Should I Represent Myself in my Personal Injury Case?

Do I really need a lawyer? Should I just represent myself?

These are questions people often ask themselves after being involved in a car crash or other injury case. Tune in to learn what Josh and Aaron have to say about handling the injury claims process on your own.

Listen here or read the transcript below. FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.

Introduction: Thank you for tuning in to Summary Judgment, where Austin personal injury attorneys, Josh Fogelman and Aaron Von Flatern of FVF Law, discuss the ins, outs, and in-betweens of personal injury cases.

Josh Fogelman: Welcome back to Summary Judgment. We’ve got an interesting topic for you today. I’m Josh Fogelman. I’m here with my partner, Aaron Von Flatern, by the way. Interesting topic today is, should I try to represent myself in my personal injury case? Aaron, what do you think about that?

Aaron Von Flatern: No. [chuckle] No. I was an adjuster for eight years before I went to law school and became a lawyer. And I worked on some of the biggest catastrophic cases for self-insured corporations, and we prided ourselves on getting cases settled with people. And I remember telling people, very sincerely, and I meant this when I said it back then, “Give me a chance to try to settle your case with you, and if you don’t like what we’re offering, well, then you can go call a lawyer and figure out what they can do for you.” Here’s the problem I have learned about that. During that time, there are all kinds of mistakes that can’t be undone or are very difficult to undo on your case. And it’s just kind of foolhardy to go forward trusting an insurance company, when you know that’s a for-profit corporation, who doesn’t really care about you at the end of the day, and it makes sense to get informed.

Just a few things that can go wrong. It can be too late. If you don’t like their lowball offer, it can be too late sometimes because the doctors have already, perhaps, not explored your injuries all the way. A lot of times, you’ve got several body parts that are injured, several different symptoms that are not being addressed, and you just kind of go with the flow. And by the time it all comes out, maybe your shoulder is hurting and it’s not in the records. Or it’s not adequately in the records, or when you try to bring it back into the records by going back to your doctor and talking about it, now the insurance company is looking at you like you made it up, or there’s some kind of treatment gap there that really doesn’t exist. And that’s one thing a lawyer will do for you, is to ask those kind of questions. Are you asking your doctors to address all of your injuries?

There are documentation issues, there are evidence problems. Third parties may be involved in your case besides the insurance company you’re dealing with. There might be another corporation that had something to do with what happened, and you won’t find out until later that the insurance company wants to put blame on that third party. And at that point, maybe the witnesses and the documents are gone. A lot of times, the lawyers will send out evidence preservation letters, we call them spoliation letters. And this will prevent that evidence and that documentation from disappearing on you in your case.

Sometimes, insurance companies try to run out the clock. And so you can find yourself with a week left on your statute of limitations about to forever lose your right to bring a claim, and the insurance company just stops returning your calls. I can’t tell you, Josh… I’m sure you remember cases where people have called us desperate because no lawyer would take their case that close to the statute of limitations. I’d like to say that we did try to come in and rescue them at the last minute, but there are some problems with that, as you know, legally.

Josh Fogelman: Oh, yeah. Over and over again, we see people who have tried to handle a claim on their own, be baited by an insurance company through a variety of different tactics to wait. Well, gather this information for us. Gather that information for us. Let’s see what this person says. Let’s see what that person says. Let’s give it a few months to figure out how you’re doing, and then submit a claim and then we’ll be able to get it resolved. And by the time they send a demand to the insurance company, asking for payment, the insurance company says, “Oh, you know what? It’s been two years. Statute of limitations is blown.” Or like you said, Aaron, it’s right on the eve of the statute of limitations, and you won’t be able to find a lawyer to help.

And worse than that, is you’ve just spent all of that time not doing the things that you could have been doing in order to actually prove your case and prove your harms and losses and identify your sources of recovery and advocate for yourself and figure out why that person was doing the dumb and dangerous thing that they were doing. And all the other things that are critical to being able to put yourself in a good bargaining position or a good position to ask a jury to award money for the harms and losses.

Aaron Von Flatern: What about the negotiation? Considering how people expect insurance companies to react when someone demanded. Talk a little bit, if you can, about how people go wrong trying to negotiate with insurance companies.

Josh Fogelman: I can just tell you, I’ve been doing this for 12 years and I’m still learning the proper negotiation tactics to maximize recovery for our clients, because every single case is just so incredibly different. But the reality of it is, if you don’t have that experience and you don’t fundamentally understand what your rights and remedies are. And you don’t fundamentally understand how you go about putting yourself in the best position possible to be able to secure the types of recoveries that juries will award people who are really hurt, you don’t even know what to ask for. Just going into it blind and thinking that the number that you have in mind is a fair number when you really don’t have all the information, puts you in a position where, when the insurance company rejects that figure, you have now shown your hand and they know what your expectations are. And so, when you go and try to hire a lawyer, you’re going to have a more difficult time getting a lawyer to take your case, because you’ve already handicapped yourself, and in turn, handicapped them.

