To help you understand your case better, we've listed our most Frequently Asked Questions from our clients. If you have any further questions, be sure to get in touch with us.
Accidents happen. Why hire an attorney?
Many accidents don't just "happen” on their own. They result from someone's carelessness or recklessness, or hazardous conditions, defective products, or placing you in dangerous circumstances. Very often, accidents cause injury to people, damage property and businesses interests, and create expenses that innocent parties have to pay, for something that was not their fault. When the person responsible for the “accident” refuses to take full and prompt responsibility for it, and pay you everything you are entitled “to make you whole”, very often a lawyer's services are essential so that you can recover what the law allows you to recover. In many cases, a lawyer's involvement also tends to have the person or firm responsible for the accident take corrective action, so someone else will not be similarly injured in the future. For example if a bus company allowed its drivers to speed, or does not enforce safety standards, your suit against the bus company may cause it to crack down on speeding or faulty equipment. This may help others from being injured in other bus accidents.
Do people need an attorney for all accidents?
No. Where the injury is slight, the damages are very minor, and the circumstances that caused the injury are unlikely to recur, it usually makes sense “to pick yourself up, brush yourself off, and start all over again” – essentially forget about it.
For example, if it is a minor parking lot fender bender, your auto insurance company may take care of everything except the deductible, or the other driver's company may do so, and it may not be worth your while to try to get that back, even in Small Claims Court.
But what if the accident is not trivial. You may incur a real injury. You may have major property damage. You may incur large medical fees not covered by your health insurance, have a permanent scar, be unable to play your favorite sport, do your job, or incur other meaningful expenses. If the matter is not minor, or the circumstances are likely to occur again — perhaps to someone else, then you should consult with a lawyer, at least to have the lawyer assist you to consider your options. If you and the lawyer conclude “you have a case” the lawyer may help you recover for the injuries, expense and damage you sustained, and, at the same time, possibly prevent a similar “accident” from happening to and injuring others.
Do I have to pay the attorney up front?
Generally, lawyers handle accident cases on a “contingent fee” basis. That means that they do not charge you any fee, until and unless they recover money for you. They then receive a percentage of what they help you recover. In some states, depending on the type of case, the maximum percentage the lawyers may charge is fixed by statute. In others it is what you and the lawyer work out between you. Similarly, in some states the lawyer may advance the expenses of obtaining medical records, accident reports, taking testimony, retaining experts out of his or her pocket, and you may not have to repay the advances unless you win. However in other states, laws require the client to front the out of pocket costs, or obligate the client to repay the lawyer for them, regardless of the outcome of the case.
If I am in an accident, do I have to speak to the other side's insurance company?
No. If you get involved in an “accident” and the other person has insurance and reports it to his insurance company, it is quite likely that the insurance company will promptly contact you, by telephone or in person. You do not have to speak to them, and frequently it is wise to speak to an attorney first. Especially if there are personal injuries, it often pays to speak with an attorney first and have the attorney represent you in your dealings with the insurance company. Most of the time you'll be far better off.
Suppose the other person's insurance company offers to settle with me? Should I accept?
Do you know the full extent of your injuries? How long they will last? How difficult the recovery process might be? How much income you will lose, not just in the time you are out of work, but afterwards? How much money is traditionally recoverable by persons who are similarly injured who have legal representation? Probably you know none of these things. But the insurance company knows the answers real well, and will never tell you. You would be negotiating in the blind, without any idea of what you may be entitled to recover. An experienced lawyer knows the answers.
How do insurance adjusters operate?
The investigator or adjuster from that insurance company may be very pleasant, appear to be concerned and even try to be your friend. He or she may be a wonderful person, coach the local soccer team, and belong to your church or civic association. But never forget, that his or her job is to protect the insurance company, to make sure you receive as little as the insurance company can possibly get away with, and ideally, to try to “make the matter go away”.
This Jimmy Stewart type line gives you an idea as to how some adjusters operate. “Shucks, I know you're hurting, but you don't want to make a big deal about this, and bother your friends and neighbors, do you?” The investigator or adjuster may try to get you to minimize the nature and extent of the pain (“Shucks, it didn't hurt that much, did it”) or the impact of any permanent injury (“You'll be able to play the violin using your left hand just as well…”), or accept full or partial responsibility for the accident when it was not your fault (“I guess you should have paid more attention…”) or get you to believe it was just one of those things (“If you took the dog for a walk earlier….”), or tell you how difficult it would be to recover (“If I were you I'd accept this. You'll never get more and the courts have a 7 year back-up and you'll never be able to hire a lawyer, and they are so expensive….”). Hogwash. Those are insurance adjuster tricks that an attorney can help you avoid.
Are different types of accidents treated differently?
Yes. The term “accident” is commonly used to cover a wide range of things that were not intended to happen – or at least happen to the person injured. What is critical is the factual circumstances that gave rise to the “accident”. Depending on the factual patterns and circumstances, there may be dramatically different legal consequences even if the results of the “accident” were all the same. As there are sometimes important differences between them, Free Advice has sections on Auto Accidents, Boating and Water Accidents, Slips and Falls, Bus, Train and Plane Accidents and Wrongful Death.
Suppose the accident involves an inherently dangerous activity?
