I’ve been in a car accident? Now what do I do?
1. Make Sure Everyone Involved In The Accident Is OK and Minimize The Risk Of Further Injury: Including this as a tip is, on the one hand, patronizing, since we all know this and most people do it instinctively. On the other hand, if I don’t include it, then it means I’m a jerk. Be a good person and make sure everyone is ok. If someone is severely injured, call 911. After that, if you are trained to help, then help. Do not move anyone. Minimize the risk of further injury to yourself and the injured by turning on your hazard lights. Use road flares if you have them. I have represented a lot of people who are severely injured while on the side of the roadway: police making traffic stops, motorists changing tires, you name it. It is not uncommon. Don’t take a bad situation and make it worse. Take precautions and protect yourself and others from further injury.
2. NEVER Admit Fault And DO NOT Apologize At The Scene Of The Accident: NEVER admit fault at the scene of an accident. Admissions of fault fall under an exception to the hearsay rule, meaning if you admit fault to another at the scene of an accident, it can be used as evidence against you. Even if you think you are at fault, further investigation may turn out to show the other driver to be a more significant cause of the accident than you. NEVER admit fault.
Even though under California law an apology at the scene of a collision is no longer considered an admission of fault, it is best just to make sure everyone is ok and to save the apologies for later. Here’s why. What you say: “I’m sorry.” What the other party hears you say: “It was my fault.” And that’s what goes into the police report and that’s what the other party will testify to should liability become disputed. “Oh yeah, absolutely, he said it was his fault.” Cases have enough inherent difficulties and it’s best not to create issues that can be avoided. There will be a time for apologies. Immediately after the collision is not one of them.
3. Call The Police And Insist That A Police Report Is Created: No police report? Defense lawyers love this. Aside from the liability issues it invites, even more problematic is the inevitable defense theme: no report, no injury. Defense lawyers use it because it works in front of skeptical jurors who are already pre-disposed to deny you a recovery. All too often the police responding to the scene of an accident will not create a report claiming it’s department “policy” not to if there are no injuries reported. It’s not a policy. It’s laziness. You need to INSIST that the police do their job and that they write a formal report. They work FOR YOU, not the other way around. Tell the police you are unsure at the moment if you have any injuries and that you want the collision documented. It is the honest truth.
Even if you don’t think you’re injured at the time, many injuries, oftentimes severe injuries, are not immediately symptomatic. Sometimes it has to do with the adrenaline rush and other times it has to do with the nature of the injury itself. I’ve had clients pain-free after a collision, only to become immobilized hours later with a disc rupture requiring surgical intervention. A more typical example is a whiplash injury. These injuries do not produce pain until the fluid leaking from the damaged discs, tendons, ligaments and muscles reach a critical mass in the body. This takes time.
Err on the side of caution, and make the police do their job. Otherwise, you have a defense armed with the slogan “No Report, No Injury.” And trust me, they use it and use it often to good effect in front of jurors.
4. Document The Accident: Fully document the scene of the collision. Do a bit of police work on your own behalf. Good photographs go a long way. We live in a digital age so you should have a camera phone, otherwise it is good advice to carry a disposable in your glovebox. Along with that, our society has come to expect instant gratification and multimedia entertainment. Juries have come to expect the same at trial. Take pictures AND video of the damage to all the vehicles from as many angles as possible. Photograph and video the intersection, the road conditions, speed limits, traffic control devices and anything else that helps to reconstruct the scene. Make notes about the lighting, the weather, and how the accident occurred. Also, be sure to get the names, addresses and phone numbers of ALL witnesses. Witnesses aren’t always going to wait for the police to show up, and the police aren’t always going to get information from every witness or document that information accurately. Of course, you should also gather and exchange the other standard information with the other parties involved such as name, address, driver’s license number, insurance information, and license plate number. If they do not own the car, make sure they tell you who does and get as much information about the owner as possible.