Aaron Von Flatern: It’s so easy to put a ceiling on your case, because insurance adjusters are very adept. They are trained, they are forced to read books about negotiation. And one of the things they’re expert at, is drawing out of you what your real bottom line is. And unfortunately, with insurance companies, if you let them know your bottom line, close to the beginning, they’ll have you begging for half of that by the time they’re done negotiating with you. It’s very important that you adopt a very specific strategy in order to get insurance companies to tell you their top line, rather than you revealing your bottom line. It’s an art. There’s a science to it, but it’s also an art. And so it’s one of those things that I’ve talked to lots of real estate agents, who feel like, “Oh, I really know how to negotiate.” And in buying and selling houses, a lot of times, if you come within 10% of your real number, that’s considered aggressive. Whereas in personal injury law, it can be a multiple of that. It can be a multiple of your bottom line that you should be at, in order to make sure that you don’t sell yourself short. So it’s a very unique negotiating environment. What about treatment gaps, Josh? The audience may not be familiar with the phrase treatment gap. It comes from insurance adjusters. Can you talk about that?

Josh Fogelman: Yeah, absolutely. One of the most important pieces of advice we give to people who are seeking help in a personal injury claim, is to be extremely diligent about getting the medical care that they need in order to recover. But also in order to be able to identify the full extent of their injuries, so that we can work to figure out what the long-term implications of those injuries are. Because that’s a critical part of a personal injury claim, future harms and losses, future medical expenses, things of that nature. Insurance companies, of course, don’t want you to know that. They want to feed off of the sentiment that you are naturally going to have, which is, “Oh, I’m just going to give it time to rest and heal and see how it recovers on my own. I don’t want to go through the hassle of going through a doctor. I’m going to be optimistic and hope that it gets better.”

They’re going to sit idly by while you take that approach and let weeks or months or sometimes even years pass. And then when the pain hasn’t resolved, and then you do finally go to a doctor and explain what’s going on and it turns out that you’ve got a pretty significant problem that might require surgical intervention or is going to be problematic for you for the rest of your life. The insurance company is going to say, “Well, if it was really that bad, why did you wait so long to get it treated? And you’re going to end up with this, what we call treatment gap, as Aaron said, that is going to be held against you in their negotiations. It’s going to be held against you at trial. It’s going to make it more difficult for you to get a good lawyer to handle your case. And it’s a really, really nasty tactic.

Aaron Von Flatern: Yeah, another thing that happens to people that often causes treatment gaps is the fact that sometimes they can’t afford their own case. There are copays and deductibles with the health insurance companies. Some people don’t have health insurance, some people can’t afford to take off time from work to go get the treatment they need. These are precisely the kinds of issues that you should be talking to a lawyer about, in order to work out a plan and strategy. Oftentimes, lawyers can put strategic partnerships together that can actually hold the bills, in order to allow you to get the treatment you need in order to allow you to get the care you need and the documentation you need, in order to succeed in court.

Josh, the bottom line on this is, it’s kind of what we’ve been saying all along, which is, if you got a personal injury claim, do some homework. Find a law firm, like FVF Law, who if you call them is not going to put you under some kind of pressure tactic to sign a contract, but rather is going to give you information that you need about your case, answer your questions and give you some strategies, whether or not you hire them. Those law firms exist. We can testify to that here in Austin, especially. And so bottom line is, take the time and get informed before you just go trusting the insurance adjuster. Even nice ones, like I used to be, they’re working for a for-profit company. They’re only as good as their training, and that training is coming from the shareholders who want more profit.

Josh Fogelman: Yeah, you hit the nail on the head there, Aaron. If you take one thing from this podcast, conceptually, it should be this. The insurance company who might be legally obligated to pay you on your claim has a vested interest in paying you as little as they possibly can to make you go away. Conversely, personal injury law firms work on a contingency fee basis, which means you don’t pay them anything at all unless and until a successful recovery has been secured and then you pay a percentage of that recovery. Which means, unlike the insurance company who’s incentivized to pay you as little as possible, your personal injury attorney is incentivized to help you recover as much as possible. And there are a significant number of hurdles to overcome and a huge learning curve that a good reputable personal injury attorney will help you understand at the outset of your case, that I promise you, we’ll put you in the strongest position possible of securing fair compensation or even exceptional compensation for whatever your harms and losses are. So if you’ve got a question, it’s always a good idea to pick up the phone and talk to a reputable personal injury attorney, before you go down the road of putting your trust in the hands of an insurance adjuster.

So this has been another episode of Summary Judgment. We really appreciate you listening in. We hope that you’ve found something in this podcast helpful, and we’re always available to help you if you or someone you know has been hurt in a personal injury incident. We’d love to help you out. You can check us out on our website, if you’re not already there, www.fvf.law. Or if you want to just kind of learn a little bit more about the character of our law firm and who we are as people, we run a pretty colorful Facebook page. You can check us out on Facebook at; FVF Law, or on Instagram as well. So again, thanks for tuning in.