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Property damage is one of several factors attorney and insurance companies use to evaluate a claim. It isn't the ultimate factor, but it can be very determinative of the outcome. If there is a lot of property damage it is easier to believe a person was hurt. Dramatic property damage photos look great to a jury. If you were pulled out of the car by the fire department using the "jaws of life" or a saw, it makes the jury wonder just how bad the accident was. If your car looks like a bomb went off in it, the jury wonders how anyone survived. Usually though, the property damage isn't that bad. In all honesty, the insurance company knows that a low property damage accident can be very painful and cause significant injuries. The insurance company also knows that if the property damage is minor there is a good chance the can try to convince the jury you weren't hurt. Jury's have been very skeptical of injury claims for years now. This skepticism was created by the insurance industries very effective propaganda campaign.

The insurance industry has done a phenomenal job of creating propaganda to prejudice juries against claims. Commercials like the famous Allstate ads asking if an accident was staged, or if a house fire was arson are fine example of this propaganda. There have been studies by places like Baylor University looking at the claims of Tort Reformers in Texas and debunking much of the myths about what was claimed to be a crisis. (Straight from the Horse’s Mouth: Judicial Observations of Jury Behavior and the Need for Tort Reform, Baylor Law Review, [Vol. 59.2] 2007 Larry Lyon/ Bradley J.B. Toben/ James M. Underwood/ William D. Underwood/ James E. Wren). For example the study found that:

• Over 83% of the Texas district court judges had observed not a single
instance of a “runaway jury” verdict on either actual or exemplary
damages during the preceding 48 months.
• Over 85% of judges had not at all or in only one instance granted
relief during the past four years due to an excessive award of
actual damages. No judge in the entire sampling had granted such
relief during the prior four years in more than three cases.
• Over 83% of Texas judges had not witnessed a single jury award
too high (compensatory damages).
• 15% of Texas trial judges observed juries refuse to make any award
of punitive damages when the judge believed such an award was
warranted.
• 44% of the judges had not personally observed a single frivolous
lawsuit in their courtroom during the prior four years.

Yet, the propaganda would have you to believe Texas was full of sue happy plaintiff running away with tons of cash on unwarranted and frivolous claims. Enough so that legislation passed several times to curb the perceived crisis. I have been, and remain embarrassed by the inability of the Texas Bar Association to fight this propaganda. It is a disservice to Texas that the Texas Bar Association was not more active is stopping the unnecessary legislation or a counter educational truth program.

Back to the point, there are numerous studies showing how collisions as low as 10 mph can cause significant injuries. A few examples are:

http://www-nrd.nhtsa.dot.gov/pdf/nrd-01/esv/esv19/05-0363-O.pdf
http://www.safetyforum.com/lowspeed/
http://www.chiroweb.com/mpacms/dc/article.php?id=15498
http://www.carinsurance.com/Articles/content123.aspx
http://www.streetdirectory.com/travel_guide/54/car_accidents/low_speed_impact_injury_facts.html

However, the problem for lawyers isn't believing you were injured, it is whether they think they can convince a jury you were injured. Most lawyers know that a minor impact case is more likely to go to trial than a large property damage claim. So the focus is on what they think they can accomplish at trial, not what can happen in settlement. The adjusters are trained to try to dismiss and fight these low impact cases. The term MISTI or MISTY has been coined by the insurance industry to classify these claims as Minimal Impact Soft Tissue Injury cases. Many insurance companies have special groups of adjusters assigned to handling these types of cases. Their job is to minimize the possibility of injury and to pay as little as possible.

Does all this mean your low impact case is worthless? No, but it is going to be a fight. There are factors than can be addressed to explain why the damage to the car was minimal but the injury severe. Factors such as one car going under the other, your position in the seat, if you saw the accident coming or not, etc. If you have a minimal impact case and are injured you should not try to go without an attorney. The insurance company has done a massive amount of prep work for your type of claim and is going to fight you to the end. Have an attorney review your case. You may have to shop a while before you find an attorney willing to work the case. Lawyers, like everyone else, like to take the fat easy fruit from the bottom of the tree, not the small hard to reach fruit at the top. But, you will find help and hopefully be able to get compensation for your injury.

When a client is represented by a lawyer, the lawyer can issue a letter to the doctor asking the doctor to hold the bill for collection, and promising to pay the doctor out of the proceeds of the case. This letter is usually called a Letter of Protection (LOP). The LOP does not make the lawyer responsible for the bill. The bill remains a contract between the patient/client and the doctor. The LOP does become a contract between the lawyer and the doctor.

