Well, it depends. In a nutshell, if one has a very small case, settlement before filing a lawsuit should be the goal. If someone has a significant case, a lawsuit should be filed.
Big Case v. Small Case
What’s a big case and what’s a small case? This is a loaded question. There are so many types of injuries. For purposes of this article, an example of a small case would be someone who is rear ended while sitting at a red light. He suffers from whiplash and misses a few days of work. His primary care doctor prescribes physical therapy and pain medication for a month or two. After that, he feels fine. The goal of a case like this one is settlement without filing a lawsuit. Of course, this assumes that the responsible insurance company is willing to settle for a fair amount of money. With many insurance companies nowadays, don’t hold your breath. A lawsuit might be necessary even on a “small” case.
An example of a big case would be someone who requires surgery for his injuries and/or extensive medical care. His activities of daily living are affected for a long period of time and sometimes permanently. In cases involving significant injuries or death, usually it is wise to file a lawsuit. That does not necessarily mean the case will be tried. In fact, it probably will not. However, most “big” personal injury cases require a lawsuit.
On serious personal injury cases, the insurance companies want to “see a show” before they are willing to settle.
Before insurance companies are willing to part with substantial sums of money, they usually want you to jump through some hoops first. “How many hoops?” you ask. Sometimes not many and sometimes WAY too many. They just seem to want to make plaintiffs and plaintiffs’ attorneys work extra hard for a substantial settlement. In my twenty years of practice, I can count my substantial settlements before filing a lawsuit on one hand.
To illustrate my point, I had a case not long ago that was a case of clear medical malpractice. A radiologist misread a chest x-ray of a young man and identified a cancerous legion as “just a spot, nothing to worry about.” A couple of years later, that young man started coughing up blood. That spot was now diagnosed as late stage lung cancer which carried with it a very low rate of survival. If he was diagnosed a couple of years earlier, he would have been treated and according to science, would have lived a long healthy life. Instead, as a result of this radiologist’s error in reading a chest x-ray, his situation was grim.
The case seemed like clear malpractice to me. I sent the medical records to some experts who all said they had never seen a case of such blatant malpractice. One told me that in the 40 years of doing medical/legal work he had never seen a case as indefensible as this one. I tried to have discussions with the hospital’s lawyers but they were not interested in settlement discussions. So, I filed a lawsuit.
The hospital’s lawyers took more than thirty depositions, family members, treating doctors, our experts, most of who were out of state… After about two years of litigation and thousands of hours and dollars spent, and as trial approached, I got a call from the hospital’s lawyers. They wanted to discuss settlement. Soon thereafter, the case settled for $4 million dollars. I probably would have settled it for less if the hospital’s lawyers were willing to discuss resolution when I first approached them a couple years prior.
The only thing that all this time, money and effort showed was that the hospital’s radiologist blew it. I knew that before any substantial work was done. My experts knew it too. I’m pretty sure the hospital, the negligent radiologist and all of his experts knew it as well.
The only logical reason I could see for all the work performed was that the hospital didn’t want to write a fat check until we gave them a show. I’ve seen this many times in my career on significant cases. In fact, it seems to be the rule rather than the exception.
Will filing a lawsuit increase the value of a personal injury case?
Filing a lawsuit does not increase the value of a personal injury case per se. However, my strong belief is that aggressively pushing a case towards trial does increase the amount an insurance company is willing to pay to settle a case. That’s part of the reason why I recommend filing lawsuits on more substantial cases, i.e., you can’t push a case towards trial until a lawsuit is filed.
To illustrate, when I was very early in my law career, I represented a man who got salmonella poisoning at a luncheon he attended. In addition to the usual vomiting and diarrhea that he got for a couple of days, this man suffered from a reactive arthritis in one of his thumbs. Essentially, one of his thumbs was rendered dysfunctional as a result of the type of salmonella poisoning he got.
