Should You Pursue a Personal Injury Claim?

We’re speaking with Attorney Joseph Matthews, an expert on personal injury lawsuits, and the author of, “How to Win Your Personal Injury Claim,” published by Nolo.

NOLO: Joseph, all of us suffer injuries from time to time as a result of the actions of others. But how does a person determine that they deserve to be compensated for that injury? In other words, are there any simple ways to determine whether or not a person should pursue a personal injury claim?

JOSEPH MATTHEWS: When you’re deciding whether to pursue an insurance claim for a personal injury - and I want to make very clear here that we’re not necessarily talking about a legal action or a lawsuit, but simply a claim against an insurance company for the injuries that you’ve suffered - you have to determine whether or not the injury is worth your time pursuing. That is, unless you have received some treatment for the injury, or have lost time at work or school, then, in general, you’re going to have to say, “This is not something that’s worth my time and energy to pursue.” However, if you have received any kind of medical treatment for your injury, or if you’ve lost any time at work or school, then you move into the category of a valid claim. The question of whether or not you can collect on that claim depends then on who was at fault for the accident. But this is not any kind of scientific calculation; the sense of who was at fault is a combination of common sense – who’s done something careless and who’s been careful – on the one hand, and the insurance system as it’s set up, which is, that people pay into insurance companies precisely to compensate people who are injured, so that insurance companies are there, ready to make payments to people if they present a logical and sensible claim that they have been injured as the result of somebody else’s carelessness.

NOLO: Joseph, how do insurance adjusters view people who bring personal injury claims?

JOSEPH MATTHEWS: Insurance adjusters are professionals in the business of settling insurance claims. However, they don’t know nearly as much about your accident, how it happened, what your injuries were, and what’s happened since your injuries, as you do. So that, although some insurance adjusters may bluster and try to intimidate you not to pursue your claim, once you get yourself organized with the help of the personal injury claims book, you can present a claim to the insurance adjuster that makes the adjuster understand that you know how much your claim is worth. That figure is the kind of mystery that the book solves, and it’s the thing that, once an adjuster knows that you understand, will quickly move towards settling your case. Your claim is based on the seriousness of your injury, the amount of your medical bills, the kinds of residual problems you suffer because of your injuries, and the amount of time you’ve lost from work, school, or other events. Once you know how to put numbers on those elements of the claim, the insurance adjuster will quickly understand that you know how much the claim is worth, and will come to a settlement with you. It’s only getting over that initial process of making the adjuster understand that you know how the claims process works that’s the difficult hurdle. Once you’re past that, it’s only a matter of arriving at a final figure, and most people, except for very serious injury cases, are capable of doing that work themselves, without having to hire a lawyer, which may get you an extra 10, 15, or 20% above what you could get yourself from insurance, but you lose all of that and much more, because you have to pay a lawyer one third to 40% for the lawyer’s work.

NOLO: You often hear about cases where two people are injured, and both had degrees of fault. For example, a driver runs a red light, and hits a pedestrian who’s jaywalking. How does the law go about determining which of the two has to pay for the injury?

JOSEPH MATTHEWS: In most situations in life when there’s an accident, some fault can be attributed to both parties, or three parties, if there are three involved. Nobody, usually, is completely blameless in an accident. However, in order to collect on an insurance claim, you do not have to be 100% blameless to in order to collect. The law has a concept known as comparative fault, or comparative negligence, which says, if you, for example, were injured but were 10% at fault for the accident, the amount that you collect in the insurance claim or in court will be reduced by that 10% that you were at fault. Now, there’s no way, of course, to put an exact number on the amount that you and the other side were at fault; this is part of the negotiating process that we explain in the personal injury book, so that you put it into a hopper along with the amount that your pain and suffering is worth, and you begin a negotiating process with the insurance adjuster. But you always have to bear in mind that under this notion of comparative fault, even if you too contributed to the accident, you are still entitled to compensation for your pain and suffering, and your injuries, and your medical bills, and your lost work, or your lost school or other events, and the insurance adjuster knows this as well, and you will be able to pursue your claim to a successful conclusion, even though it’s clear that you might have done something to avoid the accident, or even if you contributed to the accident yourself in some way.

NOLO: Here’s a question I’m sure a lot of people wonder about. Is using a cell phone in an automobile enough to demonstrate that you’re at fault if an accident occurs?

JOSEPH MATTHEWS: One of the most increasingly common phenomena in life on our roads today is the person driving and talking on the cell phone at the same time. Studies are now coming out, and it’s a slow process, because the phone industries of course are keeping their own research private, and not disclosing what their own research finds, but slowly research is coming out that essentially establishes that talking on a cell phone while driving is the equivalent of drunk driving. That is, the amount of distraction it causes while you are driving to talk on a telephone slows your reaction time down to the same amount that being drunk does. It’s an extremely dangerous and increasingly frequent occurrence in our phone culture, and it now is something that’s part of accidents more and more frequently. If you can prove, and this is, of course, the difficult part, but if you can prove that someone was talking on the telephone when they got in an accident with you, you have a very powerful tool for showing that that person, in and of itself, was liable for the accident, no matter what else they did in their driving. The problem is proving it. Now, if you have a witness or two, passengers in your car, or people standing on the street, who all can say, “Yes, I saw this person talking on the telephone while they were driving at the moment the accident happened,” you have a very powerful tool for winning your claim. Or, you may be able to get a hold of the telephone records for the person who was doing the driving in the other car, which also may show exactly when they were using their telephone. In either event, if you can show that they were on the phone at the time of the accident, you have a very powerful tool for winning your claim, in addition to whatever else they may have done in the actual operation of the vehicle.