Some are critical of the LOP. The most critical are insurance companies. Insurance companies don’t like LOP’s because they allow a person without cash or health insurance to generate medical bills that must be compensated. Insurance companies also like to make an LOP sound like some sort of sinister collusion between the doctor and the lawyer. They argue like to imply that the bills are higher than they would normally be because of the LOP and some plan to drive he costs up in hopes of a bigger settlement.

In reality the LOP is the only way some people can get the care they need as a result of somebody else’s negligent conduct. If you don’t have health insurance, or can’t afford your co-pays, then you can’t get medical care at a price that fits your budget. Inmost cases the LOP is just like a credit extension. The bill is whatever it would have been, the payment is just deferred. There is no reason to drive the bill up beyond normal because the case value is a function of reasonable and necessary care, as with any case. If the bills are artificially high, the settlement will not cover the bills. Since the doctor knows the LOP does not make the lawyer responsible, having an unpaid bill with a client who cannot afford to pay makes no sense.

Thee is some debate as to which is better to use, an LOP, health insurance, or a combination of both. If your health insurance is used, the defendant’s insurer gets the advantage of tort reform legislation which says (in a hotly debated issue) the dollar damage should be what the insurer paid, not the full bill charged. This comes from the Paid versus Incurred argument in Texas. Usually health insurance pays a discounted rate, on average 20% off the bill. The legislation says that discounted rate is the bill, not the full charge. Some therefore argue that health insurance should be avoided, so that the full bill is reimbursable. There is a problem with that logic too though. If things go wrong in the case, the client is responsible for the full bill. It may not be possible to seek health coverage after the fact. Advising a client not to use health could backfire; making the client responsible for a bill that health insurance would have paid.

I usually inform my clients of the issue and let them and the doctor decide what they want to do. For me the LOP is chiefly a tool to use when there is no health insurance.

I often have people call me, not so much to hire me, but to seek confirmation of their belief that their case is a “slam dunk.” When callers think they have a “no-brainer” or automatic win it’s usually because they don’t see a way the facts could be turned against them. Typically these kinds of accidents are rear end collisions, broadside hits, or red light cases. Many people believe and old adage that if you were hit from behind, you automatically win. These same people are quite shocked when they hear at trial defense attorneys have at times had a 50% win rate. Before you ask, “how can that be?”, it’s because of defense claims like malfunctioning tail lights, abrupt stopping, lane changes, irregular speed, false starts, emergency situations, et., etc…

“Losing” is defined by the outcome. If a win is described as a finding of fault, you are more likely to win these “no-brainer” cases. Notice, I said, “more likely” to win. If you define a win as not just proving the other driver was at fault, but getting a cash award or settlement, your odds go down. They keep getting lower the higher your expectations are. This is because fault is only one part of proving a case.

When you set out to prove an injury accident, you have to prove several things. First, you have to prove there was an accident. That can be harder than you think, but usually proving there was an accident isn’t the hardest part. Second, you have to prove the accident was due to the negligence of the other driver. In most cases this is a little tricky and can end up with negligence being found on all parties. Third, you have to prove the negligence of the other driver was the “proximate cause” of your damages.

The concept of “proximate cause” takes about a month of a law student’s education. Proximate does not mean sole or only cause; it essentially means the most likely cause (my torts professor is rolling his eyes now). This causation goes not only as to what negligence brought about the impact, but can go to what brought about your injury as well. It is here that things start getting tough. If your injury involves a part of the body that was ever injured before, the defense will argue they didn’t “cause” this injury, it was pre-existing. They might even split hairs by saying at most they only aggravated a pre-existing injury. If they argue aggravation, then you are in a tangled forest of proving what you were like before and after impact. Now to muddy the water more, the defense can twist what seems like a “slam dunk” with the two most irritating defenses ever conceived. They are “last clear chance to avoid the collision” and “control of the intersection.”

The basic concept of “last clear chance” is who had the last opportunity to avoid the impact. They will argue if you could have changed lanes, slowed down, stopped, honked your horn, or any other number of acts that the impact could have been prevented. The old adage that hindsight is 20/20 is the blatant strength of this defense. Sitting calmly in their office chair, the defense attorney or adjuster is free to imagine every possible thing you could have done, but didn’t have time to think of, while the accident was about to happen. Then they get to make you look like the bad guy for not taking that action and preventing the accident. The other concept is “control of the intersection.” The idea behind the “control of the intersection” defense seems to go counter to what we all understand as the rules of the road. The law says you cannot enter an intersection if it is not clear. So, the defense will argue that even though their client was running a red light (or still in the intersection after it turned red), that their client was in the intersection first, and therefore you had no right to be in the intersection at all. Crazy huh? Yeah, it drives me nuts. If the defendant hadn’t run the light, he wouldn’t have been in the intersection at all. Oh, but wait! “If you had been looking ahead, you could have seen my client running the red (which was because the sun was in his eyes and he couldn’t see it change), hit your brakes sooner, or changed lanes, and taken the last clear chance to avoid the collision.” Their driver ran a light, and now they are arguing you were the one at fault.

