This is an ongoing series where Attorney Zach Herbert outlines the phases of an average personal injury case. Not every case will follow this exact outline, as each case is different. If you missed the first installment in this series, visit it here “Different Phases of a Personal Injury Case” on the Herbert & Eberstein blog.
Once you have taken the first steps in beginning a personal injury claim, you will likely want to know what to expect next. After reporting your claim and going through liability determination, you should expect to go through these phases in your personal injury case next.
Phase 3: Gathering Evidence/Demand
How long will this take? This is a common question, and the most honest, but also most frustrating answer is “It depends.” It depends on the following: the nature of injuries, the amount of treatment needed, the estimated coverage available, and the level of complexity of the case. First, injuries in personal injury cases can range from minor to severe, and even death. Minor injuries do not take long to heal, and the medical treatment associated with those injuries will also not take much time. The severity of the injuries sustained in a personal injury event, like a car wreck, dictates how long the evidence gathering phase takes.
The whole point of this phase is to get a good picture of what damages the negligence of the defendant caused. Put another way, how much were you hurt? To get a good snapshot of how much you were hurt, we must first look at the damages that are allowed to be recovered in a personal injury lawsuit. Not all damages will be listed here, but the most common ones are medical expenses, pain and suffering, mental anguish, and physical impairment. Damages can be divided into two categories: economic and non-economic.
Economic damages are those that you can get a receipt for. Examples of economic damages are medical expenses, property damage, loss of use, and lost wages. These are relatively easy damages to calculate. Because these damages are so easy to calculate, insurance companies and lawyers tend to value cases based on these damages alone. However, non-economic damages can be much more than economic damages.
Non-economic damages are intangible – they include things like pain. If someone causes another person pain, compensation for that pain is possible. However, quantifying another’s pain is very difficult. Thousands of trial books have been written on this subject. However, the best way of looking at this is considering how much we spend to take pain away – from over the counter to anesthesia, taking pain away is very important to us, and expensive. Causing another person pain should be measured in the same way.
In Texas, the statute of limitations for most personal injury cases is two years from the date of the incident. This means a lawsuit must be filed against all responsible parties before two years is up. A trial does not have to happen by then, and in fact, many trials take place after the statute has run. More on that later. For now, remember that no matter how severely injured you are, the clock is ticking on the lawsuit. Most lawyers will want to get the snapshot of your injuries over to the insurance company within a year. This gives them enough time to negotiate, gather any additional evidence, and prepare a lawsuit.
A demand contains that snapshot. In Texas, a demand to an insurance company needs to have all the evidence available to allow the insurance company to make a reasonable settlement offer. At this point, attorneys vary on what their demands look like. Some think they need to be 10 pages long and summarize all medical records. Some think demands need to be only a page. The reality is that demands need to have all the medical records and bills and any other evidence attached so the insurance company can have an opportunity to evaluate the case.
Phase 4: Negotiation
A reasonable time must be given to the insurance company after the demand is sent. This may range from a few weeks to a month. Depending on how large the demand is, insurance companies may request an extension on their response. When an insurance company responds to a demand, they usually do this in writing. Any offers to settle a case are for all damages. Rarely are offers itemized. This means that whatever an insurance company offers, you get what is left after Attorney’s fees, expenses, and unpaid medical bills. Your attorney will communicate the offer to you, and estimate how much will be left for you, and then give his or her advice. This advice usually is either take the offer or don’t take it. You are the only one that can settle your case. Your attorney merely gives you advice.
Negotiations may last a while. The insurance company might want more information, or might lowball the first offer and necessitate some back and forth. Your attorney might wait until he or she thinks they have the highest possible offer before they give you a final number and settlement advice.
Phase 5: Settlement pre-suit
If you decide to settle your case at this point, you are finished! No lawsuit will be filed and no trial will take place. Roughly 50-60 percent of personal injury cases settle at this point. However, many things must happen after the settlement. Any liens must be negotiated, the payment must be received, and the attorney must create an accounting for your approval. Sometimes this can last 45-60 days after a settlement is reached. The settlement check will be deposited into a trust account until the final accounting is ready for your approval. Once you receive your check, you don’t have to worry about federal income taxes – personal injury settlements are tax free!
If you have been injured as a result of someone else’s negligence, you may be entitled to receive compensation and should speak with Lawyer Zach Herbert at Herbert & Eberstein today.
Next up Phase 6: Filing Suit
Attorney Zachary Herbert
T: (214) 414-3808