5. Go To The Doctor: If something hurts, or doesn’t feel right, if you hit your head or have a loss of memory or consciousness, have a headache, blood or fluid in your ear, dizziness, ringing in the ears, disorientation, nausea, or confusion, whether it’s at the time of the collision or after, go see your doctor. Don’t wait. It may seem like obvious advice, but nothing will wreck your case, and your health, quicker than failing to get the appropriate medical treatment. Insurance companies look at your medical records to determine the nature and extent of your injuries. It is important to see things from their perspective. If you didn’t go to the doctor until two days, let alone two weeks, after the accident, then it’s because you weren’t hurt that bad. In fact, you probably weren’t hurt at all. The insurance company will pigeonhole you into a “jackpot justice,” “malingering,” “faker” faster than you can say “corporate profits.” This issue is bread and butter for the defense and I have to address it in nearly every single case I handle. Protect your health and your interests and go see a doctor as soon as you possibly can whenever you have been involved in a collision.
And by doctor, I mean DOCTOR. Do yourself and your attorney a huge favor and stay away from the chiropractor, at least initially. During jury selection when I am gauging the potential jurors’ sentiments I ask, “By a show of hands, who here today thinks that chiropractic care is mostly ‘hocus pocus?’” It is very common for ½ to ¾ of the jurors to raise their hands. Guess what? That’s bad. If your primary medical provider was a chiropractor, not even Johnny Cochran is going to save you from that one. Some of these folks are going to end up empanelled on the jury deciding your case. If you love your chiropractor, talk to your regular M.D. or D.O. first and have them prescribe it. Long story short, your M.D. needs to be the point person managing your care, determining your ability to work, and recommending treatment.
Clearly communicate your symptoms to your doctor and medical providers. If it’s not in the medical record, it didn’t happen. Remember, the insurance company is relying on these records to determine what your injuries are, so speak up, be thorough and be honest. If you were in excruciating pain, but you tell the doctor your pain is mild, guess whose version the insurance adjuster is going to believe? Hint: It rhymes with doctor. Your medical records are the primary evidence in your injury claim. If your symptoms are not improving or get worse, tell your doctor so that appropriate care can be recommended.
Go to all of your appointments. If you have gaps in treatment or you start missing appointments, the insurance company will use this as evidence that you were not injured.
6. Document Your Injuries And Damages: Personal injury claims are about two things and two things only: 1) accountability and 2) compensation for your injury, i.e. money. If you want to make sure the other party is held sufficiently accountable for his or her conduct and that you get the money you are entitled to, you have to prove your damages. You are entitled to recover for pain, suffering, inconvenience, medical bills, lost wages, and other incidental expenses incurred because of the collision. It’s not a handout. It’s justice and it’s the law.
You have to TAKE PHOTOS of your injuries. Scrapes, bumps, bruises, and swelling all fade with time, but if captured in a photograph are extremely persuasive to the insurance adjusters deciding how to pay out your claim or to jurors deciding your case.
KEEP A JOURNAL that notes the effect your injury has on your day-to-day life. To put it bluntly, keep track of what really sucks about the whole situation. Your memory doesn’t last forever, so write down your experience so that you can be adequately compensated. It will be your job to communicate the impact your injuries have had on your life. Make notes as to the intensity of the pain and what that pain feels like (burning, stabbing, aching, etc). How does your pain or your injury interfere with your life? Did you have to miss important events like graduations, birthdays, or weddings? Did you miss important school or work functions? What types of activities did you formerly do that you are no longer able to do? Did you stop running or exercising? Has it caused you to gain weight? Have you become depressed, nervous, or anxious? Has it caused more severe psychological issues? Have you sought the help of a therapist or mental health professional? If it is a head injury or a brain injury, make a note of the effects.
To insurers and jurors these are invisible injuries because you look fine. What is it like to forget the names of your family members, to have lost the ability to concentrate on simple tasks for more than a few minutes, to be continually fatigued, to have vision problems, or to experience sensory changes and mood swings? Injuries have real effects on a person’s confidence, emotions, career, family, and relationships. It is your job to communicate this burden to the insurance adjusters, lawyers, and jurors deciding what compensation will adequately cover your damages.
Also keep in mind when making your notes that the defense will be able to see them if the case proceeds to litigation, so keep the notes short and simple, just enough to jog your memory. Don’t write anything down in a way that can be misconstrued against you.
