractice liability would not be as clear as I think it is. Also, the next item, that of damages, is clouded. For example, who is to say that if you went to that next doctor or PT appointment that your condition would have changed much, if at all? In other words, they will say that your financial results would not have changed much at all even if you were authorized six more treatments. The result would still have been a small claim, worth less than $15K. Hence, there is not a sufficient element of damages to attract an attorney malpractice expert to take a look at your claim versus your present law offices.
Anyway, dr, DO MAKE THAT LETTER to your attorney and see if that will shake him up. Make it also an opportunity for him to continue the trial and to get you a working referral for a new attorney. Good luck with this, and keep a positive attitude toward your healing.
I trust that my time here has produced some information that has been of value to you, and thus I would respectfully request that you take the time to locate the FEEDBACK FORM on this site and leave some feedback for me.
Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
http://www.SettlementCentral.Com