Before filing a lawsuit, I demanded $150,000 and the insurance company offered $7,500. My firm had “round tabled” the case and evaluated at about $75,000. Given the gap between my demand and the offer made from the insurance company, negotiations would have been pointless. I filed a lawsuit. We litigated the case and when it was ready, we were assigned a trial date. Fast forward about a year or so and the day of trial was now here.
I’m driving to trial and rehearsing my opening statement in my head. My cell phone rang. It was the insurance adjuster. He said, “How much is it going to take to make this case go away?” I replied “I’m at $150,000 and you are at $7,500. I think we’re going to have to let a jury decide.” I wasn’t posturing. I wasn’t playing it cool or trying to negotiate. I was shooting straight. I really didn’t think that settlement was realistic. He said, “Will your client take $140,000?” I replied, “Let me check with my client.” When I called my client to obtain his authority to settle, I think he may have dropped the phone out of excitement. The case settled “on the Courtroom steps” as they say. I learned early on that there’s nothing like the threat of a trial to get an insurance company to write a check.
Learning that insurance companies tend to pay more as that trial date approaches was an extremely valuable lesson I learned very early in my career. Not every case that I file gets to the actual day of trial but it just seems that the threat, the real threat, of trial, is what gets insurance companies to pay full and fair value of a particular case.
How Will My Lost Earnings Be Reimbursed?
You may be entitled to recover damages for your lost earnings if an auto accident or other personal injury accident causes you to suffer an injury that prevents you from going to work and earning the wages that you typically would have received if you had not been injured. The party that caused the injury is responsible for the reimbursement of your lost earnings, and can be an individual or a company—depending on the circumstances of the accident.
Lost earnings can comprise lost wages you did not receive for the time period you were unable to go to work, and can also take the form of lost earning capacity if the accident results in you suffering a long-term injury or disability that prevents you from making the same amount of money you did prior to the accident. Lost earnings can also refer to lost opportunities, such as if you missed a job interview because you were still recovering from your injury.
To recover for lost earnings, you must be able to show that the personal injury accident directly caused the injury that prevented you from going to work. In some instances, you may also be able to recover the full amount of your lost earnings for a pre-existing injury if the accident made your pre-existing injury worse and prevented you from going to work or working as well as you did before the accident.
You typically have to be able to present the amount of time you missed from work due to your accident, as well as the total amount of money you would have earned in the period of time you missed due to your accident.
If you are a regular employee, you will need to ask your boss or supervisor for a letter printed on official company stationery that confirms details such as your salary at the time of the injury, the number of hours you typically work, and the number of days you missed due to the accident. The simplest way you can prove your lost earnings is by submitting your most recent paychecks as a form of evidence.
If you are self-employed or are irregularly employed, you will need to present how much work time you lost due to your accident and how much money you may have potentially earned if you did not suffer any injuries. However, you may need to provide documentation to prove your statements, such as invoices from the same time period of the previous year.
If your job was eliminated, were forced to take a lower-paying job, or were unable to return to the same job, you may be able to claim the difference in income between the two jobs, and the money lost during your search for a new job.
If your injury was so severe that you are unable to return to work, you will have to calculate your lost earning potential based on factors such as your age, job skills, employment history, and quality of life earned before the accident.
New Laws May Change Personal Injury Lawsuits
This year saw a glacial shift in the law in Illinois. Before year’s end, Illinois will marry it’s first same-sex couple. Illinois will begin implementing it’s medical marijuana scheme starting on New Year’s Day. Two different penalty schemes will be implemented for speeding in a work zone, depending on whether there are workers present. And drivers may no longer speak on hand-held cell phones while driving.
