| Added On February 26, 2010
If you were in an auto accident and injured, the process of making a legal claim for your injuries can be a long and complicated one. If you were seriously injured your attorney will likely suggest you treat for your condition and he/she will take care of the legalities. Your focus will be on getting better and the law firm’s focus will be on developing your case and creating a demand package.
What if your injuries are classified as “soft tissue”? Soft tissue injuries are very difficult cases because the injuries are real…yet the offers for settlement are sometimes even below the medical bills. How is this fair? The insurance companies are businesses. They are not required in California to negotiate in “good faith” with third parties. Their objective is to keep as much money in their bank accounts as possible. They do this by offering ridiculously low amounts of money of “soft tissue” yet real injuries. The greater the injuries the greater the leverage for negotiation. Cases with minimal injuries, delay in treatment, of undocumented injuries to not instill the same fear and provide your attorney with the same leverage to produce the settlement you think you deserve.
First, this is not about fairness. If the insurance companies were going to treat you fairly you wouldn’t even need an attorney. This is about business to them. They know the the economics of litigation rarely yield you the leverage to threaten trial if they don’t raise their settlement offer. Meaning you may be awarded twice as much than they are offering by a jury, but the cost of the litigation will eat up the difference and then some. Second, your attorney is your friend. You and your attorney have the same interests. The compensation your attorney receives, when retained on a contingency, is obviously calculated from your gross settlement. This give your attorney every incentive to maximize your recovery. Therefore, it does you NO GOOD whatsoever to get angry with your attorney because of a low settlement offer from the insurance company. Your attorney, of course, isn’t happy about this either. You are on the same team and the nature of YOUR case and/or the serioiusness of YOUR injury, is not making the insurance company fearful of litigation and is resulting in a lower offer than you desire.
Solution: You may not need a lawyer. If your case is minimal, you should evaluate at the outset if it is worth hiring a lawyer. If you don’t want to hassle with the insurance company on your own and do decided to hire a lawyer than you should have realistic expectations about the process. Work with your attorney to come to a “reasonable” game plan. Weigh the cost & benefits of going to trial versus a settlement. Our firm often encourages clients to go to trial and seek compensation from a jury if the insurance company is being unreasonable. This is based on a “greater good” theory. You may not do better in “net dollars” terms ultimately than you would have done if you had settled the case but at the very least you have done a lot for your community. Your decision to try your case keep the insurance companies honest will benefit society. It makes the unreasonable insurance adjuster more reasonable on the next negotiation.
Remember: Your attorney wants what is best for you. What is good for you is good for your attorney. You truly are on the same team fighting against the 800 pound gorilla. If you are frustrated by the size of your offer you may not have had realistic expectations from the start and/or your injuries may not warrant a larger recover. However, if your frustration is a result of an offer that is not fair, talk to you attorney about filing a lawsuit just to put the insurance company to the test.
Note: Most attorneys require you to advance the hard costs of trial if your case is not catastrophic. The reason for this is simple. There is truly a chance that the cost of litigation will be greater than the ultimate recovery even after a fair jury verdict. Your attorney is already devoting his time to your case on a contingency i.e. he is not being paid until you win or settle. Many attorneys do not want to advance the hard costs of litigation in addition to their time as a loss can be drain the firm’s resources which may be better put toward other serious litigation. Keep in mind, a good attorney should always be receptive to trying your case if you believe the cause is worthy and you are going to advanced the costs.