Unfortunately, or fortunately, depending how you look at it, chances are most people reading this blog are not an attorney. If you are one of those readers who are not an attorney, you would be well-advised to heed the following warning: “It is NEVER, EVER, EVER, EVER too early to investigate the need for and/or retain an attorney for a legal matter.” That is not to say you need to retain an attorney for every legal matter. There are matters that are so minor an attorney is not needed, the paper cut caused by a defective envelope. However, you should, at the very least, investigate the need to retain an attorney if there is any substance to the situation. This is especially true for any claim that will fall under a contingency fee agreement (the lawyer will not charge a fee or costs UNLESS a recovery is made on your behalf). In a matter involving a contingency fee you have nothing to lose and everything to gain by hiring an attorney. This article will focus on why it is imperative that any who themselves or whose loved one has been mistreated by an insurance and/or an oil company, was injured in motor vehicle accident, dog bite, slip/trip and fall, or explosion, at the hands of a medical professional, or is physically or emotionally injured in some other event, to IMMEDIATELY contact an attorney.
Five of the countless reasons why you should immediately investigate and/or retain an attorney when harmed by another party are:
1) No fee or costs will be charged unless a recovery is made on the client’s behalf. The fees in a contingency matter are only a percentage of what is recovered. The attorney will be entitled to be reimbursed litigation costs only if there is a recovery. Thus, the client can be assured they will never have to pay anything out of his or her pocket, regardless of whether the attorney can help or not;
2) Locations can change, memories do fade, and evidence may be lost on every minute of every day after an incident. I have been involved in a number of cases in which the location of the accident is changed either by outside factors or parties involved in the matter. For example, a property owner may change the defect to try and deny the defective condition existed on the property or may remove it to prevent others from being injured. I have had the location of motor vehicle accidents changed by a pre-scheduled alteration by Penn DOT, which was not always a party to the case. I had cases in which Penn DOT had been scheduled to repave the road, change the traffic signs and make other changes to an accident scene before the incident in question ever occurred. Whether the changes were intentional or not, the changes will impact the injured party the most. This is because the injured party has the burden of proof. Thus, if you are trying to proof a sidewalk was defected on a property, not only do you need to be able to show the defect existed on the day of the incident, but you must establish the specifics of the defect. For example, a height difference caused by a shift in a concrete slab may or may not be a legal defect, depending on the size of the height difference. If the defect is fixed by the property owner who has had no notice of the fall before photographs and/or measurements can be taken, you will likely lose that case if you are not able to proof what the existing height difference was at the time of the incident. Additionally, you will want to get statements from witnesses, because memories DO FADE over time. Even when the witness wants to be helpful, they simply can’t because the memory has faded and changed over time. In most cases, the witness statements will prove invaluable with a witness whose memory has faded innocently and can be refreshed by the statement or will help with a witness whose memory has “conveniently” faded over time but is confronted with the statement given soon after the incident. I have clients and tortfeasors lose and/or destroy evidence before my involvement, unknowingly and knowingly, which could have huge ramifications on the case. If the tortfeasors are not put on notice of the claim, the destruction and/or loss of the evidence may have no impact on them at all, although they lost or destroyed evidence. Thus, it is imperative to get an attorney involved early on to make sure the evidence is properly preserved;
3) Everyone else’s rights are being protected but yours are not. Generally, the other party’s rights and interest will be protected by their insurance company. The tortfeasor, the party that caused the harm, and his/her insurance company have the same motivation and interest; to limit the total amount of your recovery. They are united in their goal to take whatever steps necessary to limit and/or completely eliminate any recovery on your behalf. The insurance company doesn’t want to have to pay a claimant any money and their insured, the tortfeasor, will be concerned of its own personal liability over the amounts of the available insurance. Even with a party that you would think will look out for you, they may not.