The City of Chicago has had a ban on driving while talking on a hand-held device since 2006. Over 70 other municipalities in Illinois have similar prohibitions. On August 16, Governor Quinn signed a bill that makes it a crime throughout the State. The penalty is a mere traffic citation, $75 for the first offense with an increase in fine for subsequent offenses. This may seem like an acceptable loss to some. However, another statute going into effect should serve as a warning to would-be scofflaws who intend to be careless and ignore the cell phone ban. Effective January 1st, the crime of using a cell phone while driving is aggravated if a driver is using a hand-held cell phone that causes an accident that results in great bodily harm or death. Great bodily harm will result in a Class A misdemeanor, and death will result in a Class 4 felony. This creates a disincentive for drivers to use their phones, but it may also make suing for personal injury after a car accident easier for plaintiffs and their attorneys.
Negligence Elements and Proving Breach of Duty
Every lawsuit for negligence (including personal injury resulting from an automobile accident) requires the plaintiff to establish five elements to move forward. This is called establishing a prima facie case, and failure to establish any one element will result in dismissal. The elements are:
- Breach of Duty;
- Cause in Fact;
- Proximate Cause; and
In short, everyone has a duty to act as a reasonable, prudent person would in similar circumstances. If you are driving down a highway, you have a duty to do so reasonably under the circumstances. This includes observing a safe and reasonable speed limit, adjusting your turns and lane changes to be safe in under current weather conditions, and obeying traffic signals. If you breach this duty and that breach causes a foreseeable injury to someone, you are liable for that injury and can successfully be sued for it. Establishing breach of duty is often a question of fact that a judge or jury must determine. Another way to establish breach of duty, however, is violation of a statute. If a statute is in place to protect a certain class of people, and the injured party in the accident is a member of that class, the violation of the statute can be used to establish a breach of duty. Under the new law, the protected class is other motorists, passengers, and pedestrians. If a driver violates the cell phone use law and injures another, the law can be used to establish a breach.
Compensation for Concussion Injuries
A concussion presents very serious symptoms and can be life-threatening, especially if not treated in time and appropriately. In this post, Chicago brain injury attorney will discuss what concussions are, how they can affect your life, and how you can recover compensation if necessary.
What is a Concussion Injury?
Strong trauma to the head can cause the brain to get displaced inside the cranium. When it moves back and forth in the cerebrospinal fluid, it can collide with the cranium walls surrounding it. This can result in widespread trauma, similar to a bruise, which encompasses a large part of the brain. Concussions can result from car accidents, sports injuries, and physical assault. Regardless of the cause, a concussion should be immediately treated before any serious medical complications arise.
Identifying signs and symptoms of a concussion
When you hit your head, it may only cause a superficial lump or the trauma can be serious enough to affect your brain. Chicago brain injury attorney believes that it’s important to be aware of the signs and symptoms of a concussion. If someone presents signs of these symptoms, you will know that he/she should be rushed to a hospital immediately.
- Unusual changes in concentration, memory, and/or emotional response,
- Disabling dizziness or headaches
- Altered state of consciousness
- Confusion and/or sleepiness
- Speech difficulties
- Difficulty understanding spoken words or instructions from others
These symptoms may be present immediately after the trauma or may take hours or even days to show up. That is why it is very important to seek medical attention as soon as head trauma occurs.
What to do when a concussion occurs
If you a person around you seems to have suffered a concussion, you should check their overall status as soon as the trauma occurs. Any alterations in consciousness are easily observable, however, if victim seems responsive, you should ask a few questions such as their name and where they were going. Any mistakes in their answers could indicate a brain injury, such as a concussion. Also, make sure the person is kept awake and conscious.
Do not let the victim fall asleep. Call 911 immediately so they receive treatment ASAP. Timely treatment can prevent aggravation of injury and improves the chances of a complete recovery.
You can still settle after filing a lawsuit.
Filing a lawsuit does not mean you give up your ability to settle your case. A case can settle the day a lawsuit is filed, it could settle during trial and anytime in-between. If you would like to discuss whether you should be attempting to settle your case or whether you should sue in Court, feel free to contact us at (312) 957-4166. The consultation is free and we might be able to provide some advice on whether your case should be settled without a lawsuit or if a lawsuit is necessary to obtain the compensation you deserve.