TRACK YOUR LOST INCOME AND WAGES. This is especially important if you are self-employed or an independent contractor, as it can be very difficult to quantify your lost income. Be sure to document what employment opportunities you had to forego or contracts that you could not enter. Although not always possible, if you run your own business and you can quantify in real tangible terms what your absence from the business has cost you in terms of your salary or profits, then keep record of it. If you had to hire someone to cover for you, what did that cost? If you are a regular employee somewhere, simply keep track of the days you were unable to work and gather some recent pay-stubs and W-2s.
TRACK MISCELLANEOUS EXPENSES. You are also entitled to recover for other miscellaneous expenses. If you had to hire someone to clean your house, mow your lawn, or walk your dog because you are injured and can no longer perform these functions yourself, keep a record and receipts for all of the services and items you had to purchase to accommodate your injury.
7. Always Talk To A Personal Injury Attorney: Ta Da! Big surprise. You have an attorney writing advice and he thinks you should ALWAYS talk to an attorney (note that I did not say ALWAYS retain an attorney). What a scam, what a jerk. What a piece of roadkill! But wait, not so fast, unless of course, you want your claim itself to be roadkill. Handling a personal injury claim is not a simple task and you are up against insurance companies who spend billions of dollars a year hiring personnel to minimize the amount of money they pay out for claims. You can get sideways in the personal injury claims process and legal system pretty fast if you are not careful.
An initial consultation with any personal injury attorney worth his or her salt is free. When I speak with potential clients, I let them know where their case stands and get them some basic advice on how to proceed or whether to proceed at all. Often times, a person does not need to hire an attorney if they are willing invest a significant amount of time to put their case together and to learn how to properly document and present their case to the insurance company. And for individuals who do decide to represent themselves, I always keep my door open if they have questions about their medical treatment, the settlement value of their case, or if they decide they are sick of dealing with the insurance company and are looking for representation. I chose to focus my legal career in the manner I did not just to pay the bills, but also to help people, and I am always willing to do what I can for people who want to pursue the claim on their own.
Be warned however, that the pitfalls in a personal injury case are many, not the least of which are statutes of limitation. In most types of injury cases in California the “statute” is two years, but in some cases the statute runs in only 6 months. What’s that mean exactly? It means, if you fail to take the appropriate steps, namely filing a specific type of claim or a lawsuit, your case is done. It’s barred. Too bad, so sad. Game over, thanks for playing. Johnny, tell ’em what they’ve won! Yay! Nothing! Claiming ignorance of the law in front of a judge is slightly less effective than claiming the dog ate your homework in high school.
At least talk to an attorney, get your bearings, and listen up so you can avoid any major glaring hang-ups that she can spot for you.
8. Cooperate With YOUR Insurance Company: Every insurance policy that you buy includes a cooperation clause that requires you to assist in the investigation of your claim. In short, comply with the reasonable requests of your insurance company. Allow them to inspect your vehicle, give a statement if asked to do so, and turn over whatever photographs and documents they might request. Be diligent and timely in your cooperation. However, don’t volunteer information. Answer only the questions they ask and provide only those documents they request. If they want copies of your medical bills and records from the accident, then provide them. Failure to “play ball” with your insurer could lead them to deny you coverage, but if you feel the insurance company is prying too far, contact an attorney to help you.
9. Get A Property Damage Evaluation Of Your Vehicle From Your Insurer: If you are not happy with the quote from your insurer, seek appraisals from other reputable mechanics and body shops.
10. NEVER Give A Statement To The At-Fault Party’s Insurer: She may sound sweet as pie or he may seem just like a stand-up dude, but no matter the demeanor of the adjuster on the other end of the phone, remember that the at-fault party’s insurance company is there to screw you, not help you. I put it bluntly because it’s the truth. I see it day in, day out. Don’t want to take my word for it? The information on claims practices are everywhere:
https://www.cnn.com/CNN/Programs/anderson.cooper.360/blog/2007/02/insurance-companies-fight-paying.html
As the injured party, YOU drive the claims process, not the other way around. Almost immediately after a collision, you will start getting phone calls asking for a recorded statement. Do not comply. You are under no legal obligation to provide one. Nothing you say will help your case. Worst-case scenario, you will say something that gives them a basis to deny or reduce your claim. Best-case scenario, you end up in the same position you were in had you said nothing at all. There is no upside for you, so zip it.
