Q:

Do I need a lawyer if I've been hurt in a car accident?

A:

Many people seem to think it’s tacky or money-grubbing to hire an attorney when they’ve been in a car wreck. While there are those people who do use an accident as an opportunity to try to “cash in” for undeserved money, the fact of the matter is that compensation was built into the very laws that govern our automobile use.

1. A driver is mandated, by law, to be covered by insurance. 

That is not only for the damage they might to do the car of someone they run into, but also to the occupants of the car they run into for the medical bills incurred because of the wreck, as well as for pain and suffering. When you hire an attorney, you’re not attacking someone or taking advantage of the system; you’re using the system as it was intended and designed. Accidents happen, and society legislated mandatory insurance to make sure that when they do, people’s lives aren’t ruined financially.

2. Hiring an attorney to represent you isn’t a way to get rich unfairly

It’s a way to make sure that your medical bills from the accident are covered and that you are properly compensated for the degree of your injuries. I often have told clients in minor accidents who have inquired about the “big money” they see on other lawyers’ TV ads, “You don’t want that big money; trust me. Anyone who gets ‘rich’ from an accident is in significant pain the rest of their lives.” As your advocate, an experienced attorney fights on your behalf to ensure you are properly compensated. Each case is different, but each time, the attorney’s duty is to use his knowledge and expertise to get you the best settlement he can.

3. You need a lawyer because being in an accident can be a financial disaster for you even when it’s not your fault.

Having someone run into you throws your entire life out of whack. You still need to get to your job (if you can still work), you need to get your car repaired (if it can be), you need to pay your bills, but now you need to figure out about doctor’s appointments and wrangling medical bills. You have no idea how many different places will send you bills and they will take their time getting the bills to you so that by the time you think everything’s been covered, in comes another one. You’re already stressed out because of the accident and how it’s affected your life, so wading into uncertain waters and trying to talk to the insurance company of the driver that hits you is stressful as well. Without counsel and an advocate, you might very well end up losing money because of an accident that was not your fault. Don’t let that happen to you!

4.  The Other Guy’s Insurance Company is NOT your friend. They’re his friend.

The insurance company of the driver that hit you will contact you very soon after the accident. They will be friendly and offer to take care of all the medical bills, of course, and to give you a few hundred or few thousand dollars to make up for the inconvenience of the accident. DON’T TAKE IT!!! I know it’s obvious, but the other driver’s insurance company is not there to be nice to you. They’re there to keep the amount they pay to you as low as possible. They’re required, by law, to pay for the medical bills, and your pain and suffering are subjective. Even if you don’t feel you’re hurt much, you still shouldn’t negotiate with them. You need a lawyer.

5. You might end up paying to have been in an accident

If you take the insurance company’s offer, you end up signing what’s known as a “release” before they’ll give you a check. That release means that if all the bills from your accident haven’t been accounted for (i.e. some come in after you’ve signed the release), you’re personally on the hook for them.  Also, accidents have a way of causing injuries that linger far longer than expected or that arise days or weeks after the accident. Signing the release and accepting their money prevents you from ever being able to get paid back if you have to do follow-on medical treatment. Additionally, without a frame of reference (knowing the “market value”) for pain and suffering, you could be leaving a significant amount of money to which you are entitled.

Don’t do the insurance company a favor by helping them keep the money they should be paying you!

Q:

How long will it take to the end?

A:

When folks have been hurt in a car accident through no fault of their own, they often wonder, "how long will this take to get resolved?" Unfortunately, there is no one answer since no case is the same, but there are six general steps to a car wreck case that can give one an idea of where he or she is in the process and how much longer they have to go.

1. Treatment (Depends on Injuries)

By the time you've got an attorney, if you haven't been to a doctor already to get checked out, he will probably advise you to do so. Usually, your doctor will refer you to another health care provider for the treatment. That follows on treatment is dictated by your injuries so the time frame varies. Treatment is usually the longest portion of your case.

