Ask the Attorney: Smith Jordan Attorneys at Law Answer Your Questions
Raymond, please describe the nature of personal injury law.
At its heart, the personal injury law involves someone being injured because of another person’s actions. There are three main elements in any successful personal injury claim whether it’s a car wreck, a slip, and fall, or other types of injuries:
- Someone is injured;
- The injury was caused by someone else; and
- There is insurance or some other source to pay for their damages.
If someone is just negligent you can’t recover. For example, if someone drives down the road drunk, but they don’t injure anyone or destroy any property that’s not a case because there is no injury even though the driver was acting negligently. If you are walking into your house and trip over something you put there and are injured there’s no case because the injury was not caused by someone else’s negligence. Even if you have an injury caused by someone else there may not be any insurance or assets from which to recover. Most normal people don’t have the assets to where you could actually collect if you won a judgment against them so that’s why you normally have to look for insurance coverage.
What are a few of the biggest mistakes people who are injured by someone else make in regard to personal injury compensation?
The two biggest mistakes we see deal with treatment and with trying to handle a case on their own. First, a person will get badly injured, but they hope it will go away and they fail to get medical treatment and the problems keep getting worse. They wait until several months have gone by, or until the pain is too great, and then there is a huge gap between when the injury occurred and their treatment. Another mistake people will make with their treatment, is they go and get treatment, but fail to comply with the doctor’s instructions so they have a bad injury and after a while, the doctor just throws up their hands and discharges them because they’ve got this problem but they aren’t compliant and months later, the person still has their injuries because they didn’t follow through with their treatment, and the insurance company says the person wasn’t really hurt or else they would have listened to their doctor. The second big mistake that we see is that people will have a severe injury and the insurance company for the other party gets to them quickly and convinces them to settle. They’ll sign a release and settle their case for way less than their damages. Then they keep having problems with their injuries, but since they signed a release, it’s too late to get their medical bills paid.
If someone meets all three criteria discussed above and has a legitimate case how should it proceed from the attorney’s standpoint?
They would set up an appointment, or firms like ours will go to them, or meet via video or telephone and explain the process, and answer any questions they may have. They should make sure that they are getting all of the medical treatment they need. While they’re getting treated, the attorney handles the necessary background work. This consists of background checks on the individual who caused their injury and if it’s a car accident ordering the driving records of the other party. If the case has any special circumstances, like a DUI wreck, then the attorney gets additional records about that. The attorney also orders all the medical records related to the case. As the client finishes treating with each provider, the attorney orders those records. You try to get as much background work and order as many medical records as you can so when the injured party finishes treatment you can get their final records and put that into a demand package. The demand package is sent to the insurance company and the company will make an offer and at that point, you discuss it with the client. Usually, some negotiations follow, and you get to a top offer. The attorney will take the top offer to the client and explain what the insurance company is willing to pay and explain what the client will get in their pocket after all their medical bills and attorney fees are paid. The attorney should explain all the factors to consider, give the client their opinion as to what the client should do, and answer any questions that the client may have. Then you let the client decide whether or not they want to settle or take the case to court. The decision of whether or not to settle should only be made by the injured party.
Do some victims have unrealistic expectations of settlements?
The vast majority of people are genuinely injured, suffering, and want relief. They realize they are not being treated fairly by the insurance company so that’s why they’ve hired an attorney. Every now and then you get someone who feels like they’ve got a case that is going to settle for a lot more than what other similar cases have settled for. It’s understandable as it’s hard to be objective when you’ve had something bad happen to you as an injury. That’s why one of an attorney’s most important jobs is to look at the totality of their case and explain the strengths and weaknesses to the client so they can make an informed decision. This means looking at the medical side of the case, such as the medical records, their injuries, what they were diagnosed with, what type of treatment they received, how long they treated, and how long their problems lasted. It also means looking at other factors that can affect value like how the injury happened, how people will present as witnesses, and whether or not there are any issues like drinking or drugs. Once you walk a client through all these factors, they normally understand and have more realistic expectations.
If someone is in the hospital, rehab, or unable to act on their own behalf what would recommend their loved ones, or representatives do on their behalf?
The first thing is that something really bad has happened and you need to make sure you are with them and taking care of them. Dealing with the insurance company can be taken care of after the fact. Just don’t sign anything, or agree to anything with an insurance company, or give recorded statements. Then, meet with your attorney as quickly as you can. Insurance companies are quick to wave a release and settlement check in someone’s face and pressure them to sign it when they’re not in any state of mind to do so. For example, I remember one case where a young woman over the age of 18 was in a coma after a horrible wreck and the insurance company was trying to get her Dad to sign a release while she was unconscious. Don’t agree to any of that stuff. In South Carolina, you have three years to file suit if it’s a private entity and two years if it’s a governmental entity, so it’s not like anything has to happen that day.
What’s the typical timeline for someone facing a personal injury caused by someone else?
The timeline is mostly dependent upon how much treatment they need. If possible, you want to wait until a person finishes treating before settling a case. It normally takes a month or two after someone finishes treating to get their final records in and send out their demand package to the insurance company, and the insurance company normally makes an offer within thirty days of receiving the demand. Some people may treat for a couple of months, have a good recovery, and have an offer on their case within 3-4 months of getting hurt. On the other end of the spectrum, some people might treat conservatively for a long time, but end up needing surgery, which can take a lot longer. It is very dependent upon what type of treatment the injured person needs.
So who is paying attorney fees during this time?
Our firm does not charge an upfront fee. Our fee is based on what we recover so whether the case settles after a few months or a few years, or we go all the way to a jury verdict the client doesn’t owe us anything and we take our fee out of the recovery.
What is your approach to these victims who are in pain and in great need?
We always want to meet with people and talk with them about what has happened and their specific case. Once the client understands the process, we want them to focus on getting better while we focus on their case. Communication needs to be regular and ongoing throughout the process. We try not to overwhelm the client with information, but we also want them to stay in the loop.
We aren’t some face on a billboard that you never meet with personally. Our office is local and you can meet or connect with the attorney handling your case at any time. We never settle a case without the client’s approval. We don’t have a client sign over a power of attorney that says we can settle their case or deposit their settlement checks without their input. The client will talk to the attorney handling their case personally and will know what to expect and get an honest opinion and counsel on what they should do.
We try to help the client understand everything that is going on and what to expect.
Are there any myths in personal injury law that you have noticed over the years?
I think the biggest myth is that most people who pursue a personal injury claim are just trying to get rich off of nothing. The vast vast majority of people who come in are genuinely hurt- they don’t want to sue anybody and they don’t want to get involved in the legal system. They just want to be treated fairly and won’t let the insurance company take advantage of them.
We offer hope to these folks, and we also make their lives a lot easier. The legal system creates a sense of stress even when someone is represented. I can’t imagine someone completely unfamiliar with the legal system trying to deal with it by themselves because we are handling everything for them, walking them through the process. Imagine how overwhelming it would be to walk through a case by yourself. One of the biggest problems an unrepresented person has is not knowing whether what an insurance adjuster is telling them is true or not. They don’t have any experience and are at a decided disadvantage throughout the whole process without experienced legal counsel.
Raymond T. Wooten
1810 E. Main St.
Post Office Box 1207
Easley, South Carolina 29641