Even if it does not provide a basis to reduce or deny your claim, it can serve as a source of contradiction should you later testify at a deposition or at trial and the defense can use your prior recorded statement to impeach your credibility and levy a host of other attacks against you that make you look bad in front of the jury. Remember, insurance companies exist to make money, not to provide you with just compensation for your injuries. They want to find any reason possible to prove you weren’t injured and to reduce or deny your claim. So if the at-fault party’s insurer asks you for a statement, politely decline. Zip your lips and consult with an attorney if you have questions.
11. Never Sign ANYTHING Until You Are Ready to Settle: After the accident, sometimes even before the phone calls start, insurance adjusters begin to mail you written offers to settle your claim (at a fraction of its full value). A quick settlement is advantageous to the insurance company and detrimental to you because it prevents you from fully understanding your injuries, damages and value of your claim. Remember, within the confines of the statute of limitations, YOU control the pace of the settlement negotiations. DO NOT allow yourself to be bullied.
Only settle the case on your terms when you are ready. The appropriate time to settle your case depends on many factors, but at a minimum you need to know the full extent of your injury and damages. Ideally you should have fully recovered or reached maximum medical improvement and have returned to your normal everyday life or have come to fully understand how your life has permanently changed. However, depending on the severity of the injury, and the length of your recovery, you may begin to bump into the statute of limitations for your claim.
If you are approaching the statute of limitations, and have not yet reached maximum medical improvement, or are otherwise not yet in a strong position to settle your claim, it is best to consult with an attorney immediately so she can advise you on how to proceed or file a lawsuit if necessary to preserve your rights.
12. When It Is Time To Settle Your Claim, You Need Prove Up Your Damages By Providing The Appropriate Evidence And By Writing A Demand Letter: Your injury claim will ultimately hinge on proving that the other party was at fault and that you were injured and suffered a loss. If you have made it this far, and are getting ready to settle, it is best to consult with an attorney before you start turning over documents to the insurance company. I am always happy to meet with people and to point them in the right direction if they would like to handle the claim themselves.
In 90% of cases, liability is not going to seriously be in dispute. It is relatively clear from what happened that the other party was at fault. It is in the police report, or the other party has admitted they were at fault to their insurer. When it comes time to recover for your claim, what you really need to prove are your damages. You will need to provide the insurance company with documentation of all your losses. At a minimum, you must provide your medical bills, medical records, and evidence of lost wages. You will have to request your medical records from your medical providers and obtain documentation of the time you were unable to work from your employer. In addition, you will need to produce some type of evidence that proves your salary or rate of pay, such as W-2’s or pay stubs.
If you do not provide these records yourself, you will have to sign a release allowing the insurance company to gather this information on your behalf. If you do this, MAKE SURE the authorization is limited to records related only to the injury at hand and the relevant timeframe. Otherwise the insurance company WILL obtain EVERY document in your file that your medical provider and employer has, again looking for reasons to deny or limit your claim. However, it is my strong recommendation in the interest of your privacy and the integrity of your claim, that you gather these documents yourself and provide them along with a written demand letter.
A demand letter is your time to tell your story, to make your case, and to demand the amount of money you believe will compensate you for your injuries. Use the notes you made and the photographs of your injuries to show and explain how the injury has impacted your life. California Evidence Code § 1152 protects you from the pitfalls associated with giving a recorded statement. Because your demand letter is written for the purposes of resolving a disputed claim, it is not admissible in court for any purpose. That is to say, they cannot use that information to attack you or contradict your testimony in court.
Finally, remember when you write your demand letter, it is a negotiation, so you need to pad the amount of money you demand to give yourself room to negotiate downward as you exchange offers with the insurance company. If you demand $15,000 and will accept nothing less than $15,000, your negotiation will stall faster than a Buick filled with diesel.
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