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The Perils Of Self-Representation For A Modest Personal Injury Claim

Interviewer: What do you say to the people who want to resolve the case on their own because they fear that the attorney will take a lot of the compensation they’re supposed to get?Are people able to get a fair settlement on their own?

Roy Comer: I strongly believe that anyone that has suffered a significant injury would benefit greatly by hiring an experienced attorney to work toward the best possible recovery. The legal system is complex, and it seems to be getting more so all the time. Doing these types of cases without the assistance of an experienced attorney is, in my opinion, a big mistake.

Nevertheless, not all claims are the result of catastrophic events. I frequently get calls from people who have claims that are relatively modest. If after considering the multiple facets of the case I think the case is likely to be worth $7,500 or less, I encourage them to go to small claims court. This process, the “people’s court,” is designed to do justice economically and efficiently. The case is usually completed within 60 days. If the insurance company appeals the judge’s decision, I can help the plaintiff with the appeal. After all, not too many people want to be involved in a lawsuit for 18 months over $7,500 or less. Life’s too short for that. None of the people that I know want to be involved in that kind of case.

It is Advisable to take a Modest Claim of up to $7500 to Small Claims Court

In addition, it is a bad business decision for me to get involved in the smaller cases. I do provide assistance to friends and family with these kinds of cases, but from a purely business perspective, I would be better off choosing to spend my time on larger cases. For these more modest cases, I try to guide them to Small Claims Court so they can get some compensation rather than no compensation. I can assist them, but in the background.

One Must Consider the Benefits and Risks Involved in Litigating Personal Injury Claims

Interviewer: What makes the case a good case versus one that is not worthwhile?

Roy Comer: In my opinion, every case needs to be evaluated for three major factors. I frequently use the metaphor of a three-legged stool: You must have all three legs or the stool tips over.

  • LIABILITY: Therefore, a good case needs to have the “first leg,” which is “liability.” We must answer the questions, “Who is at fault and why?”For instance, if somebody calls me up and says, “I rear-ended somebody on a freeway and I’ve been injured. I want you to sue the guy in front of me,” unless there are very unusual circumstances, I am simply not going to take that case because you can’t rear-end somebody on the freeway and recover for your claimed injury. A driver is required to maintain an assured safe distance between his/her car and the other cars on the roadway. Therefore, even if you think someone in front of you stopped for no reason, you need to leave enough distance in order to safely stop without crashing into them. Liability is the first factor, andwithout it, the case doesn’t go any further.
  • DAMAGES: The second “leg” of the analysis is a damages assessment. You have to have damages substantial or significant enough that it makes economic sense to pursue a claim. Here’s an example that I tell clients: If I were following you out of an elevator and you stopped and I bumped into you, it’s certainly wrong for me to bump into you, but any injury you suffered is simply not likely to be the kind of injury that would be worth pursuing. So, even if I’m a 100 per cent at fault for bumping into you, you’re not likely to have been injured to a degree worth suing over. The lawyer and the client need to work together to determine what is the full extent of the injuries and whether this is the kind of claim that is worth pursuing from a business perspective. In other words, it would not be worth the time and expense in order to obtain a small recovery.
  • CAUSATION: A subset of the second “leg” is an analysis of the causation issue. A defendant is not responsible for any preexisting conditions. In other words, it is not fair or just for the insurance company to pay for injuries that were suffered before the accident. Sometimes, that preexisting condition is the contributing reason that a person has suffered an injury because they were more susceptible to injury. If they were in a weakened condition, an otherwise relatively modest collision can cause serious injury to an already unstable spine. Injuries and causation require a complex analysis by someone with the requisite experience. My job is to ask the right questions, and work with the medical professionals to figure out the best way to present the client’s claim in the light most favorable to that client.
  • COLLECTABILITY: The third “leg” is collectability. Unfortunately, there are many times when a potential client comes in to see me and she may have a really good case but the insurance policy issued to the driver responsible for the collision is limited. In California, the required minimum insurance policy coverage is $15,000. Many of my clients are hurt by people that only have $15,000 in coverage. While it is true that the policy is not the legal limit of a wrongdoer’s liability, if that person has very few assets, there is no sense pursuing that person for payment of the damages suffered. For instance, let’s say the dangerous driver is a student at the university and he has a part-time job. Even if the injured person’s claim is worth more than $15,000, the injured person’s claim has a practical limit of the responsible person’s insurance coverage. There’s an old saying, “You can’t get blood out of a turnip.” In this situation, the claimant may not collect enough money to fully cover all the damages suffered. In short, unless the client has Underinsured Motorist coverage, even with a favorable liability analysis, and with serious and provable injuries, the case might be limited in its recovery simply because there’s limited insurance and the dangerous driver has insufficient assets to satisfy any verdict.

Being Cited as Being at Fault in an Accident Does Not Mean that It Cannot be Contested in Court

Interviewer: What if you’re cited in an accident for being at fault?Does that mean your case is doomed?

Roy Comer: I have seen many traffic collision reports from the California Highway Patrol or other police agencies that have many errors, such as the names of drivers listed incorrectly, or incorrect names of the streets where the collision occurred, orthe direction of travel of the vehicles switched, etc. So, just because you’re cited doesn’t mean that your case is over, but it certainly makes it harder to resolve that case in your favor. It would be a fool’s errand to say in the face of a traffic collision report placing primary responsibility on the prospective client, “Oh, no problem. We got a bad police report. Leave it to me; I’ll fix it for you.” It does make it harder to resolve the case in your favor, but just because you’ve been cited doesn’t mean that you have no case.

In California, Which is a Pure Comparative Fault State, a Person May Have Some Comparative Fault and Still Obtain Compensation

In California, which is a pure comparative fault state, you may be 30 per cent responsible and the other side is 70 per cent responsible or vice versa and you’re still entitled to have whole compensation less your comparative fault. This means that your damages are reduced by your percentage of fault. For instance, in a left turn collision, there are frequentlyquestions about whether someone was running the red light or whether someone was unsafely turning in front of the other driver. Sometimes those cases resolve at a fifty-fifty assessment of liability because you can’t figure out which person really was primarily responsible for the collision. Without an independent witness, it’s a contest of stories. In short, liability doesn’t have to be 100 per cent in favor of an injured person to collect in California. You can have some comparative fault and still collect money.

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