1-A. Immediately speak to an experienced trial lawyer to get
specific advice.
2-A. Nothing. In 25 years of practice I have never charged anyone for providing advice in
an emergency. If you need immediate help call 190 and at the second dial tone enter 197 or
direct dial 198
3-A. Make a record and preserve the evidence.
4-A. If you have been in a serious accident, chances are that someone has already made a
record of what has happened to you. There already is a police report, an on-the-job
worker's compensation report or the like. If your condition required medical care,
hospital records will confirm your injuries.
If you were injured at home, report your injuries to your doctor or health clinic and
obtain all appropriate medical treatment. Appropriate treatment is that care recommended
by a doctor.
If you have developed food poisoning, in addition to seeking medical care, immediately
report your suspicions to the restaurant or store and the county or city health
department.
Never hesitate to "get checked out" even when you feel "O.K., but shaken
up." Many times the onset of physical complaints begins 12 to 24 hours later. Maybe
you did walk away from being rear-ended by a truck and only feel "shaken up" but
tomorrow morning when you get out of bed it may be different.
See a doctor following the collision will insure a preliminary diagnosis and perhaps
minimize the discomfort and future treatment you may need later.
Tell the doctor the complete truth and only the truth. Anyone who manufacturers symptoms
and then makes a claim is guilty of fraud.
Follow the doctor's advice. Do not substitute your judgment for that of an experienced
medical professional. If you do, it will be used against you whether you over-treat or
under-treat.
5-A. When reporting to doctors, take extra care to identify specific complaints, take with
you a list of all complaints and tell the complete truth.
If something does not feel "right" your doctor needs to have this information
order to render an informed medical opinion.
Even though you feel it is "no big thing" now, a dry mouth, some light headache
and a little dizziness, may be evidence of hyperventilation or something more serious.
Anything that is out of the ordinary is a symptom and should be reported to assist your
doctor in making an informed diagnosis.
For example, a patient who has very slight tingling in the fourth and fifth fingers and a
minor crick in the neck, may not report the tingling sensation, which could be the sign of
major disruption to a cervical disk. If that disk becomes a complete rupture that requires
major surgery it will have been far better to have had the initial medical entry in order
to show that the onset of the fracture to the outer wall of the disk was the initial
injury, not picking up a bag of groceries three weeks later, as the insurance company
doctor will argue to the jury.
Lastly, keep receipts of everything and maintain a calendar of post-accident events that
will help you recall later the days you could not work, were unable to enjoy your leisure
time or spent Saturday at the physical therapist.
No matter whether it is a personal injury claim or any action in which you are the
plaintiff, keep a fully detailed record of the harm you suffered.
6-A. First immediately have someone take physical custody of what ever was involved in
causing your injury.
Never hesitate to buy wreckage and if anyone should have second thoughts about buying a
wrecked Bronco, a Jeep that rolled or a vehicle that has a gas tank that failed, keep in
mind that it is comparatively inexpensive to buy a wrecked car, for example, compared to
the value of a successful product liability case and if worse comes to worse it can be
sold, but once it is lost it is gone forever.
Once you gain ownership of the defective product, lock it up in a facility that you
control.
7-A. If the evidence cannot be bought, at a minimum, put everyone on notice by certified
mail, including owners, tow operators, wrecking yards, police impounds, and the like, that
they must take every step to preserve important evidence and the failure to do so will
subject them to being sued for allowing evidence to be destroyed.
8-A. When evidence is in the possession of a third party or one of the anticipated
defendants who is threatening to modify or destroy it, hire an experienced lawyer to
immediately get a judge to issue a temporary restraining order and a preliminary
injunction to avoid alterations or destructive testing. The temporary restraining order
should be carefully drafted so that anyone receiving notice of the order and in control of
the article will be required to preserve the evidence or deliver it to the possession of a
neutral person and to initiate preventive measures against damage in transit.
9-A. Absolutely. Always take multiple rolls of film of the accident location, crashed
vehicles, approaches to the scene and of the person who suffered the injury.
10-A. A 35 mm with a 50-55 mm lens and an 80-100 mm lens to get photographs of specific
details, but if all that is available is a disposable camera, use it.
11-A. Plan on taking three times as many photographs as you think you might need. Take
shots from multiple angles and locations.
Use the parallax approach when taking photos. Position your feet. Lean left as far as you
can, frame the shot and shoot. Without moving your feet, lean right as far as you can,
frame the shot and shoot. You have created a sufficient angle with each set of photos to
allow a professional to reconstruct actual distances, should that information be needed in
the future.
12-A. You cannot wait at all, especially when trying to capture impending skids. Tires do
not immediately lock-up and change from rolling tires to skidding tires. During the
braking process the tire begins to leave an imprint on the roadway BEFORE skidding. These
marks are impending skids and are faint marks that can be seen on the roadway for only 24
to 48 hours after a collision. An impending skid and a skid mark when taken together gives
a very accurate record of the actual speed of a car before a brake application. Lay a
yardstick or ruler next to impending skid marks so an accident reconstructionist can
readily compute actual distances based on the photographs.
