Want to Settle Your Own Accident Claim? Part I – Should You?

Settle Your Own Accident CaseMany people involved in accidents which give rise to personal injury claims wonder if they should try to settle their own case before hiring a lawyer. Will they personally recover more money by negotiating with the insurance company directly, thereby avoiding paying attorney’s fees and costs? Being a lawyer, of course I can’t give a straight and simple answer to this question. It’s not because I don’t want to. It’s because there are a lot of factors which affect whether your case is one which can be reasonably settled without hiring a lawyer. So, instead of a simple (and therefore, wrong) answer, I’ll discuss the various issues which should affect your decision. In Part 2, I’ll suggest how to proceed should you decide to “go it alone.”

Should You Settle Your Own Case? Factors Which Weigh Against Trying It

If your case is more complicated than (1) a car accident, (2) a slip & fall or (3) some other form of premises liability claims (e.g., something falls off a high shelf onto you at a store), I would not suggest trying to settle it on your own. Medical malpractice, product liability cases and cases against government agencies (even car accidents and slip & falls involving a government defendant) should really be handled by a lawyer. Not only do they involve complicated areas of the law which can confuse even attorneys who don’t specialize in that area, they usually have hidden dangers, such as shorter statutes of limitations, damages caps or procedural requirements which must be satisfied in a short period of time to preserve your right to sue. Leave these types of cases to the lawyers, particularly lawyers who are well versed in those areas of the law.

Cases Which I Strongly Urge You Not to Try to Settle Your Own

Even assuming your case is more of a “run-of-the-mill” type personal injury claim, that doesn’t necessarily mean you should try to settle it yourself. Some factors which strongly weigh against you trying to settle a case on your own are:

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  • The Defendant denies liability (fault) for the accident or alleges that you are also at fault. Generally speaking, if the defendant has a liability defense, the case is much harder to settle. If the insurer thinks that it has a chance of winning outright at trial (getting a defense verdict) this is especially true. This is true to a lesser extent in “comparative fault” cases, such as car accidents in which the defendant claims that you weren’t wearing your seat belt or slip & fall cases in which the defendant claims that the hazard was “open and obvious”. Lawyers have a very hard time settling cases involving disputed liability without having to file a lawsuit. Expect it to be twice as hard, if not impossible, for you to do it on your own. If you attempt settlement negotiations and the insurer raises these issues, I’d suggest you stop the negotiations and just hire a lawyer.
  • There is more than one Defendant. Cases involving multiple defendants, like a multi-car accident or a premises liability case that may involve not only the property owner, but also an outside maintenance company and/or manufacturer (such as a case involving a faulty elevator) are examples of this. I would not include cases which involve UM insurance, as that still only involves one at-fault party — it just includes an additional source of liability insurance to pay for the damages caused by that party. In cases which truly involve multiple defendants who may have varying levels of liability, I’d suggest hiring a lawyer. They tend to be too complicated for a lay person to handle.
  • Your claim also involves a related workers compensation claim. If you are injured by a third party (not a co-worker) while in the course and scope of your employment — say you get in a car accident while driving somewhere for work — you will have both a workers compensation claim and a personal injury claim. These types of cases have numerous pitfalls which a lay person would have a hard time handling. The reimbursement of the workers compensation carrier and the fact that your workers compensation doctors will likely be biased against you (and therefore hurt your personal injury claim) are issues that are better left for a lawyer to navigate.

Other Factors to Consider When Deciding Whether to Settle Your Own Case

While I consider the above-listed items to be “deal breakers” when it comes to trying to settle your own case, there are some other factors which need to be considered as well:

  • The amount of money that is at stake. The value of your case will be influenced not only by the extent of your injuries, but also by the amount of available insurance coverage. Generally speaking, the more money that’s at stake, the more likely it is that you’d be better served by having a lawyer. An exception to this rule is the unfortunate circumstance in which the value of your injuries clearly exceeds the amount of insurance coverage available. If you’ve got $40,000.00 in medical bills from a “clear liability” accident and there’s only $10,000.00 in insurance coverage, hiring a lawyer is not likely to increase your recovery — in fact, it is more likely to decrease it, due to the attorney’s fees and costs. Most insurers will quickly roll over and pay policy limits in cases such as this whether you have a lawyer or not, because they fear being sued for bad faith.
  • Your level of comfort in tackling settlement negotiations. If you suck at negotiating, if you feel that you “aren’t smart enough” to handle this, or if you’d just rather not have to deal with the headache, hire a lawyer. Don’t try to be something you’re not just to try to save a few bucks or to impress a loved one who may be pressuring you to try to handle the case yourself. Yes, you can screw up so badly in your settlement attempt that no lawyer will want your case afterwards (you shouldn’t screw up this badly if you follow my suggestions in Part 2, but you know what they say about free advice). You should only try to settle your case if you truly feel comfortable about it. If you’re a super haggler and an excellent speaker and writer, you should do fine.