There are many activities that are inherently dangerous, such as using explosives to demolish a building, or keeping wild animals on exhibit in a circus. Yet these activities can be helpful to society generally. As a result the courts have created a doctrine of “strict liability” that attempts to balance the competing interests of allowing socially beneficial dangerous activities while “making whole” persons who may be injured as a result of such activities. If the facts involve what your state considers a “strict liability” situation, it does not matter how careful the user of explosives may be or how experienced she was. Even if everyone thought the explosives expert was doing the job in as safe a manner as possible, anyone “accidentally” injured in his person or property would be entitled to recover the actual damages the explosion caused. Similarly, if the tiger “accidentally” escapes from what the circus thought was an escape proof cage, and roams the neighborhood, the circus is probably responsible for the consequences of the “accident” no matter how careful the circus was.
What about "reckless" conduct?
If the conduct is regarded as being “reckless” the courts are likely to be extra hard on the reckless person. Suppose a normally careful driver, in a hurry to get home after a big party, was really speeding through the streets, and legally “drunk”. The driver hits and seriously injures a pedestrian who “accidentally” happens to be crossing the street. In addition to the actual damages the pedestrian sustained, which could include lost wages, medical bills, rehabilitation, payment for any permanent injury as well as pain and suffering, the driver may be responsible for punitive damages in some states if the jury determines the conduct to have been reckless.
What about accidents occurring from plain old negligence or carelessness?
Suppose a normally careful driver, while talking on a cell phone, gets momentarily distracted, and piles into the car in front of him. Or a driver “accidentally” is blinded by the sun, and crashes into another car. Although the driver thought he was driving safely, the “accident” injures both a passenger in his own car and a passenger of the car in front.
If the driver was not exercising the standards of care required of a person driving a car, he would be said to be acting “negligently”. In that case, the driver (and the driver's insurance company, to the extent of the policy limits) will be responsible for the damages and injuries the accident caused. What if there is a “Guest Statute” in the few states with a “guest statute” a “guest” can not recover for “simple negligence”. The passenger in the driver's car may be limited to recovering medical bills only, or be wholly out of luck, unless the driver's conduct was more than “simple negligence”. Even in those states, a lawyer can help you assess whether the driver's conduct might be more than simple negligence, permitting recovery against the driver.
Suppose the accident is my fault?
First, don't be so sure that the accident is all your fault. Many accidents result from things people think are their fault but really aren't. For example, suppose your car suddenly ran off the road on a curve when you were at or near the speed limit? You feel badly as you recognize, with the benefit of hindsight, that you should have slowed down further. Yet if you were driving a Chevrolet Corvair – the car Ralph Nader demonstrated was “Unsafe at Any Speed” – there was a design defect that was responsible for numerous accidents. A lawyer can often help you assess the facts and determine whether it was “all your fault” or someone else at least shares some of the responsibility.
Second, even if the accident was all your fault, it is possible that someone else is responsible for the extent and severity of the resulting injuries. For example, it may have been your fault that you got into an accident with your pickup truck, but because the gas tank was in an unsafe place and broke during impact, it may have turned a minor fender bender into a major catastrophe. Or perhaps your local emergency room sent you home without telling you the danger signs you should be aware of, or perhaps your HMO wouldn't authorize the tests your doctor felt should have been performed? Again, an attorney can help you evaluate matters.
Third, if anyone else was injured, or any one else's property was damaged in the accident, you may be fully or partly responsible for the injuries, at least to the extent that they will not be covered by your insurance company. A lawyer can help make sure your insurance company will stand by you, and may be able to help you protect your rights and assets.
What about accidents that result from an "act of god"?
If an “accident” is truly “an Act of God”, while your own insurance might pay for some of the damage, you can't try to go after God — no one has ever been able to bring God into court. However, just because the accident may have been caused by an Act of God” that does not mean that there may not be someone else responsible for the damages that the Act of God created.
For example, in a widely publicized disaster, a group of foreign tourists were visiting Arizona. Their guide, disregarding the advice of natives to the area, led them through a narrow canyon during the rainy season. A rain storm 15 miles away created a flash flood that killed the tourists. While the storm and flash flood were acts of God, it may well be that the guide and his employer probably will be held legally responsible for not exercising due care by permitting the group to tour through the canyon at that time of year. Similarly, if a builder does a shoddy job so that during a typical storm – which of course is another “Act of God” — the building blows down, the builder may be responsible for the damages resulting.
What about accidents resulting from defective products?
Other than tobacco companies, few manufacturers set off intentionally to create and sell an inherently dangerous product and conceal it's dangers. Yet there are many products that do injure people, despite reputable manufacturer's efforts to create good products, and all sorts of government regulations designed to make products safe and well labeled.
If you use a knife to slice a bagel, and cut your hand in the process, neither the manufacturer of the knife, nor the bagel bakery, will likely be held responsible. But if the knife snaps and injures you because of a defect in manufacture, the manufacturer and possibly the distributor and the store that sold it to you will be liable. Similarly if the bagel contains impurities that make you very ill, the bakery may be liable.
If the products do not meet the standards set by the government, or if required government clearance of a product (such as a new drug) was obtained by suppressing negative test results, there will clearly be liability on the part of the manufacturer. A lawyer can assess the facts and circumstances, and also candidly evaluate what a likely recovery might be.
The Law Offices Schiller, Kessler & Gomez, PLC provides aggressive and effective legal representation to our clients with the highest standards of excellence, compassion and integrity. We always provide personalized attention and deliver prompt communication so that our clients always know where their case stands. Contact our offices anytime to schedule a free consultation.