2. Medical Records and Bills (1-2 months)

While you're treating, once you've signed with an attorney, the first thing he does is request medical records and bills from everywhere you've been seen in connection with the accident. If you go to the ER and have X-Rays taken, that can mean asking for separate bills and records from the hospital, the radiology department, and the ER physician. Additionally, their billing departments are oftentimes separate from their records departments or handled by other companies altogether. It can get quite confusing and seemingly endless for those who haven't done it before. Because of the massive volume of requests the medical providers get, it can take upwards of two months for the bills and records to get back to your attorney. As, most of the time, your treatment will last at least that long, that's why they make all those requests at the beginning, so there's no waiting for the next step and they can proceed. Sometimes though, the medical providers can't get the records and bills in and have to be re-requested multiple times. It's frustrating for everyone, especially the attorney.

3. Release (2 weeks to 1 month)

When you are "released" from your ongoing treatment (finished), it takes anywhere from 2 weeks to a month for the health care provider to finalize your records and bill and send them to your attorney.  Hopefully, those are the only records/bill the attorney is waiting on so that he can begin reviewing your overall case file.

4. Review and Demand (usually 1 month)

Depending on the severity of your injuries, your case review and then the drafting of your demand packet should not take your attorney overly long to perform. The real addition to time comes once it's been sent to the insurance company. The adjuster has hundreds, if not thousands of case files in front of him and it takes him time to review yours, usually about two weeks after it's been mailed to him.

5. Negotiation (1 to 2 months)

The time for negotiation is absolutely dictated by the specifics of individual cases, but for a standard case, which includes only minor soft-tissue damage and a month or two of follow-on treatment, it usually takes a month or two. If your client sent an actual offer with your demand package, then the insurance company will begin with a counter which will be very low. Except under extraordinary circumstances, the adjuster and the attorney both know that neither is accepting the first offer either make. It takes several back-and-forths to get to an agreement and because of the workload of each and an awful lot of phone tag, that's what accounts for the time.

6. Settlement (2 weeks to 1 month)

On a normal case, once your attorney comes to you with what he feels is the best settlement offer he can get, and you approve it, the insurance company will require you to sign a "release", which states that the matter has been concluded once and for all for that amount of money and that you cannot re-institute suit against them before they will send a check. By the time the verbal agreement has been made, clients are usually ready for everything to be done with and they want the check in ASAP. Unfortunately, once your attorney has let the insurance company know you've agreed to the settlement, he has no part to play in their sending the release. They don't work for him and he can't make them send it any faster than what they're going to do. Because insurance companies are so large and handle so many claims it can take a week or more for them to send the release. Once that arrives, your attorney will have you sign it and then fax it back and tell the adjuster to send the check. As with the release, once your attorney has requested the check, it is out of his hands. When it arrives, your attorney will let you know as quickly as possible. As personal injury attorneys work on a contingency fee (a percentage of recovery), they don't get paid until you do and they have every motivation to get that check in your hands as fast as possible. ____________________________________________________________

The above is a general outline for a somewhat standard car accident case. Assuming two months of follow-on treatment, it can take 4-6 months to come to an agreed settlement on the case and then another 2 weeks or a month to get the settlement check. To reiterate, every case is unique, so if your case falls outside of that window, that doesn't mean that it's going badly. Talk to your lawyer to find out where you are on the timeline.

(7. Other Factors in Non-Standard Cases)

Covenants Not to Execute 

If your injuries were so bad that they exhaust the amount of money available from the at-fault driver's policy AND you have under-insured motorists (UIM) coverage on your policy, you will have to settle with their insurance company BEFORE you can come to an agreement with yours on your UIM policy. When you come to an agreement with the at-fault driver's company, they will send you something called a "covenant not to execute" instead of a "release" before they send you the check. Once that's signed, your attorney can then begin negotiations with your UIM carrier. Ordinarily, he will have already sent them a demand packet (at the same time he sent one to the at-fault carrier) so the timeline picks up with them in the negotiations stage. That said, while it does add time to your case, you will still get the proceeds from the at-fault carrier once you sign the "covenant not to compete." You will get an additional check from your UIM carrier once you have come to an agreement with them.