13-A. Try and shoot at the same general time as the original collision. Plan on shooting a
series of photos showing what each driver saw as they approached the point of impact.
ALWAYS HAVE SOMEONE WITH YOU TO WATCH FOR TRAFFIC. Take distant and close up photographs
from every point on the compass. When in doubt, take another set. You cannot take too many
photographs of the aftermath of a collision, explosion, fire or other loss. Remember that
all evidence must be secured immediately.
14-A. Photograph it in place, both up close and from a distance. Make sure the photographs
allow you to specifically identify the location where it was found. Once the photographs
are taken, take charge of the evidence, transport it to a safe storage location and make a
note of the time you secured it at the scene and the time you put it into storage. This is
what police do all the time. It's called booking the evidence.
Failure to secure evidence at the scene can be a critical mistake. In once case, relatives
visiting the scene of a rollover in which the driver was ejected, found the driver's door
still in the median. They did not want the driver's wife and parents to suffer the anguish
of seeing the door at the crash site, so they picked up the door and took it to a dump.
Several months later, when the victim's spouse hired an attorney to determine the cause of
seatbelt and door latch failure, the truth was learned.
15-A. Be careful not to alter anything and keep other people out of the photograph. Begin
at one one of the car and start at a distance where the complete vehicle fills the
viewfinder. Move around the vehicle and take photos from the N, NE, E, SE, S, SW, W, and
NW. Next make another swing around the vehicle, but this time take close up views of the
exterior that will identify collision points, paint transfers, structural crush, ripples
in sheet metal, etc. Once this is completed, photograph the complete interior. Look
closely for interior impact damage. If the driver's head struck the windshield frame
because an airbag did not open, look for the indentation in the frame caused by the
driver's skull.
16A. Verify the victim's condition in the hospital. Keep others out of the photograph and
remove anything that distracts from the person being photographed, such as balloons, etc.
Take photos over time that show the progression of treatment, special medical equipment
and healing of scars, bruises, etc.
In the case of burn victims, a videotape of the multiple washing of burns with sound
captures the agony that is suffered.
17-A. Let no one destroy, throw away, or leave behind anything that is part and parcel of
the any product. Photograph the location where evidence is found and then remove it for
safe storage.
Always preserve written materials that came with a product: packaging, inserts, manuals,
warranties and similar written materials.
Immediately buy an identical product, preferably from the same retailer. In a case
involving a small chain saw that jammed on full throttle, an immediate purchase resulted
in a saw identical to the injury causing saw which was discontinued by the manufacturer in
several months. The new re-designed saw had a protective slide over the trigger housing to
prevent oil and saw dust from clogging the trigger mechanism.
18-A. Less than you would imagine.
Every state has statutes of limitations and procedural requirements that place deadlines
on when you can file a lawsuit.
Statutes of limitations differ from state to state and depend also upon the nature of the
claim.
In California a claim for personal injury or wrongful death must be filed within a year of
injury or death. In a few limited cases the law allows an individual to file a lawsuit
later than one year if they did not incur an injury until years after a wrongful act or
did not discover they were injured until years later. This is referred to in the law as
"delayed discovery" and occurs most commonly in serious cancer cases where the
victim used a carcinogenic product 20 years ago, but only was recently diagnosed.
There is a major exception to this rule. If an injury or death is caused by a governmental
entity [ for example: city, county, CALTRANS, State of California, irrigation district,
fire district, etc.] a written claim must be filed with the city or county clerk within
six months of the injury or death and following rejection of the claim (45 days after
filing if the public entity takes no action, otherwise the date of actual rejection), you
have only six months thereafter to file a formal legal complaint with the appropriate
court.
19-A. In California, if the wrongdoer is a public entity or government, the child's
parents must make a claim within six months. If the wrongdoer is not a public entity, the
child has one year to file suit following his/her 18th birthday. In cases of sexual abuse
by a family member, a child has until age 26 to file suit and in bona fide cases of
delayed discovery, even longer, although there are many problems in proving delayed
discovery in sexual abuse cases.
Statutes of limitations differ depending upon the nature of the lawsuit or claim. In cases
of breach of an oral contract, California allows two years to file suit and up to four
years for breach of written contract. Fraud has a three year statute. In any action
against a doctor based on professional negligence, a Complaint must be filed with the
appropriate court within three years after the date of injury or within one year after
your discovery, or through the use of reasonable diligence should have discovered your
injury, whichever occurs first.
Other states differ significantly and these rules are different from state to state. The
statutes of limitations which apply to your various causes of action may differ
significantly in timing, and in some cases it can be difficult to readily calculate when
the statute begins to run.
