The Process in a Nutshell: Investigate, Negotiate, Litigate

Copyright ) 2000 Robert P. Holmes All rights reserved.

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Investigate

Information From The Client

Once the written legal services agreement has been signed, the attorney-client relationship is formed and the lawyer can get to work.

The first step is to investigate. The lawyer will first gather detailed information from the client. This may be by interview, recorded statement, questionnaire or some combination of these techniques. It is vitally important that the client give information which is accurate and complete.

Every trial lawyer has either heard or experienced firsthand the horror of hearing a client reveal crucial information for the very first time during a jury trial when it is difficult or impossible to prevent irreparable damage to the claim.

For instance, if an attorney asks a client whether the client has had any other injuries unrelated to the claim, the attorney wants to know about all injuries, not just ones that the client thinks might be important. Even if the Client thinks discussing another injury is irrelevant or embarassing, the Client needs to swallow his or her pride and discuss it, fully. The attorney must have accurate and complete information to evaluate the claim, to advise the client and to conduct a trial if necessary.

A sample of questions which the lawyer may ask the client at the beginning of the claims process is shown in the Online Client Handbook; click on Sample Client Questionnaire.

Other Sources Of Information: Police Reports, Medical Records and Bills, Witness Statements, Insurance Investigation Files; Photographs, Lost Wage Statement

Medical Records and Bills

In addition to gathering facts from the client, the attorney will immediately begin to gather information from other sources. When the legal service agreement is signed, the attorney will also have the client sign several copies of a medical release authorization which will allow the lawyer's office to obtain all relevant records and bills from the client's doctors and from any hospitals and any rescue squads which may have treated the client.

Accident Report

In automobile accident cases, the lawyer will also write to the NC Dept. of Motor Vehicles to get a copy of any traffic accident report which the investigating law enforcement officer submitted.

Witness Statements

If there were any known witnesses to the accident or other injury event, then the lawyer's office will seek to interview those witnesses and obtain a statement recording the witnesses' recollection of the event.

First Letter To Liability Insurance Company

The lawyer will write the liability insurance company informing it to cease any further contact with the client. This letter will also revoke the insurance company's right to seek information from the client's doctors. From this point forward, the insurance company can only get medical records by requesting them from the attorney. The attorney will also demand that the insurance company send copies of any recorded statements it may have taken from the client.

Important Photographs: The Injury, The Accident Scene, Any Vehicles or Products Involved In The Injury

If the Client comes to the lawyer soon after the injury, there is often an opportunity to preserve important evidence by photographing the injury. As an example, there may be bruises, swelling, or orthopedic devices which should be photographed.

It may be important to photograph the accident scene, especially if there is any remaining evidence from the accident such as skid marks or broken glass. It is also important to photograph any damage to vehicles involved in the accident.

Lost Wage Statement

If the injured client was employed at the time of the accident, it is likely that the client lost time from work as a result of the accident injuries. In most cases this loss of work time is "temporary total disability" resulting from the client's inability to work for a period of time after the accident.

In some cases, the injury is more serious and results in "permanent partial disability." Some lawyers and insurance companies refer to the abbreviation, PPD. These issues are discussed more below. If there has been any kind of disability, then the lawyer will usually want to obtain a signed statement from the client's employer describing the clients normal wages and documenting the lost work time.

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When The Claim "Matures", Negotiation Will Begin

The lawyer may finish much of the early fact investigation within a few weeks after he starts, but in a case of serious injury, there may be a need for more time to pass before beginning negotiation. This is because the client may still be in treatment and the client may not have reached what the doctors call "maximum medical improvement."

An Injured Person Will Fully Regain Preaccident State of Health, or, Have Permanent Effects From The Accident

In most cases, a time will come when the client's doctors determine that the client has either fully healed or that the client will never get back to their preinjury state of health. When the client's doctors determine that the client has fully healed, then the client will be "released from treatment." On the other hand, if the doctors determine that the client has permanently stabilized without recovering preaccident health, then the doctors may determine that the client has reached "maximum medical improvement." The client may be left with some permanent effects from the injury. Permanent injury can vary widely. For instance, one person's permanent injury may be serious and disabling. Another person's permanent injury may involve periodic pain which is bothersome, but not very disabling.

The Doctor Can Provide a "Rating" of Permanent Injury

If there is permanent disability, the lawyer will ask the client's doctor to measure and describe the disability. This description given by the doctor is called the "permanent disability rating." It is usually expressed as a percentage loss of use of a body part or of the whole person. For instance, a person whith an arthroscopically-repaired knee ligament might be assigned a 15% disability of the knee. Although each claim is different, it can be said that in most cases a claim can be evaluated for settlement purposes once the factual investigation is complete and once the client has reached maximum medical improvement. At this point, the lawyer can shift from the investigation phase to the negotiation phase.

Negotiation

Remember the three steps in the claim process: Investigation, Negotiation and Litigation. Every claim involves the first two steps of investigation and negotiation. Many claims are settled without reaching the third step of litigation. (Litigation is the entire set of processes involved in filing and prosecuting a lawsuit. Trial is not the exact same thing as litigation. Trial is merely a step in the litigation process.)

-- Robert Holmes (holmes23@bellsouth.net), February 03, 2000