If you have proven there was an accident, the other driver was negligent, his/her negligence was the proximate cause of the accident and your injuries; you still have to prove the treatment of those injuries was reasonably priced and medically necessary. Imagine justifying the price of gasoline. If you run a gas station, you can point to the costs of buying the fuel, but how to you justify the price they charged you, etc? In an injury case you have to prove the prices you paid for your medical care were reasonable. If the other side can show that your doctor charges more than most doctors for the same care, they can ask that they only be forced to pay what were normal prices. If they can show that some of the treatments you got were not necessary they can ask not to be charged for those treatments at all. Now you have to get a qualified expert in to prove that the rates charged were reasonable, and that the care you received was necessary. It isn’t enough that you were charged, or that your doctor told you that you needed the care. You have to be able to prove the doctor was right. That can sometimes come down to a battle between your doctor and their hired gun M.D. who is basically going to call your doctor out as a liar.

With all these steps, all these defenses, I know every case has weaknesses. So, when I get a call from a person who was hit from behind, on a freeway, in heavy traffic and they tell me the case is a “slam dunk,” I understand that to them the cause of the accident seems obvious, but I know there is a heck of a lot more to prove before they will have the “win” they feel entitled to.

I get lots of calls from people who are trying to settle their own accident claims. Usually they call near the end of their negotiations with the insurance company. They are unhappy, frustrated and looking for advice as to how to wrap it up. At some point they all say something like, "I'm supposed to get three times my medical bills, right?"

When I started practicing personal injury law in 1991, you could still get a three times settlement with regularity. But, several waves of tort reform, the adoption of the Colossus adjusting program, the requirement of HICFA forms, and some just plain anti-lawyer and anti-lawsuit propaganda, later those days are gone.

I haven't looked at the statistics recently, but the last time I checked the average soft-tissue, non-DWI involved accident case was resolving for quite a bit under three times medical bills while in litigation. The odds are still rather high against petitioners at trial too. The last time I checked the "Blue Sheets" (a published list of all litigation settlements and judgments in Texas) some 63% of the people filing suits were getting zero to something less than their total claimed medical bills at trial.

I take these statistics with a grain of salt. I know that 90% or so of the claims made in Texas resolve without the filing of a lawsuit. The ones that get filed are usually ones where there is a problem with the facts of how the accident happened, a problem with the claimed injuries, the treatment or some other issue. If the problem cases are the ones most often filed, they are not a good statistical model of the non-problem cases being settled out of court. However, the insurance companies look at these statistics too. They know that the odds of trial are not good, and they have artificially inflated egos because of it. Unfortunately they take these statistics as a model of what should happen pre-trial.

What is the amount you can expect from a soft-tissue accident case? Everyone asks, and they get mad when I tell them there is no way to tell. Now, more than ever, each case is an individual matter. The facts of the accident, the amount of property damage, your age, your prior injuries, general health, mental health, living circumstances, job, treatment history, choice of doctors, use or non-use of health insurance can all affect the outcome. I can only guess where a case is going if I have been working it all the way through and we are several moves into the negotiations process. Sure, there is an average in there somewhere. Much like buying peaches, for example, if you weigh every one there is an average weight, but the best ones have that certain firmness, color, smell and ripeness that make a good peach. You have to look at each peach individually. The same is true with car wreck cases.

I wish I could just tell you what your case was worth and that you could just reach out and grab it. I can't.

What irks me more than that though is that often these callers have backed their case into a corner. With the adjuster entrenched in a position, hiring a lawyer that late in the game may not change anything. Often the caller has negotiated away all their bargaining room, and if they hire a lawyer there isn't much left for the lawyer to do except file suit. It is akin to them having tried to work out a deal with "the mob" in a movie, and now that everything is going wrong they are finally looking for help. Unlike the movies though, I can't put on a bullet proof vest and wade into battle with a pistol that never seems to run out of ammo.

If you came to this article because you have a case heading into negotiations, and you wanted to confirm what your case was worth, I'm sorry you aren't finding the answer you want. But, I encourage you to call for help before you get in so deep that only a movie hero could save you. If you are deep in negotiations and lost as to what to do, call a lawyer anyway. Maybe there is something you missed and the lawyer can still rescue you, even if he or she doesn't need a bullet proof vest to do it.

