Forget the courtroom dramas you’ve seen on TV. About 95% of all personal injury claims end at the settlement table after a few weeks or months of negotiation. Facts and evidence are critical in negotiation, but so are bargaining skills.
When negotiating a sizable personal injury claim, your opponent will probably be an expert negotiator—an insurance adjuster or a lawyer. That won’t matter if you hire an experienced Austin personal injury lawyer to represent you.
Following is a brief description of a typical sequence of events in the personal injury settlement process. However, no two cases are alike, and many negotiations do not follow the pattern set out below.
Your personal injury lawyer will launch a preliminary investigation, starting with questions they ask you at your initial consultation.
They will gather evidence for your claim, possibly including the following:
Other evidence may apply based on the type of case and the circumstances surrounding your injuries.
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MMI is the end stage of your recovery. At this point, your doctor does not anticipate any further treatment because your condition has already improved as much as it ever will. This is significant because it is difficult to calculate your damages before you have reached MMI.
Of course, some people never reach MMI, or they reach it many years after the initial injury. In such cases, your lawyer will need to calculate future losses—such as future medical expenses and future lost earnings. This necessity may arise even if you do reach MMI because you could find yourself in a stable medical condition but permanently disabled.
Calculating the value of your personal injury claim could be easy, or it could be very difficult. If you suffer a long-term injury, you might need an expert witness to help your lawyer calculate the ultimate value of your claim. It is important that you approach the bargaining table for the first time with a clear idea of how much your claim is really worth.
In most personal injury claims, especially those involving insurance companies, the negotiation stage begins with an exchange of letters—the demand letter and the reservation of rights letter.
Your lawyer should draft your demand letter. It should explain the facts surrounding your injuries and why you are seeking compensation. The demand letter may also contain a description of your losses and a demand for compensation.
The insurance company will send you a reservation of rights letter in which they reserve the right to deny your claim if it lacks merit. This is nothing to get concerned about—it’s a perfectly routine formality.
For a while, your claim could become a ping-pong game of offers and counteroffers. Remember that your lawyer has no authority to settle your claim without your permission. If talks get stuck because the opposing party is too stubborn to offer a fair settlement, hardball tactics might be necessary.
The next step is usually litigation (but not necessarily trial). Your lawyer will file a formal complaint with the court, and the defendant will receive a summons and a copy of the complaint. The defendant must then file a formal answer to avoid a default judgment.
Pretrial discovery is the way that each party gathers evidence that is in the other party’s possession. It works because an uncooperative party can face sanctions from the court.
Discovery includes the following legal tools:
Discovery is evidence-gathering, not negotiation, but it paves the way for more effective negotiations later.
Discovery is a very powerful tool. If the newly-uncovered evidence is persuasive enough, it could turn the tide of the negotiations in favor of one of the parties.
Ideally, your lawyer should draft the settlement agreement, and both parties should sign it at the same time. You can enforce a settlement agreement just like any other contract. You will also need to formally withdraw your lawsuit if you filed one. There may be some last-minute dickering over the exact wording of the settlement agreement.
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A personal injury lawyer who is a skilled negotiator can increase the compensation you receive by far more than the amount of their legal fees. Additionally, your lawyer will probably work on a contingency fee basis, meaning you won’t owe anything unless you win.
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