Your personality and intelligence will play a large role in your success (or failure) in trying to settle your accident case. People who are smart, calm, patient and assertive will fare far better than those who are not. Settlement negotiations in a personal injury case are not the same as negotiations over the price of a used car. It is a more drawn out process which involves skill not only in determining how much you should move with each offer, but also in arguing (without being argumentative) the merits of your case. I’m not saying you need to be a genius who was captain of your high school debate team (most lawyers aren’t), but you do need solid communication skills and confidence in your ability to negotiate.

Settlement tip

Would Hiring a Lawyer Result in a Larger Settlement?

In most personal injury cases where the defendant is adequately insured, having a lawyer will get you a larger settlement. This is simply due to the fact that the insurer expects the lawyer to immediately file a lawsuit if he can’t settle the case through pre-suit negotiations. Aside from their experience in handling settlements, it is the imminent threat of a lawsuit that gives attorneys a distinct advantage over lay people.

That being said, your goal in trying to settle your own accident case is not to meet or exceed the gross settlement amount an attorney would get. You are only concerned with the net settlement amount you receive (the money which goes directly in your pocket). You need only achieve a gross settlement of more than 66% (the typical pre-lawsuit attorney fee being a 1/3 fee) of what a lawyer would have gotten you to achieve higher net settlement amount. So, if a lawyer could settle your case for $20,000.00, you need only settle for more than $13,333.33 to personally get more money by settling on your own. That’s a pretty big incentive to try to settle your own case.

If, after reading this, you’re convinced that you want to try to settle your own case, proceed on to Part 2 of this article.

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17 Responses to Want to Settle Your Own Accident Claim? Part I – Should You?

  1. Djkwhite says:

    Thank you for the information provided in your site.
    Very helpful.
    Regards,
    David

  2. Pat says:

    In a case that involve both claims, WC and PI… Can I avoid the WC claim and just choose to file a PI claim to the third party insurance company if that person is in a clear negligence?

    • fl_litig8r says:

      Technically, yes, but I wouldn’t recommend it. How will you pay for your medical treatment while your liability claim is pending? Your health insurer will likely deny coverage because your workers’ comp insurance is considered primary coverage (it pays before health insurance). Just because the other driver is clearly at fault does not mean you will be paid quickly. If you plan on paying all of your medical bills out of pocket, this might be an option — but why risk your medical bills being higher than you can afford?

      If you make a comp claim, you will still be able to ask for your full damages from the liability carrier, as your comp carrier is entitled to be reimbursed from your settlement.

  3. tyler says:

    do you think i should get a lawyer i was in a car accident where it was 60% the other guys fault and some how 40% mine ( I had the right a way and the guy hit me going 50 but it was a unmarked road he t boned me i was also going 50 he said he didnt see me coming and there was no obstruction of view either this all happened on a gravel road) my car was completely totaled and his big truck and trailer was totaled i was trans ported by ambuilence and he was to. and was admitted he walked away with nothing but i have a skull fracture and whip lash and fractured ribs. my med bills so far are 9000 dollars still havent gotton ambulance bills or radiology bills. I had to miss work for for a week in a half i had to use my vacation time as i am the only one that works in my family. my insurance adjuster paid for my car since it was a toal loss which didnt matter cause i owed more then what he gave me on it. i had to take a loan out to buy another car and use the extra money from the loan to pay my bills. just cause im off work doesnt mean everyday bills stop coming. i was just wondering if i do this on my own how can i figure up what i think he should pay for pain and suffering and time off work and med bills. this has been a very stressfull time i still have bad headaches and its been 4 weeks since my accident im still not 100 percent and im getting all these med bills and dont know what i should do. the other guys insurence guy hasnt called me to talk about anything yet besides telling me that he thinks its 60% his clients fault and 40% mine and i never said anything besides ill talk to my insurence company who i guess also agreed with the 60/40. i guess i should say that my insurence company is going to pay 5000 for my med bills. Iv called one lawyer who said i should try to handle it my self first and if that doesnt work i could always call him back and he would be more then happy to help me but he said that they take a 33% of the settlement and that wouldnt leave me with much. iv only talked to that one lawyer and it was only on the phone. I am at a loss

