People are injured every day in accidents, frequently through no fault of their own. What should those people expect if they decide to pursue a personal injury claim? This article is a brief review of the initial stages of what you might expect if you desire fair compensation for your injuries. A second article will address what you might expect if a lawsuit is filed.

INITIAL INTERVIEW: Almost all cases start with a thorough interview of the person injured or, in the event of a death case, with the close relatives of the person who died in the accident. The sooner this initial interview takes place the better, as evidence can be lost or destroyed soon after an accident occurs, and memories of potential witnesses can fade quickly. The lawyer will want to know the circumstances of the accident, the parties involved, the type of injury suffered, and likely treatment for the injury. The lawyer will run a conflict of interest check to make sure that the firm has not previously represented or currently represents any parties that may be at fault. The lawyer will also explain how his fees will be determined and how out-of-pocket expenses will be paid. Most personal injury cases are handled on a contingency fee basis, rather than on an hourly fee. The client should have a clear understanding of how fees and costs will be handled, and the agreement should be in writing.

In order for a person to recover damages from another party for injuries suffered in an accident, one must prove that the other party acted negligently and that their negligence caused the injury. The determination of who is at fault for an accident requires a careful investigation of the causes of an accident. At the initial interview stage, a lawyer frequently cannot tell with certainty how the issue of liability will be resolved. You should expect, however, a brief explanation of how the laws relating to liability can impact your case during the initial interview.

Damages cannot be recovered from another party if the injured party is more at fault for the accident than the other party. So initially, the attorney will want to focus more on liability issues than damages. Clients, however, frequently are more concerned about their injuries and damages, than causation. As a new client, don’t be surprised or concerned if the attorney tries to turn the conversation more towards the liability issues rather than damages. Be leery of an attorney that tells you that your case is worth a specific dollar amount in the initial interview; as this is almost always impossible to know at this stage. Any attorney who tells you your case is worth a specific amount at the initial interview is doing so simply as a sales tactic to keep you as a client.

RETAINER: Either at the initial interview or shortly thereafter, the attorney will want to confirm that the prospective client wants to retain the lawyer. A written fee agreement will be drawn up and signed by both the client and lawyer. Before signing the fee agreement, be sure that you are comfortable with the attorney you have contacted and confident that the attorney has the experience necessary to handle your case. Once the agreement is signed, the lawyer usually will request the client sign medical and employment authorizations, so he can begin gathering information regarding the injuries and potential wage losses. The attorney will also notify the opposing party’s insurance company, so the opposing party knows that the injured party is represented by an attorney. At that point, the other party should not make any direct contact with the client without first contacting the attorney. In certain cases, a notice of claim must be sent within 120 days after the accident to preserve your claim.

INVESTIGATION INTO CAUSE: No two accidents are alike, and so the investigation of an individual case may differ significantly. If law enforcement were involved, the attorney will send out a request for their reports, pictures, and videos. Either the attorney or an investigator will contact potential witnesses for statements. Pictures of the accident scene may need to be taken, and evidence may need to be preserved for later use at trial. Experts are frequently retained to give opinions on the cause of an accident. The investigation into cause can continue long after the attorney is retained and can be supplemented by certain discovery methods if a lawsuit is filed. Those discovery methods will be discussed in Part Two of this article.

DETERMINATION OF DAMAGES: The determination of damages usually starts by the attorney obtaining relevant medical records and billings. The attorney will also contact health insurance companies that may have paid medical bills, as it is likely the insurance company will be entitled to either complete or partial reimbursement of medical expenses paid by the insurance company. The same holds true for medical expenses paid for by Medical Assistance or Medicare.

In order for an injury to be compensated, it must be shown to a reasonable degree of a medical certainty that the injury was caused by the accident. This may not always be obvious and frequently will require either the treating physician or another medical expert to give a written opinion. The extent of a person’s injuries may also be unknown at the initial stage, and it may require a period of time before it is known if a physical disability from the accident will be permanent.

Past and future wage loss may also need to be determined. Usually, past wage loss is relatively easy to figure if a person was paid a specific wage or salary. However, in cases where a party is self-employed, calculation of past wage loss can be quite difficult to determine with any certainty. Future wage loss is also hard to calculate and may well require the retention of a vocational rehabilitation expert or an economist to give an opinion.
Lastly, damages relating to pain, suffering, and disfigurement are not a simple calculation. An attorney will frequently rely on their past experiences, results in similar cases, and other jury awards to give the client a range of what they might expect to receive for their past and future pain and suffering. This is not an exact science, but an experienced personal injury attorney who has tried many cases to a jury is in a better position to give an opinion on the subject than a novice.

INITIAL DEMAND: Once the investigation is complete and a determination of damages can be made, the attorney will frequently prepare an initial demand to be sent to the party responsible for the accident. Before sending out the demand, the attorney and client will meet to discuss the demand letter and accompanying materials. The client should always give permission to their attorney before any settlement offer is made. In some cases, no initial demand will be made, since important information cannot be obtained without the filing of a lawsuit, or the damages are not yet fully capable of being determined. In those cases, a summons and complaint will be filed to commence a lawsuit.

NEGOTIATIONS: An insurance company will usually take 30 to 60 days to respond to a demand letter. The insurance company may request that more documentation be sent before responding with an acceptance of the amount demanded, a counter offer, or a complete denial of the claim. Whether further negotiations are warranted often depends on the quality of the initial demand letter and supporting documentation and how close the two parties are in their assessment of the strengths and weaknesses of the case.

FILING A LAWSUIT: More and more frequently, filing a lawsuit seems to be the only way to force an insurance company to discuss a reasonable settlement. A lawsuit is usually filed in the county where the accident occurred, though one can file a lawsuit in another county, depending on certain jurisdictional issues. The case may be filed in state court or federal court, depending on the nature of the claim and the parties. The named defendants will include the person or persons who caused the injury and their insurance companies. If a health insurance company or the U.S. Government paid medical bills, they will also be parties to the lawsuit. In Wisconsin, the insurance company will have 45 days to answer the complaint once they are served. A lawsuit must be filed within the appropriate statute of limitations period. In Wisconsin, the statute of limitations is usually three years for an accident, but shorter statute of limitations may apply. It is important to know the relevant statute of limitations at the beginning of the case, so you do not find yourself without recourse due to not filing a timely lawsuit.

Part Two of this Article will address what one can expect once the lawsuit has been filed.

Robert S. Duxstad practices personal injury law in both Green and Lafayette Counties in Wisconsin. He can be reached by e-mail at duxstad@swwilaw.com.