Author: R. Clayton Allen, Richmond, VA Personal Injury Attorney
As a personal injury attorney, one of the questions I am most frequently asked is why an injured person needs to hire an attorney to represent them. Here's an outline of how I usually answer that question.
Sometimes you don't. If your injuries are relatively minor, if your medical treatment is for only a short period of time, and if your medical expenses and other damages are small, and if you are pretty savvy about business matters and negotiating generally, then you may be able to negotiate a settlement with the insurance company that will net you about the same or maybe even a little more than if you had an attorney. But that's a lot of ifs, and that only applies to small cases for reasons I'll discuss below and in Part 2 of this article. Consider the following:
1. Insurance companies have professional adjusters who handle their claims for them, and that's who you'll be dealing with.
These are trained professionals whose job it is for your case to cost the insurance company as little as possible. And that means for you to receive as little as possible. They are trained in how to handle claims and how to do that. They know that you have not hired an attorney and that you probably don't want to. The adjuster assumes you are a person who is willing to struggle along on your own without getting the information and help that you need. And that creates the opportunity for you to be taken advantage of.
2. When you are trying to handle something that you are not knowledgeable about or experienced in handling, it's very stressful.
You are making decisions about your claim without knowing how to properly make the decisions. Should you give a recorded statement to the insurance company? Should you sign the authorizations the insurance company wants you to? Are you including all the items that you can claim for in your case? Are you calculating them the right way? Is the amount the insurance company offering in settlement a fair amount? Should you sign the release they want you to as part of the settlement? Facing all these decisions without the proper knowledge and information to feel comfortable with the decisions you are making will make most people miserable. Isn't the peace of mind of knowing it's being properly handled to protect your legal rights worth something? And if you end up with the same amount of money as you might net with an attorney handling the case, then in essence you've just paid for an attorney you didn't get. Or the peace of mind.
3. When you are trying to handle something that you are not knowledgeable about or experienced in handling, and money is involved, you are likely to be taken advantage of.
Many people do not like to buy a car. Why? Often because the salesman is very skilled at getting you to buy and you are worried about being pressured into buying, but also because you don't really know which car is best and what is a good price. When you deal with an insurance adjuster, usually you are dealing with a very knowledgeable professional who is trained to persuade you to do what the insurance company wants and, ultimately, to accept a low offer. The adjuster knows "how the system works" and you don't. How will an adjuster try to take advantage of you? Well, here are a couple of the most common ways.
Insurance adjusters are trained to try and settle cases shortly after an accident for a small amount of money. The goal is to tempt someone who may not yet fully recognize the extent of their injuries and losses into settling cheap. The insurance company wants a quick settlement for a low amount so it can avoid having to pay a larger amount later when the losses are fully known. In the industry, it's called "flash money". The idea is to "flash" the prospect of immediate money in front of the injured person in hopes they'll take it. That's just one of the ways that insurance companies try to take advantage of injured people.
Another way insurance adjusters take advantage of claimants is the recorded statement. The insurance adjuster knows the right words to use in asking the questions to lead you into saying things using words that have a meaning or effect that you didn't realize. That type of interviewing is a learned skill.
Many people are shaken up after an accident, and have a fuzzy memory of the events of the accident. There's a medical reason for this. Often in the whiplash motion that accompanies many impacts, the brain hits against the inside of the skull and affects immediate short-term memory. This is called a "contre coup" injury.  Insurance adjusters take advantage of this when they take recorded statements. The questioning may go something like this:
Q: I guess things seemed to happen pretty fast out there when the accident happened.
A: Yes, it's almost like a blur.
Q: Do you remember seeing how many people were in the other car before it hit you?
A: No, I don't recall that.
Q: Do you remember seeing the color of the other car before it hit you?
A: No, I don't recall that.
Q: Do you remember noticing what make and model the other car was before the impact?
A: No, I don't remember noticing that either.
Q: It sounds like you didn't notice very much. I guess it happened so fast you didn't really see the other car before the impact.
A: No, I guess I really didn't.
What the adjuster knows and you don't is that Virginia has a rule of law called contributory negligence. Under that rule, even if the other driver is 99% at fault in causing your accident, if you as the injured person are even 1% at fault in a way that significantly contributes to cause the accident, then you lose. You don't get a dime. And based on your statement, the insurance company will argue that you are partly at fault too, because you weren't paying attention since the car was in plain view approaching before it hit you in the side. But the truth is you probably did see it, you just don't remember because of the type of injury you sustained. But the adjuster knows you don't know that.
About the Author: Clayton Allen has been helping clients with all types of personal injury claims for more than 30 years. He is highly respected in the legal community for his meticulous research and legal analysis. Outside of the courtroom Clayton serves on the Board of the International Hospital of Children, an organization which provides healthcare to children in underserved countries.