    • fl_litig8r says:

      I would start by giving another lawyer (or 2 or 3) a call — don’t just call the “big name” firms in your town, as they’re the ones most likely to reject a smaller case. I wouldn’t be so quick to accept the 60/40 fault that the other guy’s insurance company came up with — they’re not exactly objective. If you can’t find a lawyer to take your case right now, then trying to settle on your own is really your only option. As I discuss in this article and part 2 and part 3, it is unwise to try to settle your case until you reach maximum medical improvement (MMI). Before then, you can’t determine how much you should ask for in past and future medical bills, which will be important in figuring out how much to ask for in pain and suffering. I talk generally about how to figure out the value of your case in this article.

      The tough part is not trying to rush things while your bills are piling up. However, if you settle before reaching MMI, you have a high risk of settling for too little — I’m especially concerned because your case involved a head injury. If you manage to get a lawyer, he might be able to help you get a lawsuit loan to hold you over until your case settles — but only use this option if you really need it (the interest rates are extremely high).

  4. Karen Steward says:

    Hi Litigator-on a short time frame here near the holidays – -so glad to find your site. Major RX chain took medication RX and filled 2mg Clonazepam that looked exactly like my compounded thyroid med. I took for 4-5 days – fell the first night and suffered contusion to my shin that later went so deep into the muscle and had flare up infections – regular MD, Derm, time off of work. A scar remains and with the least bit of heat and humidity it flares up again. In the Spring I broke my foot, could not go to work in a soft boot, per md – could not wear a plaster cast over shin injury. had to stay home an extra 6 weeks. fired by original attorney that I signed agreement with when I wrote him a note and told him various perils associated with the leg. (He really just didn’t want to fool with what he saw as an insignificant case, but didn’t say that) another attorney in the office offered to “look at” my file. I phoned for four months – no return call. Finally 30 days ago was told the pharmacy was reviewing my claim. called again 24 work days before my 2 year time limit runs out and was told to sign for the $2000.00 settlement. Company “does not admit fault” but will pay this for settlement. “Leg injury not convinced being caused by meds”. I was stunned, but said “o.k.”……wrote this 2nd attorney yesterday and explained it would not work – I have a 4 inch binder of med bills and time off of work. He writes back that there is no backing out – sign the settlement paper he faxed over – verbal is binding and it is $400-500 to get out of a settlement. “You would never be able to find another lawyer in this time frame”……..what is your take on this?

    • fl_litig8r says:

      If your lawyer told the other side that you accepted the settlement before you revoked your authority, it will probably be near-impossible to get out of it. I don’t know where he got the $400-500 figure from. It’s not like you can buy your way out of the agreement.

      Regardless, he is right that with so little time left on your SOL you wouldn’t be able to find a lawyer to take this case — especially with a settlement agreement in place that could act as a defense. You’d never get the issue regarding the settlement decided by the court before your SOL runs, so a lawyer would have to file suit (which will cost a few hundred dollars in and of itself) before knowing whether he could get out of the settlement. If your case was extremely valuable, you’d have an outside shot at finding a lawyer willing to risk it. However, given the relatively small amount at issue (even if it was worth $30,000.00) I can’t see any lawyer willing to take that risk.

  5. roland says:

    would you kindley state how one finds out how much the defendent is insured for.The defendent in my case is city of approx. 50,000 people.Thank you.

    • fl_litig8r says:

      Some states have laws requiring defendants to disclose their liability insurance limits. Some don’t, in which case you can ask, but they don’t have to tell you. In your case, you may be able to find out through a public records request (depending on your state’s freedom-of-information-act-like laws), though frankly I wouldn’t really be concerned with the policy limits of a city unless you have a monstrous amount of damages. Even if it’s underinsured, it can raise money through tax revenue to pay you (or just use any reserves it already has).

