Don Sjaarda, Esq. – Personal Injury Case Myths and Rumors BUSTED!

Don knocks down 3 of the biggest myths involving personal injury cases.

Good morning, everybody. I’d like to talk to you this morning about myths and rumors in personal injury cases. I hear some of these and I am sure you have heard a few yourself. I have narrowed it down to three that I would like to talk with you about today.

The first one that I hear the most often is, “I can’t afford to hire an attorney, I’ve been involved in an accident, I’m not working, I’m paying co-pays, deductibles, and I’ve got all these expenses. How am I going to come up with the money to hire a lawyer?”

Well, I won’t say you are in luck. You’ve been in an accident, but you can hire me on a contingency fee basis. What that means is I don’t charge you anything upfront. I don’t charge you a flat fee. I don’t charge you a monthly billing for the hours that I put into the case. I only charge you a percentage of the recovery at the end of the case. And even then, only if I am successful in getting a recovery.

This also serves a purpose for society, I think, in that I don’t tend to go forward with cases that don’t have good merit. If the case doesn’t look like it’s a case where I can be helpful and get a good recovery, I don’t pursue the client.

The second myth that I hear a lot is, “If I do hire a PI attorney, might I get less out of the case if I did it on my own?” It’s kind of a corollary of the first one. That’s not my experience, but I don’t take cases where I don’t think that I can do better for the client than they can do on their own.

For example, I don’t take small claims cases. So you can sue in small claims for $7500 now on personal injury cases and as of the first of the year, that goes up to $10,000. I don’t handle those cases. You can probably do those on your own.

But in the cases that I do handle, there some things I do to help maximize your recovery including undertaking a complete investigation, preserving the evidence. If you have a product liability case, and you don’t have that defective product, you’re out of luck. You aren’t going to be able to prove that case.

I help to locate all the sources of recovery. If you are involved in an accident, your primary claim is going to be against the other party who is involved in it and their insurance company, but you may also have a claim with an uninsured, or under-insured motorist on your own policy.

But there could be other factors too. You could have dangerous intersections that can give you a government claim in which you might want to pursue. Perhaps also, you might have a defective product or defective vehicle and that might provide another avenue that I can explore for you to locate all the potential sources of recovery.

I enter into negotiations, I file lawsuits, I do discovery, alternative dispute resolution, trials, whatever it takes to get the best result in your case. At the end of the case, you might be surprised to learn that your health insurance company that has been paying your medical bills wants money back from you if you collect money on the injury case. They put their hand out and say, “Okay, we pay $5000 to your doctors, pay us back.” That’s something you’re going to owe.

With an attorney, you can have those bills and liens negotiated down. I can do a lot of good work for people by reducing those amounts so you get more net proceeds in your pocket.

Keep in mind that there is no preset value to a case. Instead of getting all of a small case, you might get most of a much larger case.

And that brings me to the third one, “I heard that my case is worth a multiple of the medical bills and loss of earnings.” This is something that I have heard from the time I was a claims adjuster until, well, 35 years of practice as a PI attorney and it is rarely the case. The reason is there are a number of factors that you have to look at.

One is, is there good liability. California has imperative negligence, so you don’t have to be 100% in the right to gain compensation against the other party. But you can recover for their percent of the liability. In other words, if you are 25% responsible and they are 75% responsible for a traffic accident, you can recover 75% of your damages. It’s that simple.

It means that it is not necessarily a multiple that is going to help you determine the value of your case. It also depends on the nature of the injury. Some injuries like scars and fractures where there is no surgery required are going to have fairly low medical bills compared to the value of the case. The case value is going to be substantially greater than what the medical bills and loss of earnings would be.

Type of treatment is relevant. If you have surgeries, burn treatments, where they have to debride your skin, very, very painful operations, these will increase the value of your claim, your pain and suffering damages are substantially above the medical bills.

You are entitled to recover general damages. We use the shorthand pain and suffering, or non-economic damages, but what we are talking about is past and future physical pain, mental suffering, emotional distress, loss of enjoyment of life, disfigurement, inconvenience, grief, anxiety, and humiliation.

Now in some cases you might have punitive damages and you have to show oppression, fraud, or malice. If you can do that, you are entitled to get additional damages that again, wouldn’t be really covered under a multiple of your medical expenses and loss of earnings.

There has been a change in the law in California on what you can claim for your medical expenses. It used to be if you had $50,000 in expenses, you put your hospital bill up, your doctor’s bill, and your prescriptions, and you put them all on the board or a PowerPoint slide and show that to the jury, and then afterwards you would claim your pain and suffering damages and other losses.

Because of recent California court decisions, we can’t do that anymore. We can only put up on the board the amount that your health insurance company paid for your medical services along with your co-pays and deductibles that you have paid out of pocket.

You might also have some services outside of your network that your doctor took on a lien. What a lien means is your doctor has agreed to wait until the claim is done to be paid. It’s not contingent. It’s not a lawyer’s fee that you only owe if you are successful. You have to pay it in any event. The doctor will wait until the end of the case to be paid.

What you can claim on those cases, under current law, is the reasonable value of those services, which may or may not be the amount that is billed. You may have to bring in experts to testify to that.

You are also entitled to claim voluntary write-offs after the fact. These are further reasons why the multiple approach does not really help to determine the value of the case.

Other factors that affect the value are the reputation of your doctors. Did you get appropriate medical care from the right kind of doctors for your situation? Your attorney, the quality of your witnesses, your own performance at your deposition. When they took your deposition, were you able to explain your injuries clearly? Did they think you would make a good impression in front of a judge and jury? If that’s the case, your case has more value. If not, it probably won’t.

They will also look at your past medical history. If you have one, your past claims history. That makes a difference. If you have a chronic condition, one that is never going to go away, that is going to both you the rest of your life. Also, your age and life expectancy will enter in to it. So these are some of the factors that we look at when trying to value a case and all good reasons why looking at a simple multiple is not going to tell you what your claim is really worth.

So these are some of the myths and rumors that I have heard for many years and I am sure you have heard some more too. If you have any questions, I will be happy to try and answer them.

Don Sjaarda
Tel: (714) 963-8216
Fax: (714) 964-5597
Centennial Plaza 18837 Brookhurst Street Suite 107
Fountain Valley, CA 92708-7301