For example, a person injured on a third party’s property while in the scope of the job cannot assume their employer will look out for them. This is true even though its employees have been injured trying to make a profit for the employer. The employer may be concerned with a worker’s compensation claim or its own potential liability to third parties involved in the same incident. Even an injured party’s own insurance company can’t always be trusted to protect the injured party’s interest at times. For example, in a car accident, an injured party who has UIM/UM coverage can’t expect its insurance carrier to protect the clients’ interest. With UIM (Underinsured Coverage), the injured party’s insurance company will be liable to its injured insured for any amount of damages over the tortfeasor's liability policy. Thus, the injured party’s insurance carrier will be motivated to insure the insured’s injuries are limited and/or lessened, so that the value of the injuries/damages are less than the amount of the tortfeasor’s insurance coverage. I have had cases when the matter is being investigated by independent parties that still show the need to hire an attorney early in the case. I have received police reports that concluded incorrectly that my client was at fault for the incident. In one case, the police improperly calculated the speed of my client’s vehicle in their investigation. Photographs of the scene taken by our investigator within days of the incident offered evidence as to the correct length of our client’s skid mark, which supported our position that the police had used an incorrect length for the skid mark to calculate my client’s speed. In another case, the investigating officer didn’t do a thorough investigation and didn’t discover an independent witness who offered evidence a truck driver was not providing correct information to the investigating officers. Before the independent witness was discovered, the police incorrectly conclude my client was at fault for the incident that killed him. However, unlike all of the above examples, an attorney hired for an injured party will make sure to protect the party’s interest. That is insured because the contingency agreement confirms that the attorney receives a percentage of the recovery on behalf of the injured party. Thus, the higher the recovery to the client, the more the attorney will receive. I can assure you that I and the other attorneys at our firm are driven to get our client’s the best result possible because of the trust the client has placed in us, our pride to do the best job possible and/or our completive drive not to lose. For those of you who are reluctant to think that statement is nothing more than some kind of cheesy sales pitch, I can only assure you that is what drives the attorneys at this firm and remind you that regardless of the same, the contingency agreement confirms that an attorney will be driven to get the client the best result possible;
4) There is no such thing as an “open and shut case.” Very seldom do people admit they are at fault once the dust settled. I can’t count the number of times my client said: “Don’t worry this is an open and shut case. The other side admitted to me this was their fault,” or something similar. Often, the police report doesn’t reflect the same or once the person understands that they are liable for any recovery over the amounts of their insurance coverage or they think they could lose their job because of the incident etc., they become far less forthright. Soon thereafter, that “open and shut case” becomes a heated and contested claim, and evidence that was not collected because it was an “open and shut” case is lost forever; and
5) There is no such thing as an “open and shut case,” even in “open and shut cases.” Some aspect of virtually every claim WILL BE CONTESTED, even when most of the facts are not at issue. I can’t count the number of times I had to ask a client why they didn’t get an attorney sooner, while I explained the negative impact of the same. They almost uniformly say that the other side admitted to the police it was their fault or they admitted certain facts that show their fault, only have the other sides insurance company dispute liability and point to other factors to raise an issue of liability. Thus, the other sides insurance company has progressed knowing its intention to dispute liability and collected the evidence to support its version. However, the injured party sat back waiting to be paid for the injuries damages they suffered, because, after all the other side “admitted it was their fault.” Additionally, even when the police report, defendants’ accident report, the OSHA investigation or some other investigational agency finds the other entity at fault or the other side and their carrier admits fault, that doesn’t mean it is an “open and shut case.” There will be other issues. For example, the issue of the extent of the damages. One might wonder how the other side can contest the injured party suffered a broken leg when the bone was sticking out their leg at the scene and the x-ray showed there was a fracture to the leg. Even in a case where the liability and the injuries suffered are conceded, there still is not an “open and shut case.” The impact on the client are routinely contested. I have had countless clients examined by doctors hired by the opposing counsel or insurance company. Of all the hundreds of exams I can recall, only a handful of times did the opposing doctor agree with the treating doctor as to the extent of the injuries and only one or two agreed on the impact of the same. Even in those cases, when the doctors agreed to the impact of the injuries, the issue of what is fair compensation to my client was disputed. I can assure you the dispute was not that the insurance company was willing to pay my client too much. Insurance companies are not known to open their checkbooks and ask people who have been severely injured what would be fair value for the claim. I have always had to wonder if the adjustors would have thought the fair value for the stranger their insured injured would be the same if the same person injured one of the adjustors’ own loved ones. This is not rhetorical question; the answer is they do not. Thus, in order to be able to get fair compensation for a client, we have to start preserving evidence of the damages right away. The opportunity to photograph and demonstrate the progression of scar is lost as time passes. The ability to video the day to day impact an injured leg had on a person is lost as the recovery of the injured leg progresses. Thus, one wants to have an attorney involved very early, even in those “open and shut cases.”
The above are just five of many reasons why you should immediately investigate and look to retain a lawyer immediately following an accident. In a perfect world, we could all rely on a number of things when we are harmed or injured. We could rely on the other people in our community to accept responsibility for their actions. We would be able to rely on the insurance companies to fulfill the obligations to fairly and reasonably pay the claims of the injured people. We could rely on others to treat us as we would treat them. We could rely on nothing to impact our claims, such as a malicious intent to destroy evidence or an innocent change of evidence. We could rely on investigators to be perfect in their investigation. However, this is not a perfect world, so it is NEVER, EVER, EVER too early to retain an attorney after you are injured or harmed by somebody else, because by not hiring an attorney early on a client has everything to lose.