Most personal injury cases do not go to trial. In fact, some 97 percent of these claims settle out of court. If there is no question as to liability, insurance companies usually have a legal duty to settle these claims within ninety days. However, there is almost always at least some question as to liability. So, in most cases, the claim might take longer to settle.
That delay is probably a good thing. If the victim/plaintiff settles the case too early, the settlement amount might not fully account for all damages. It is almost impossible to re-open closed cases, even if the victim/plaintiff has a valid reason to do so.
Regardless of when the case settles, a Marietta personal injury attorney usually obtains compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Additional punitive damages may be available as well, in some extreme cases.
Since the victim/plaintiff has the burden of proof in court, all successful claims have foundations of solid evidence. Frequently, this part of the process does not take very long. The burden of proof is only a preponderance of the evidence (more likely than not). So, a little proof goes a long way.
This proof usually includes the police accident report and medical bills. But these things may not be enough.
As for the police accident report, even the most experienced first responder is not a professional accident reconstructionist. Furthermore, if the victim was killed or seriously injured, the police accident report is usually incomplete. In these situations, the report obviously only reflects the tortfeasor’s (negligent driver’s) side of the story.
Medical bills usually show things like diagnosis information, treatment data, and treatment cost. Some bills also have doctor’s notes which indicate pain and suffering. Some bills do not have this information. So, an attorney might need to dig a little deeper. Most jurors do not respond very well to cold, clinical information. The medical bills need a human face.
If additional evidence is necessary, it is usually not hard to find. Some examples include:
- Lay Medical Testimony: As mentioned, medical bills may only tell part of the story. Friends and neighbors obviously are not doctors. But they can testify as to what they saw. For example, Juan’s wife can testify that his back hurts so much he can only mow the lawn for about ten minutes before he must take a break.
- Event Data Recorder: The EDR, which is much like a commercial jet’s black box flight recorder, is often critical in Marietta car crash claims. These gadgets capture and record things like engine RPM, vehicle speed, brake application, and steering angle. Data like this gives jurors a much clearer picture of what happened.
This evidence may not be hard to find, but there may be some other issues. The EDR is a good example. Georgia has very strict vehicle data privacy laws. Normally, attorneys must obtain court orders before they can examine and download EDR information.
Based on the evidence, most car crash claims involve one of the following legal theories:
- Ordinary Negligence: Basically, ordinary negligence is a lack of care. Distracted driving is a good illustration. Turning one’s head to yell at the kids in the back seat is technically distracted driving, but most jurors do not consider such behavior to be a lack of care. But repeatedly texting on a cell phone in the moments before a crash is a different matter.
- Negligence Per Se: Distracted driving, and specifically device distraction, illustrates this principle as well. Georgia has a rather broad hands-free law which prohibits most hand-held cell phone use. Tortfeasors who violate this law and cause crashes may be liable for damages as a matter of law. If the tortfeasor used a hands-free device and caused a crash, a Marietta personal injury attorney probably must go with ordinary negligence.
Sometimes, the tortfeasor is not the only party responsible for damages. If the tortfeasor was a truck driver, Uber driver, or other commercial operator, the tortfeasor’s employer may be responsible for damages. Or, if a bar or restaurant sells alcohol to an underage or intoxicated person, the provider may be liable for damages.
Other theories include negligent entrustment owner liability and negligent hiring employer liability.
Preliminary Settlement Negotiations
Mostly based on the evidence and theory of liability, attorneys negotiate with the insurance company. As mentioned above, these negotiations usually begin after medical treatment is at least substantially complete.
The amount of evidence largely dictates a claim’s settlement value. The more evidence the victim/plaintiff presents, the higher the damage award usually is. Other factors in this determination include any insurance company defenses, like comparative fault, and the victim/plaintiff’s motivation to settle the case.
Generally, an attorney uses a multiplier to determine noneconomic damages. That multiplier may be two, three, or four, largely depending on the facts. This figure serves as a starting point for settlement negotiations. It may also be a bottom line.
Subsequent Settlement Negotiations
If the claim does not settle after a few months of talks, attorneys usually file court paperwork to preserve the victim’s legal rights. At that point, mediation settles many cases.
Cobb County judges typically refer contested matters to mediation. A neutral third party, who is usually an unaffiliated Marietta personal injury attorney, meets with both parties and tries to facilitate a settlement.
Generally, after each side gives a brief opening statement, the parties retire to separate rooms. The mediator then goes back and forth, conveying settlement offers and counteroffers. If both parties negotiate in good faith, mediation is usually successful.
Reach Out to a Tenacious Lawyer
Most car crash claims settle out of court, and sometimes this process takes time. For a free consultation with an experienced personal injury attorney in Marietta, contact The Phillips Law Firm, LLC. We do not charge upfront legal fees in negligence cases.