Many 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:
- 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.
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.