  6. George says:

    Filed an auto accident lawsuit in pro per. I have agreed with a defendant on a settlement. Their settlement and release paperwork includes a clause saying I will indemnify, defend, and hold harmless defendant if any third-party (i.e. doctors) claims are made. Pretty much makes sense to me – the purpose of them settling is to be done with my case, and they don’t want to be dragged back into it. But, before signing it, I wanted to see if this is typically agreed to by plaintiffs, or if it was routinely argued against. There are some outstanding doctors bills, but not high enough valued that I would see them going to court over.

    • fl_litig8r says:

      This is a standard clause and is routinely agreed to. They just want to be protected against any claims by creditors like health insurers and doctors who the plaintiff is supposed to pay from the settlement, but doesn’t.

  7. melissa says:

    Hi FL Lwyr: I contacted you awhile back. I fell on broken un even concrete at a county building resulting in wrist & shoulder fractures. I was there visiting, not an employee. ( The accident happened Nov. 2013.) When I fell I also hurt my knee which I ignored since I was inactive while healing my fractures healed. As I began to get around more my knee got very painful then went out. The orthopedist said the cartilage that lines the knee cap was damaged. (I had no prior knee problems.) No surgery, but more therapy and a knee brace that I wear as they can’t do surgery on this type of injury. At this point I decided to hire a lawyer instead of doing it myself. When there were no more dr. appts. the lawyer sent the demand letter around Feb 2nd 2015. I didn’t know that the claims adjuster could take so much time to reply. My lawyer says that premises liability take longer. I email her every couple of weeks. Last week she said she contacted him ( for the second time) but doesn’t give me any specifics. I’m frustrated at this point because I get so little information from her. She has mentioned more than once that we could file a suit. I thought that is what we did, but then I’m not a lawyer. I told her I am not going through a trial not to mention more waiting. How do I get this lawyer to tell me what the adjuster is saying to her? If he makes an offer isn’t she obligated to tell me? Also, is it normal for a lawyer not to tell her client what she feels the case is worth or at least what she feels the pain & suffering ‘part’ is worth? I feel like I have no control. I’m thinking maybe the lawyer wants to go to trial because she’s good at it ( this is what I’ve read about her.) While I admire that, this type of case should be settled. Is the lawyer just trying to get more of a fee? Am I being too impatient? I don’t want to fire her, I need the help. She told me that I ‘definatly have a good case.’ How long is too long to wait for an offer? FYI: I have photos of all the injuries including my knee that were taken right after the fall and during healing. Also have pictures of the concrete where I fell and my daughter took pics of a crew repairing the concrete the very next morning when she went to retrieve my car. Thank you in advance for your help.

    • fl_litig8r says:

      The lawyer isn’t delaying your case on purpose, nor is she eager to take it to trial. While she may be an excellent trial attorney, there is no real benefit to her in forcing a trial on a case that can be settled. Generally, when a contingency fee contract has a two-tiered fee structure (like 33 1/3%/40%), the higher tier is triggered by the suit being filed — the fee doesn’t go up if you go to trial after that.

      If you’ve given your lawyer authority to settle for a certain amount, she can ethically negotiate with the other side for any amounts equal to or above that without checking back with you. In practice, it’s a good idea to keep the client informed about how negotiations are going. You can just tell her that you want to be notified of any offers before she rejects them or counters and that should fix your problem. Of course, it may slow negotiations down as well if you aren’t available to take her call when she needs you.

      It’s not unusual for an initial settlement demand to be met with certain requests for further information. In a premises liability case, the adjuster would likely want to go inspect the premises or send some form of expert to do so. There are any number of reasons why the initial going seems slow. It may be that the insurer hasn’t even made an offer yet, and the conversations between your lawyer and the adjuster may not contain anything worth mentioning (which is entirely possible). You either trust your lawyer to tell you when important things are happening or you don’t. If she is someone who is known for taking cases to trial, I’d give her the benefit of the doubt, because she’s pretty rare these days among lawyers. As I said, she really has no motivation to force a trial or delay a settlement, and she doesn’t sound lazy if she’s actually trying cases.

      If you have a split fee structure where the fees go up after the lawsuit is filed, you want to let the pre-suit negotiations and information exchange play out for a while. Your only way to force the matter is to file suit, but then your fees go up (I’m assuming a split fee here) and you start incurring more costs as well. How long you should let this play out before filing suit depends on whether the insurer seems to be legitimately working towards settlement — that’s a fair question to ask your lawyer.