Whenever I get a call for a car wreck case, among the first questions I ask is whether or not the police came to the scene and did a report. Usually I’m told by frustrated caller that the police were called, but refused to come to the scene. It is fairly common in most metropolitan areas of Texas now that the police will only come to the scene if an ambulance is requested or the vehicles are obstructing traffic and must be towed. This was a cost saving effort by the police departments.

Although I prefer to have a police report to my new cases, it isn’t fatal to the case that report was not done. The findings on the report about who is at fault were usually not admissible as evidence in court anyway. What the report did was provide most of the basic information needed to start a claim. Without the report, I have to hope that the caller got all the essential information. A list of that information can be found on the main site at http://www.shtexaslawyer.com/afteraccident.php.

You should still call the police after an accident, they might come out. If they don’t make sure you get the essential information before anyone leaves.

I ran across a blog article regarding contingency fee cases at http://blogs.law.harvard.edu/ethicalesq/2007/08/29/why-do-lawyers-lie-about-contingency-fees/. The article was a tad old, being from August 2007. However, the site raised issues that bothered me.

First, I’ve never lied about my fees in contingent cases. There are no hidden costs. The fee I charge is 35% of the gross if I can settle the matter without a lawsuit. 40% if I have to file a suit, and 50% if there is an appeal. I point out to my clients that the fee is not inclusive of any expenses, but that I only count something as an expense if I have bill in my hand. I do not pass “overhead” costs such as folders or paper onto my clients. Lastly, I make a personal promise to my clients that I won’t take more of the proceeds of the case than them, after expenses have been paid.

With all that said, I think the article’s title was misleading. The biggest issue the author had with contingent fee cases was that he felt 1) attorneys can get more than the value of the work done to resolve the case, and 2) that clients don’t know they can fight to sign contracts at other fee rates. From there, the article became less informative, and more of a series of arguments. But, I want to address those two issues.

As to the potential of a windfall to the attorney, there is really only one way this can happen. It is possible that an attorney could sign up a case at a 1/3rd contingent fee, do very little work due to an obvious set of facts and terrible injuries, and end up getting paid thousands of dollars for only a few hours of real work. Yes, such a circumstance is unfair. Or is it?

Lawyers cannot know for certain what the value of every case they sign up will end up being. There are some averages they can look to, they can see problems that could diminish the value of a case, or factors that could increase the value as well. But, no lawyer can tell any single client what their case will ultimately be worth at the very beginning. There is too much that can go right or wrong as the case develops. As a result, the lawyer is taking on a case that he or she believes will have “some” value, and putting their effort into getting the most value possible from the case. The client directly benefits from this, as the lawyer cannot get more, without making the client more as well.

Signing a case has a lot of back loaded overhead in it. The lawyer has paid for his education, license, continuing education, taxes, staff, supplies, advertising, equipment, etc. long before any one case is signed. The lawyer has to cover those past costs as well as his future costs from what he signs up now. Additionally, each case will have its own particular costs. Some cases I have worked on had no expenses beyond staff time, equipment and supplies. Others have had thousands of dollars poured into them for experts, depositions and the like. As a result, the lawyer is taking on a calculated risk with every case.

Sure, if you base the fee earned solely on hours worked, sometimes lawyers are earning outrageous hourly fees, but if you look at the cases that don’t do well they have also worked for wages far below minimum wage. That is the nature of the gamble in contingency cases. Some will do well, some won’t. Some will eat up your budget, while others are practically free to work.

There are cases that are more likely to have higher returns than others. Dead loved ones, missing limbs and the like naturally have higher settlements that a minor whiplash case. Should the lawyer take a lower percentage just because the case could do really well? Maybe, then again there are other options available to clients, which gets into point number two.

Regarding contingent fee negotiations, I have seen lawyers charge a wide range of contingent percentages for the same types of work. I have heard of fees around 20 to 25% for auto cases, as well as having heard 40% across the board fees for any type of case. There is market competition. Clients do have a choice as to whom they want to hire. Some lawyers will reduce their fees to sign a contract, others will not. The issue for clients is do they want to risk the potential of a large fee, or risk why the lawyer they are hiring charges less. I heard a great comment along the lines of “you get what you pay for.” I once heard a person ask, do you want a discount lawyer to discount work, or do you want a full priced lawyer to do his or her fullest effort?”