NOLO: When I was in law school, I was led to believe that it was very difficult to win a slip-and-fall lawsuit. Is that true or not?

JOSEPH MATTHEWS: Slip-and-fall lawsuits, or slip-and-fall insurance claims, which is what we’re really talking about here, not going and doing a lawsuit by yourself… slip-and-fall lawsuits are more difficult to win than automobile accidents, just because slip-and-falls don’t have their own set of rules-of-the-road the way that automobile accidents do. Because there are no absolute rules on how somebody should build, maintain, and clean their stars, and how exactly you should walk up and down those stairs, it’s sometimes more difficult to prove that somebody was at fault for a slip-and-fall accident. On the other hand, there’s no particular reason why a slip-and-fall accident – as opposed to any other kind – can’t be won in an insurance claim, if there is good evidence showing how the accident happened. So, if you fell in a wet spot on the floor, and it’s obvious to several people - including yourself, and the managers or employees of the place that you fell, or the residents of the place that you fell - that that floor was wet, you don’t necessarily have any more complicated thing to prove than you would in a car accident case. On the other hand, when you’re talking about a staircase, or a slip-and-fall on a floor, where it’s not obvious what the cause was, then you have a more difficult claim, because you have to show that there was something wrong with that floor, or those stairs, that caused you to fall, rather than simply your own carelessness in not walking properly

NOLO: Joseph, how does a person determine whether or not they can handle their own personal injury claim, or whether they should pass it along to a lawyer?

JOSEPH MATTHEWS: Of course, there are certain kinds of cases that people should not handle themselves, even at the insurance claim stage. If you receive a very serious and permanent injury where you’re going to have a loss of the use of a limb or bodily function for the rest of your life, or even for a long period of time, that case is simply too serious for you to handle on your own, and a lawyer’s expertise will be worth the amount of money you have to pay the lawyer to handle your claim. However, most cases which involve injuries, and even serious injuries, people can handle themselves, at least in the insurance claim stage, if they have the information that we provide in the book, and they get themselves organized in order to present a claim that an insurance adjuster can see explains the injuries, and the pain and suffering, and the lost income, sufficiently to make a settlement offer. In most cases, people can handle that themselves. But we do want to reiterate that, with certain kinds of cases where there are serious injuries, or very technical legal questions, such as medical malpractice, toxic injuries, or the like, you will need the assistance of an experienced personal injury lawyer. However, for most run-of-the-mill kinds of accidents, where there is no serious permanent damage done to your body, bodily functions, and ability to function in the world, you can handle at least the insurance claim portion of your claim by yourself, and save yourself considerable money in attorneys fees by doing so.

NOLO: In your book, you indicate there are deadlines for filing lawsuits, often as short as one year. But what if the insurance company drags out its settlement discussions past the deadline for filing the lawsuit?

JOSEPH MATTHEWS: There are deadlines in every state about when you must file a lawsuit against the person you believe is responsible for your accidental injury without losing all of your rights to pursue a claim against that person. Those deadlines, in most jurisdictions - that is, in most states - are two or three years; however, there are some as short as one year. When that jurisdiction deadline comes up in your case, you must file a lawsuit, in order to protect yourself, in order to pursue your claim beyond that deadline. That doesn’t mean you necessarily have to pursue that lawsuit, but you do have to get it on file in the court in order to protect yourself. You can do that yourself in many cases, with the assistance of this book, and with the assistance of the courts, who try to help pro-per – that means people doing things without a lawyer – litigants, or you can hire a lawyer on a very short-term, by-the-hour basis, to simply file that paper for you to protect your rights, and then continue to pursue your claim on your own until you reach some point that you believe that the insurance company is simply not going to provide you with a decent offer or settlement, in which case you then might have to turn to a lawyer to help you finalize the case.

NOLO: Joseph, thanks so much for speaking with us today.

JOSEPH MATTHEWS: Yeah, it’s been a pleasure, and I just want to emphasize for people that there is an entire insurance industry out there collecting payments from everybody, every day, specifically to provide for compensation for injuries to people who are injured in accidents; so, one of the things to remember is that if you’re injured in an accident, don’t feel like you’re trying to take advantage of the system by filing an insurance claim. The insurance industry collects billions of dollars every year from people precisely to provide for this compensation, and if and when you are injured and have a legitimate claim, it’s absolutely the right thing to do to pursue your claim in order to collect a portion of that billions of dollars that the insurance company has collected for just this purpose. Thank you very much for having me.

We’ve been speaking with Attorney Joseph Matthews, author of “How to Win Your Personal Injury Claim,” published by Nolo.