Trial

Sometimes, no matter how reasonable you and your attorney are, the insurance company will not budge off of an offer you cannot accept. If that's the case, then a trial is your remedy. Because each case is different, there is no way to say how long it will take to get to trial (prior to trial there are depositions, various motions, etc).

Q:

What should I do at the scene of a car accident?

A:

If you've been in an accident in South Carolina, here are five things you should do at the scene [according to the SC Department of Motor Vehicles' Driver's Manual and the SC Bar Association]

1. Do Not Leave the Scene of the Accident

S.C. law requires you to stop your vehicle if it has not already been stopped by the accident. The law also requires that you move your vehicle from the roadway to the shoulder after a collision. Aid the injured to the degree that you can that will not cause more harm unless necessity requires so (e.g. they are trapped in a smoking vehicle). Protect the accident scene as much as possible. If you have flares, flashing lights or a flashlight, use any of these to warn others that there has been an accident.

2. Report the Accident to the Police

In the event of an accident, notify law enforcement as soon as possible, regardless of who is at fault in the accident. This is to ensure your safety and to prevent traffic congestion, which can cause more collisions. Also, the police will need to investigate the scene to determine fault.

3. Do Not Admit Fault

South Carolina law requires the driver of any vehicle involved in an accident to: give his or her name and address; provide the registration number of the vehicle he or she is driving; and to show his or her driver’s license. Every law enforcement officer who investigates an auto accident must file a written report. You are obligated by law to assist an officer in this investigation by answering questions and discussing the circumstances. Be aware that any statement can be held against you. You should not admit or sign anything even if you think you were wrong. You may learn later that you were not at fault or that the other driver was equally at fault.

4. Exchange Information With the Other Driver

Identify yourself to the other driver by giving your name, address, driver’s license number and vehicle license number. Exchange your insurance company name and policy number using your insurance card or proof that the vehicle is insured. Additionally, the investigating officer will issue a form (insurance verification) to be completed by your liability insurance company verifying that insurance coverage was on the vehicle at the time of the accident.

5. Obtain the Names and Addresses of all Witnesses

Get the names and addresses of all witnesses. After writing down the names and addresses of any witnesses, try to get statements of what happened. If they will, have the witnesses write down this information at the scene. The investigating officer will also obtain this information. Always have a pencil and pad, as well as this pamphlet, in your car.

Q:

What will insurance companies try to use against me?

A:

When you've been in an accident that you didn't cause, it is important to remember that the at-fault driver's insurance company is NOT your friend. They’re there to keep the amount they pay to you as low as possible. They’re required, by law, to pay for the medical bills, but your pain and suffering are subjective. As such, their negotiating tactics can be somewhat harsh. Having a lawyer who knows the ins and outs of these cases is imperative. Even so, they will try to use a number of things against you to lower the value of your case. A good lawyer knows how to navigate around these issues, but they are important to know.

1. Gap in Treatment

It is absolutely vital to get yourself checked out as soon as possible after an accident. If you wait, even days, the insurance company will assert that your injuries came from another source and reduce their offer to you accordingly. The longer you wait, the more they reduce their offer. This is also true if you get checked out immediately after the accident but then take a substantial amount of time to seek treatment (weeks or months). While a good personal injury attorney tries to get your case settled as quickly as possible for the most amount he can, ultimately, he needs to be able to prove your case to a jury, should it proceed to trial. The reason the insurance companies reduce so much is that they feel comfortable that juries will view gaps in treatment as someone trying to cash in on an accident they weren't really hurt in.

2. Seat Belts

If you were not wearing a seatbelt in the accident, the insurance adjuster will try to claim that you contributed to your injuries and reduce their offer or refuse to pay. However, SC state law states that violations of seat belt law can't be used in court: SC Code 56-5-6540(c) "A violation of this article is not negligence per se or contributory negligence and is not admissible as evidence in a civil action." Your lawyer will know this and set the adjuster straight.