Whatever the time period which applies to a wrongdoer, however, the effect of the Statute
of Limitations is the same in each case: in the event no Administrative Claim or Complaint
has been filed on your behalf within the requisite time period, your action will be
completely barred. In other words, even though your case may be completely meritorious, if
you file one day after the time limit allowed by the Legislature, you lose, forever.
20-A. Do not blame lawyers for these rules. The limitations are called statutes of
limitations because they are laws adopted by state legislatures. Insurance companies
heavily influence the time limits and prefer short statutes of limitations in order to
more quickly determine if a given book of business is profitable. California has the most
antiquated, limited, anti-victim, pro-insurance company/corporate statutes of any state.
Most states have a two year statute for injury cases and some states allow up to four
years. California has a one year statute because special interests control the Legislative
process.
21-A. Make an immediate report to the police. Victims who delay reporting have great
difficulty successfully asserting later claims. If you are interested in a full discussion
of sexual assault cases, please read my article on this website entitled
22-A. Be polite, but decline to talk. Insurance companies' claims adjusters are
professional negotiators, with extensive experience in intimidation, "hassling,"
and using every psychological technique to maneuver a claimant into settling for the
lowest possible dollar, including discouraging people from using the professional services
of a lawyer.
Never violate this basic rule: never give an oral statement to the other sides insurance
company. If you do, you will regret it.
Claims adjusters are from "central casting." They are hired because they
"sound good" over the telephone and they are well trained by company lawyers to
ask questions in a manner designed to hurt you and help them.
You cannot beat an expert at their game. Do not try it. Simply say "thank you for
calling but I am not prepared to discuss this matter with you at at this time and would
prefer all communications by mail."
23-A. Just like you would negotiate the sale of anything else.
First, determine your settlement goal based on your total expenses and what you have to go
through because of the other person's negligence.
Anyone who negotiates directly with a carrier probably will not be hiring a lawyer but
keep the threat alive. While this sounds like an ad for lawyers, the truth is that studies
have shown that experienced lawyers can negotiated settlements that are multiples of what
individual claimants can negotiate for themselves. If you have suffered a serious injury,
always hire an experienced trial lawyer to represent your interests.
To successfully negotiate a claim with an insurance company the basic rules of negotiation
MUST be followed.
First, set a realistic goal before you begin negotiating. This is critical. Do not begin a
negotiation until you are absolutely sure that you know the full extent of your injuries
and damages. If the damage has not run its course or if there is a chance of future damage
yet to unfold, do not begin a negotiation. It is too early.
Second, just because an insurance adjuster calls and talks does not mean you have to talk.
Do not get into a discussion, no matter how tempted you may be to do so. Use the occasion
to listen and when its over say: "I will think about it and get back to you."
Three, never bid against yourself or always negotiate in turn. If you make a "demand'
[an offer to settle by a claimant], then wait until the carrier makes an
"offer." In other words don't make a demand for $15,000 at the beginning of a
conversation and then at the end tell the adjuster you will take $10,000 today. All that
you will have done is to PROVE to the adjuster that you are a greenhorn that can be had
for much lower a price. Make your demand and then wait for the carrier to make an offer.
Fourth, take your time. When you receive an offer, think about it. Do not respond
immediately. Claims adjusters know that if they can keep a claimant negotiating with the
adjuster then there is a high probability of a successful settlement in favor of the
insurance company. Do not expect to settle your case in one or two calls. Give the process
time. "No good wine before its time" also applies to negotiating with carriers.
Once you receive an offer tell the adjuster you will "think about it."
Fifth, do not listen to anything but the number. Insurance company adjusters take courses
written by psychologists to use words and approaches that will give them the upper hand.
They may sound nice on the phone, but these folks are professionals who eat claimants for
breakfast. No matter what they say, ignore the words. The only thing that counts is the
number. Once you hear the number end the conversation: "I will think about it."
Then go think about it before calling back with your responsive demand.
Sixth, carriers want to save litigation expenses. You may obtain the best offer in the 30
to 60 days before the statute of limitations runs out on your claim, but if you cannot
bring your claim to a final agreement before the statute runs, you will need to have a
lawyer file a lawsuit for you to protect your right to collect the damages you have
suffered.
24-A. Read my article on this website. Check the lawyer's record, types of cases they have
tried, and references. Only hire a lawyer rated "AV" by Martindale-Hubbell
[available in all libraries] and one with special experience in maximizing recoveries. All
good lawyers keep a professional resume commonly referred to as a curriculum vitae, or
"c.v.," that contains a list of accomplishments. To see a c.v. of an experienced
lawyer who has substantial trial experience
25-A. Almost. Contingency fees of one-third to settle and 40% to try are very common, BUT
how it is computed is significantly different. Read my article on this site