In the end, the client has full control. The client decides whom they want to hire and what portion of the case they are willing to part with. Despite this argument over whether there is something wrong with contingent cases, we should all be glad there are such cases. Imagine if you were badly hurt, would be out of work, had mounting medical costs on an already strained budget, and the only way to get help was to pay an lawyer an retainer or an hourly rate? For all but the very wealthy, it would be impossible to afford representation, and the accident would become the beginning of the complete unraveling o f their lives. Thank goodness that you can hire a contingency fee based lawyer, otherwise you might not be able to hire a lawyer at all.

Okay, so you had an accident. Hopefully nobody is hospitalized or worse. Hopefully you already followed the instructions on the main site (http://www.shtexaslawyer.com/afteraccident.php ). Now you are home. What happens next?

For most soft tissue injuries, my experience has been that you won’t know how bad it will hurt for about three days. Sometime around that third day you will really feel the effects of what happened to you. That’s part of why you don’t want to give a recorded statement to the other person’s insurance. If you are asked about injuries in the first few hours or days, you might say you were not injured. The insurance company will use that statement against you, and no amount of expert testimony will make them give up on your misstatement.

Don’t expect that somebody is going to call you first. There are some very aggressive insurance companies that will try to contact you immediately to try to resolve your claim before you hire a lawyer. Usually though, the person who caused the accident will be slow to call their insurance. They do not want their rates to go up, and will spend every effort they can into fixing their car on their own rather than make an at-fault insurance claim. As a result, if you are waiting on them to call you, you might have a very long wait.

Honestly, decide in the first day if you are going to call a lawyer or not. If you think you might, or plan to only call one if things go wrong, just call one right then. It makes better sense to resolve yourself to getting help immediately, than to wait for proof you need help. It might be too late then.

If you aren’t going to call a lawyer, you will need to setup your claim with the insurance companies, start collecting records and preparing your case for negotiation.

It is hard to tell you what to expect with specifics, since you could take one of two divergent paths at this point, represented or non-represented. But, there are some generalities that apply to both.

You property damage claim will likely be resolved first. It can be resolved through your insurance or theirs. If you use yours, you will be out of pocket your deductible unless your insurance company gets enough in subrogation to pay themselves and your deductible back. How long it takes to fix the car and resolve the property damage claim is a function of the cooperation of the person that hit you and the damages done. The biggest problem in this stage is if the person who hit you will not call their insurance company. The failure of the insured to cooperate with their insurance CAN invalidate the policy, relieving the insurance company from all liability. If the insured cooperates, then your property damage will either be a total loss (the fastest closing) or repaired. If your car is to be repaired, most shops can do that in a relatively short period of time. Usually, you will be in a rental car while the repairs are done. There are problems that can arise that take away the rental car option, but that is not normal.

Your injuries will take longer to heal. Some say that six to eight week is the most time it should take for soft tissue injuries to heal. I have seen it take longer or shorter periods of time. If you have broken bones or disk injuries, the treatment phase will be longer. If you have health insurance then you will only be out your co-payments during this phase of your case. If you do not have health insurance, or a lawyer, you will have to pay by credit card, cash, or whatever arrangements your provider will accept. If you hire a lawyer, often the doctor will accept a letter of protection, agreeing to be paid after your case is resolved. This doesn’t mean the bills aren’t yours. It just means the payment is being deferred. The treatment phase emotionally taxes most clients. It seems to take forever to feel better. You may be missing work, you will have new bills, and you have to resist the urge to settle early. If you settle before your treatment is done, you may release the defendant from responsibility for injuries that your doctor may not have fully discovered yet. For example, disk injuries are often not discovered until an MRI is done. MRI’s are typically done only after conservative care has failed.

Once treatment is complete, you are likely two months or so from the date of your accident, sometimes even longer. A demand needs to be prepared to be sent to the defendant’s insurance company. The demand might be easy to prepare and take only a few days to gather records. Sometimes it can take months to get records and bills from some providers, making the demand stage quite frustrating. Once the demand goes out, the defendant’s insurance company needs time to review it. After the review is complete negotiations will finally start.

Negotiations are the most involved part of the process. They do not have to take a long time, unless your demand was missing information the defendant’s insurance company wants supplemented. Hopefully they will make an offer eventually that meets your desires. Typically though, the adjuster will “top out” at a number under what you truly wanted. If this happens you will have to decide if you want to accept the offer or file suit. If you want to file suit, you are looking at an average of eighteen months from the day you file till the day you are sitting in front of a jury. That time is used for the litigation and discovery process, and is a result of very busy dockets in Texas civil courts.

Trial, is a wholly different story, for another post.