3. Lack of Damage to Car

Where someone is claiming significant injury, but there is no visible damage to the car, juries will often find for the defense instead, believing that the plaintiff is faking his or her injuries in order to get paid. While that may not be true, that's a bias that juries have tended to show and so must be taken into account. While lack of damage to the car is not a case-killer, per se, it does make it more difficult for the attorney to prove to a jury and can involve using expert witnesses who will add to the costs of your case substantially. The insurance company knows this and will try to leverage those increased costs against you by lowering their offer.

4. Discounting Physical Therapists or Chiropractors/Not Counting Certain Costs

If there are no broken bones, most accidents result in injuries to "soft tissue" (muscles, tendons, ligaments, organs, etc). Depending on your injuries your physician will usually refer you to a physical therapist or a chiropractor so that you can get follow-on treatment. While physical therapists and chiropractors are absolutely vital health care industry providers, the insurance companies are aware that many potential jurors view them as being "less than" or "not really" doctors and will, therefore, try to reduce their offer for your treatment. Additionally, sometimes the insurance company will argue that while the physical therapist or chiropractor treatment was overall acceptable, there were unnecessary treatments involved that they are not willing to pay for.

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What all of these factors the insurance companies try to use against your case all have in common is that they ultimately are implying that a jury will side with the insurance company. Because of that, it is vitally important to have a lawyer who not only knows the issues involved but also has the experience to explain them to a jury and help you attempt to prevail should your case need to go to court.

Q:

What will the lawyer use to evaluate my car accident?

A:

In South Carolina, personal injury attorneys, across the board, use three main criteria to determine if your case is worth taking when they review your car wreck case. Knowing if you meet those criteria will help you get an idea of the potential success of your case.

1. Were You at Fault?

Simply put, if you were at fault in the accident, that most like prevents you from having a case. Fault is not determined by you though, nor by the other driver. It is determined by the police officer at the scene. Never admit fault to him. Not only can doing so potentially increase your liability, but, often times you may not be aware of all the facts of the accident (e.g. they were looking down at their phone, perhaps), or simply have gotten them wrong (e.g. you may have had the right of way but thought you didn't). The police officer's job is to know how to reconstruct the conditions of the accident to determine who was at fault.  He will issue a form to you and the other driver called an FR-10. On it, he will indicate who he believed to be at fault.

If you are listed as not contributing to the collision, you potentially have a case (depending on the next question below). On the other hand, while there are times that the officer makes a mistake and incorrectly names a driver at fault when he was not, being listed as at fault on the FR-10 usually means you do not have a case. 

2. Were You Hurt?

If you were hurt in an accident you didn't cause, then you most likely have a case. It's as simple as that.

If you were not hurt in the accident and didn't go to get yourself checked out by a medical professional afterward, most lawyers will not take your case, even if someone else caused the accident. South Carolina law does not permit you to recover if someone runs into your car and you are fine afterward. Their insurance does have to pay for the damage to your vehicle, but in order for you to receive additional payment, you must have been injured in the accident.  

Regardless of if you were hurt or not, it is only prudent to get yourself checked out as soon as possible by a medical professional if you were in an accident. Injuries are not always immediately evident and can take days or weeks to become noticeable. If you get checked out and get a clean bill of health, then the at-fault driver's insurance company will pay for the medical treatment you received. If they refuse to do so, an injury attorney may be able to help you.

3. Is There Visible Damage to Your Vehicle?

While the other two criteria are necessary to determine if you have a case, a lawyer will often want to see the damage to your vehicle. This is because, ultimately, he needs to be able to prove your case to a jury, should it proceed to trial. Where someone is claiming significant injury, but there is no visible damage to the car, juries will often find for the defense instead, believing that the plaintiff is faking his or her injuries in order to get paid.  While that may not be true, that's a bias that juries have tended to show and so must be taken into account. A lawyer may take your case, even if there isn't significant damage to your vehicle, but in doing so, he may tell you that not having significant damage will probably reduce the amount he can recover for you.

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While the three criteria above are by no means the only criteria personal injury lawyers use to evaluate your case, they are the most critical. Not all lawyers weigh the criteria the same, so just because one lawyer decides not to handle your personal injury case, that does not mean that you do not have a case.