      As far as your lawyer not committing to her own valuation of the case with you, I’ll let you in on a secret — we lawyers use a lot of guesswork in initial evaluations of cases. It’s not an exact science, especially when it comes to non-economic damages. Our estimates aren’t really worth that much, because a jury can do whatever it wants when it comes to pain and suffering awards. Sure, we may be able to find cases similar to yours that received X dollars in the past, but that doesn’t mean that you will get a similar amount. She can tell you what your economic damages are worth with some specificity, but pain and suffering (for settlement purposes) is worth what you’re willing to take and the insurer is willing to give. We can give you a ballpark at best, so I don’t find it troubling that she won’t commit to a value for your case. To her, as long as the settlement of your economic damages is fair, your case is worth whatever amount you’re willing to settle for.

  8. Melissa says:

    Hi again; Thank you for your response. Yes, this is a 33 & 1\3% 40% contingency thing. I can’t say that I trust her like I did when I signed on. I’m working on it. When she mentioned going to trial ( twice ) that bothered me. At first I thought she meant it as a way to speed things up. Then I thought she just liked to go to trial ( because of what I read about her & what one of her asst’s. told me.) How many personal injury cases go to trial? And don’t most of them settle right before trial anyway? More time wasted. This is not a fun process and I feel for anyone going through it. So, I re-read your 7 deadly sins article. It’s excellent information. It’s easy to think your case is worth more than it is. I am willing to be realistic and grateful but they need to first make an offer. They might be pleasantly surprised at my response. Your site is so much help, I recommend it whenever I can. You need your own show. Thanks again.

    • fl_litig8r says:

      I actually wrote an article about how few cases go to trial these days. I think your lawyer may be talking about going to trial so much because most clients like to hear that their lawyer is willing to do this, if necessary. It’s probably just her posturing for your benefit, and it’s backfiring on her in your particular case. I doubt that she wants to try cases that can be settled.

      If I did my own show, I’d need a screen to hide behind and a voice distorter — too much bother!

  9. melissa says:

    Hi fl; Hope you are well. My PI case finally settled last Fri. It wasn’t the amount I hoped for but then it never is. Considering that the first offer made to us was really low ball, I am grateful where we ended up. I told my lawyer a few days before settling that I was thankful she took my case ( I had been turned down twice) and I was depending on her skills. I went through a time where I wasn’t sure about her. She told me that certain things about my case had appealed to her sensitive side ( para phrasing.) Thank God, for that because I think the majority of us do need an attorney for cases where you are seeking damages in a claim. I see the other side of ‘lawyering’; all the mountains of paper work and the endless waiting. That being said, I’m probably even more skeptical of how these settlements work between lawyers & the ins. co’s.
    My lawyer made a comment when we were about to settle. She said slip & fall cases as a rule don’t do well at trial. That juries tend to not be sympathetic or generous to the injured party. I can believe that. So why did she mention a law suit numerous times I wonder?
    The ins. co. had a contingency, I guess you call it. They wanted me to share liability. Meaning I could have avoided this accident. Yes, if I had stayed home. All you have to do is look at the photos I have of the concrete & the condition it was in to see it was in desperate need of repair. They did a quick repair of that concrete the morning after my accident. We had photos of that too. The good part of me sharing liability is that I will not have to pay back my medical providers, except for medicare. My lawyer assured me that there is no down side for me. Is this true? The case is settled and I cannot sue them again, so why didn’t they accept full liability? Is it because they can get us to settle for less knowing we will not have to pay back all those medical bills? I know there’s more to it.
    The accident was over a year & a half ago. Healing was rough ( am still healing) but getting involved in a claim was no picnic either and I am glad it’s over.
    Thank you so much for your help. As I said before, there aren’t any other sites that I know of where an attorney gives this kind of help\advice without linking you to their law firm.

    • fl_litig8r says:

      As long as you’re o.k with the final settlement amount, there’s no downside to saying you reached it in part because of comparative negligence. In fact, as you’ve noted, it helps when it comes to resolving many medical liens because you can often ask for a reduction based on your percentage of the fault. From a defendant’s standpoint, they never want to admit fault. Almost all releases say specifically that the defendant doesn’t admit fault. Mainly, this is to protect them from future claims based on the same type of issue. It has no real bearing on the case right in front of them, other than to act as an additional argument as to why damages should be reduced.

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