After working one year in United States District Court for the Northern District of New York, I joined a very well-regarded law firm in Albany in 1991. My areas of practice focused on plaintiff’s personal injury and criminal defense. I became a partner in 1996 and practiced law there for 17 years.
I started my own practice in 2008, moving my office to Bethlehem where I have lived since the early ‘90s. Last year, I again moved my office to a newly-refurbished building, once previously occupied by Spotlight News, on Adams Street in Delmar.
Today we’ll take a look at how a personal injury claim is processed.
Driver D’s car veers a bit to the right, catches snow, overcompensates and crosses back across the center line, causing a head-on collision with Driver A. Passenger P was in the front seat of A’s car, wearing a seat belt. Police arrive quickly and P, complaining of neck pain, is transported by ambulance to the hospital. After x-rays, P is discharged.
P hires my firm to seek compensation pain and suffering, loss of enjoyment of life, and loss of wages. P does so by signing a Retainer Agreement which sets forth the legal relationship between us and itemizes the attorney’s fee to be a contingency fee of one-third of the net recovery.
“Contingency” means that there is no attorney’s fee unless we recover money for P on this claim.
“Net recovery” means the balance of the proceeds after I reimburse myself for disbursements that my office spent in pursuing the claim.
After signing the Retainer, I would follow P’s medical and therapy treatment plans/records. At a stage of the process dictated by the treatment and injuries, I would have P sign medical authorizations allowing my office to obtain all of P’s medical and therapy records, as well as employment and any other relevant records that help establish damages.
Immediately after the accident, I would obtain the police report. This report itemizes many factors relevant to the accident, including all drivers and registered owners, witnesses, weather and roadway conditions, traffic controls, and a recitation by the officer pertaining to the happening of the accident. Remember, police officers generally do not witness the accident as it occurs. They rely on their expertise to ‘reconstruct’ the accident. They also obtain statements from the drivers, passengers, witnesses, and make note of all relevant physical observations.
Importantly, the police report will identify by code the insurance company for D and will also tell me whether tickets were issued to D for violations of the Vehicle and Traffic Law. Even if tickets are not issued, there are boxes on the report where the officer can indicate “apparent contributing factors” (driver inattention, failure to keep right, alcohol involvement, etc.).
Also at the outset, I would likely hire an investigator to take pictures and obtain statements from witnesses. In more serious injury cases, or complex accidents, I would hire a qualified expert to conduct a thorough accident reconstruction.
Dialogue with insurance companies is important. The decision becomes whether to sue D, or settle through negotiation. The rub is how long to wait before placing the matter into suit. Each case is different and can be best evaluated by assessing fault for the accident, proximate cause, and damages.
The costs associated with obtaining medical records; hiring an investigator; filing summons and complaint; serving papers upon D; obtaining an opinion from the treating physician regarding causation between accident and injury; and maybe an accident reconstruction expert, are all disbursements chargeable to the file. For instance, if P’s claim settled for $300,000, and I spent $3,000 in disbursements, I reimburse myself that amount. A balance of $297,000 would then be the net recovery, from which the one-third attorney’s fee would be subtracted, leaving the plaintiff’s proceeds from the settlement at $198,000.
