Filing Personal Injury Claims Yourself vs. Hiring an Attorney

Deciding whether to retain an attorney or represent yourself in your personal injury claim can be a difficult decision. Each claim is unique. Although some types of claims always require professional legal representation, others can be successfully negotiated without one. Here we discuss the factors that can help you decide if self-representation is right for you.

Soft Tissue vs. Hard Injury Claims

The majority of personal injury claims in the United States do not require filing a lawsuit or retaining the services of a personal injury attorney. Most personal injury claims involve soft tissue injuries sustained in:

• Minor car, motorcycle, and boat collisions
• Bicycle collisions
• Slip and falls
• Assault or battery crimes
• Dog or other animal bites
• Work-related activities
• Nursing home abuse or neglect*
• Defective products*

Although soft tissue injury claims can usually be negotiated without an attorney, hard injury claims cannot. In most hard injury claims, legal representation is not just the correct choice, but the only choice. Hard injuries include broken bones, damaged organs, permanent scarring, poisoning, herniated disks, or other serious injuries due to:

• Medical malpractice
• Wrongful death
• Head, brain or spinal cord trauma
• Poisoning, such as asbestos (mesothelioma), lead, carbon monoxide, etc.
• Severe burns
• Sexual abuse
• Nursing home abuse or neglect*
• Defective products*

* Note: Nursing home abuse and defective product cases fall into both categories because the more serious cases may require legal representation.

When Can You Handle the Claim Yourself?

When your injuries are soft tissue

Soft tissue injuries often include whiplash, swelling of tendons or ligaments, lacerations, contusions, abrasions, headaches, blurred vision, and other similar injuries. When injuries are soft tissue and liability is clear, the insurance company may simply ask you to submit your damages, and then you'll negotiate a mutually agreeable settlement amount. The claims adjuster will need your documentation to support the amount she'll be offering.

In an average personal injury settlement, once the adjuster has your documentation and finishes her investigation, all that's left is to negotiate your settlement. You should be able to negotiate your own claim as long as you understand the formula for computing a settlement amount. Soft tissue injury settlement amounts are normally derived from a multiple of anywhere from one-and-a-half to three (in some cases, four) times the total amount of your medical and chiropractic bills.

When liability is clear and the only issue is the settlement amount

Although most hard injuries require legal representation, sometimes self-representation may be appropriate. That happens when the insurance company accepts liability and the only remaining issue is the amount of the settlement. If there's any controversy about whether the settlement amount is fair, consider consulting with an attorney before signing the release and cashing the settlement check.

When you have the time, energy, and commitment your claim will require

Personal injury claims can be overwhelming. Coping with constant pain, doctor's appointments, and therapy sessions may be all you can handle. You may just not feel well enough to effectively pursue your claim.

If you are well enough, you'll have to be prepared to put in time and effort to acquire medical records, police reports, witness statements, etc. After a great deal of work putting together all the information and submitting it to the insurance company, you'll go through settlement negotiations with the claims adjuster. Some negotiations are cordial and quick to resolve, others are unpleasant and lengthy.

When an attorney won't accept your case

Once an attorney reviews your case, she may tell you liability isn't clear or doesn't exist at all. Or, the insurance award may not be enough to reimburse you for your medical bills, out-of-pocket expenses, lost wages, pain and suffering, and the attorney's fees and costs. In an average personal injury case, attorney's fees usually range from 33.3 percent to 40 percent, plus additional office fees for copying, depositions, etc.

Personal injury attorneys are also bound under state bar rules to pay any legitimate liens before paying you. Attorneys don't like unhappy clients. They want their clients to be satisfied with their net settlement amount. So, after weighing all the factors associated with your claim, if the attorney's expectations can't be realized, she probably won't accept your claim.

Representing Yourself

If you're going to represent yourself, you'll have to rely on your own preparation, determination, good instincts, and negotiating skills. Unfortunately you won't be able to hire an attorney for a couple of hours to give you advice, tell you what your settlement might be, or help plan your negotiating strategy. There are a couple of reasons why:

1. Most successful personal injury attorneys are quite busy working on their own client's cases. Their practices are usually based on contingency fees. For every hour they're not working on their clients' cases, they're losing money. Each claim is unique and requires the bulk of their time and effort.


2. Once an attorney accepts even one dollar to provide counsel, the attorney automatically and legally shares responsibility for the effect his advice has on the outcome of the claim. If his advice is misunderstood or results in the claim being lost, the attorney has exposed himself to a malpractice lawsuit. Even the remote possibility of a malpractice suit isn't worth the few hundred dollars he might accept to review a non-client's claim.

Free legal advice won't be included in an initial consultation. An experienced personal injury attorney isn't going to take several hours to review your claim and then spell out for you exactly what she would do if she were representing you.

