Articles
February 20, 2019

Should I Sue For Personal Injury? Part 5

Does it ever make sense to negotiate on my own and avoid attorney fees?

In practicing personal injury law in Vermont for more than three decades, the questions I hear most frequently are:

Here are my thoughts on the fifth question, offered with the intent of helping an injured person to better understand and successfully navigate his or her legal options.

Does it ever make sense to negotiate on my own and avoid attorney fees? 

Insurance companies typically will try hard to settle personal injury claims quickly, before the injured person contacts a lawyer. But, it can sometimes take months, even years, before the consequences of an injury are fully known. For example, in brain injury cases, the injured person may be told that most people recover from a concussion in less than three months, only to find out over a year and a half later that he or she is in the minority of patients that do not recover and will therefore have a permanent injury.

Once you have accepted funds from an insurance company for your injury and signed a release, you cannot go back and argue that you did not know your injury was so serious at the point when you signed the settlement papers. For this reason, good lawyers will tell you to let them collect the evidence needed to make a claim and wait to resolve the claim until your prognosis is clear.

Work with the lawyer on the fee arrangement

There can be situations where settling early and not signing up with a lawyer under a contingent fee arrangement makes sense. One example would be where a defendant was clearly negligent, and the losses caused by the negligence are great, but the available insurance coverage is very limited. In those situations, it may be worth consulting with a lawyer on an hourly basis to determine whether there is any other insurance or assets. If an experienced lawyer shows an insurer that a case is worth far more than the available insurance, the insurer may be willing to offer the policy limit for an early settlement. In those circumstances, you are better off if you can avoid paying a third of this limited recovery to an attorney under a contingent fee arrangement and can instead use the funds where you most need them.

Under-Insured Motorist Insurance

There are also cases involving multiple insurance policies. As discussed earlier, you may have “under-insured motorist” (UIM) insurance that responds after you have exhausted the policy limits of the negligent driver. In cases involving serious injuries where the negligent driver has low policy limits, it is often possible to recover those limits early on and then focus on obtaining additional compensation under your UIM policy. In that situation, you may want to talk to your lawyer about taking less than a full contingent fee, or waiving the fee altogether if the policy is tendered right away, with respect to the recovery from the under-insured driver.

In the end, it is always best to consult with an attorney before signing any papers from an insurance company concerning your personal injury claim. Most experienced lawyers will explain the factors I have discussed above without charging you, will make sure you have accurate information concerning insurance and assets, and will guide you through the process if direct negotiations with the insurer make sense.

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