The attorney will likely make a cursory review of your documents and listen to what you have to say. She may ask a few questions, primarily aimed at determining liability, the extent of damages, and the existence and amount of available insurance. The attorney will tell you whether or not she believes your case has merit. At that point, whether during the consultation or afterwards, you'll have to decide whether to retain the attorney or proceed on your own.

When Must You Hire a Personal Injury Attorney?

When your hard injuries are catastrophic

When your injuries are catastrophic or of a serious enough nature, you must seek the advice and counsel of an experienced personal injury attorney.

When your claim requires litigation, technical expertise, outlays of money in advance, or discovery (depositions, interrogatories, requests for production, etc.)

If your claim is a result of medical malpractice, asbestos or other poisoning, a defective product, or another type of injury that requires technical expertise, it's not the average personal injury case. Representing yourself in these types of cases is not advised.

Medical malpractice claims almost always result in litigation. A physician or hospital perceives a claim filed against them as an attack on their reputation. Unless the malpractice is incredibly obvious, it's rare to see a settlement. Litigation in malpractice claims requires a level of technical expertise you don't have. Insurance companies have the means to spend whatever is necessary to defend their major clients.

These cases always involve expensive and lengthy discovery. Discovery includes taking depositions, hiring court reporters, paying for transcripts, and more. Navigating these complicated procedures requires not only great expertise, but also outlays of substantial amounts of money in advance. It's not unusual for attorneys to spend thousands of dollars for discovery alone.

When a lawsuit is filed in a court other than small claims court

Sometimes a settlement negotiation becomes deadlocked and results in a lawsuit filed in higher court. Although representing yourself in courts higher than small claims is possible, it's very difficult. Judges in state courts can have little patience for pro se litigants.

Unlike small claims court, the rules of evidence are seldom relaxed in higher courts. In addition, attorneys representing the insurance company can be relentless. Losing a claim to a pro se plaintiff would severely damage their reputation. You will be served with multiple legal pleadings, objections during trial, and more. And should you somehow succeed, the attorneys could still appeal the case to a higher court.

When you can "opt-in" to a class action

Defective product injuries often result in class action lawsuits. Some defective products cases can go on for years. They require multiple court hearings, technical expertise, and substantial outlays of money. Instead of representing yourself, you may be eligible to participate in a class action lawsuit.

If you are eligible, you can opt-in as a class member. Once you're accepted into the class, you'll be represented by a law firm. It's difficult to say what an average personal injury settlement might be in a class action. When it finally settles, depending on the number of class members and the amount of the settlement, you'll receive a check representing your portion.

To see if you might become a member of a class action lawsuit check TopClassActions.com.

When your claim is against local, state or federal government

If your claim is against your town or city, or against the state or federal government, you should seek the counsel of an attorney with experience in government litigation. Claims against the government require complying with strict deadlines, especially under the Tort Claim Acts.

When the insurance company is negotiating in bad faith, refuses to accept liability, or offers only a nuisance amount

Most insurance companies prefer to keep their money. They are some of the largest corporations in the world. They stay that way by taking in as much money in premiums as they can and paying out as little as possible in settlements to accident victims.

Bad faith claims against insurance companies are seldom settled without litigation. Getting an insurance company to agree it acted in bad faith is just about impossible. It usually takes a jury verdict for an insurance company to be brought to task. Although it is possible bad faith cases may be heard in small claims court, the majority will proceed to higher courts where they will be defended by aggressive insurance company attorneys.

There are those occasions when an insurance company refuses to accept liability, and refuses to settle. If they refuse to settle, your only option may be to file a lawsuit. Depending on the amount you're suing for, you may have to file in a higher court. When higher courts are involved, it's difficult to know if the insurance company will settle and what the amount might be. In some cases, the insurance company may only offer a nuisance amount to make the claim go away.

Choosing an Attorney

Like physicians, many personal injury attorneys specialize in specific areas of the law. Some focus on a particular type of case, such as medical malpractice, defective products, workers compensation, or asbestos litigation. Do some research to find an attorney that specializes in your type of case before making a choice - the internet is a great place to start.

Injury attorneys work on a contingency fee basis, which means they take their fee out of the final settlement amount. No upfront payment is required. If you've already collected most of the evidence (police reports, medical records, etc.), the attorney may agree to reduce her fee. Bring it up during your initial consultation. It's a legitimate question and there's nothing wrong with asking.

Most personal injury attorneys don't charge a fee for an initial office consultation. Once the attorney hears what you have to say and reviews some of your documentation, she may decide your claim is substantial. You'll have to decide whether to retain that attorney or visit with others. Be sure to find one you have confidence in and want to represent you.