Never violate this basic rule: never give an oral statement
to the other sides insurance company. If you do, you
will regret it. Claims adjusters are hired because they
"sound good" over the telephone and they are extremely
well trained by company lawyers to ask questions in a manner
designed to hurt you and help them. You cannot beat an expert
at their game. Do not try it.
Claims adjusters know that if they can keep a claimant
negotiating with the adjuster then there is a high probability
of a successful settlement in favor of the insurance company.
Anyone who negotiates directly with a carrier, by definition,
cannot file a lawsuit and is therefore not to be feared.
While this sounds like an ad for lawyers, the truth is that
studies have shown that experienced lawyers can negotiated
settlements that are multiples of what individual claimants
can negotiate for themselves.
To successfully negotiate a claim with an insurance company
the basic rules of negotiation MUST be followed.
First, set a realistic goal before you begin negotiating.
This is critical. Do not begin a negotiation until you
are absolutely sure that you know the full extent of your
injuries and damages. If the damage has not run its
course or if there is a chance of future damage yet to unfold,
do not begin a negotiation. It is too early.
Second, just because an insurance adjuster calls and talks
does not mean you have to talk. Do not get into a discussion,
no matter how tempted you may be to do so. Use the occasion
to listen and when its over say: "I will think about
it and get back to you." Do not say: "let me think
about it." You do not need permission to do anything
in a negotiation when you have been damaged.
Three, never bid against yourself or always negotiate
in turn. If you make a "demand' [an offer to settle
by a claimant], then wait until the carrier makes an "offer."
In other words don't make a demand for $15,000 at the beginning
of a conversation and then at the end tell the adjuster
you will take $10,000 today. All that you will have done
is to PROVE to the adjuster that you are a greenhorn that
can be had for much lower a price. If your demand is $15,000,
wait for the carrier to make an offer.
Fourth, take your time. When you receive an offer, think
about it. Do not respond immediately.
Fifth, do not listen to anything but the number. Insurance
company adjusters take courses written by psychologists
to use words and approaches that will give them the upper
hand. They may sound nice on the phone, but these folks
are professionals who eat claimants for breakfast. No matter
what they say, ignore the words. The only thing that
counts is the number. Once you hear the number end the
conversation: "I will think about it." Then go
think about it before calling back with your responsive
demand.
The Time Bomb: Deadlines on Filing
Suit
Every province has statutes of limitations and procedural
requirements that place deadlines on when you can file a
lawsuit. Statutes of limitations differ from province to
province and depend also upon the nature of the claim.
The statutes of limitations which apply to your various
causes of action may differ significantly in timing, and
in some cases it can be difficult to readily calculate when
the statute begins to run.
Whatever the time period which applies to each defendant,
however, the effect of the Statute of Limitations is the
same in each case: in the event no Administrative Claim
or Complaint has been filed on your behalf within the requisite
time period, your action will be completely barred. In
other words, even though your case may be completely meritorious,
if you file one day after the time limit allowed by the
Legislature, you lose, forever.
Preserving the Evidence
Take two rolls of film of the accident location IMMEDIATELY
after a crash from every conceivable angle and location.
Lay a yardstick next to skid marks so someone can readily
compute actual distances based on the photograph. Look for
IMPENDING SKIDS. Tires just don’t begin skidding. As a braked
tire begins to skid it first leaves faint marks on the roadway
known as impending skids. Measure and photograph these marks.
They disappear within 48 hours so move quickly to record
them. An impending skid and a skid mark when taken together
gives a very accurate report of the actual speed of a car
before a brake application.
Take distant and close up photographs of scenes and objects
from every point on the compass. When in doubt, take another
set.
You cannot take too many photographs of the aftermath of
a collision, explosion, fire or other loss.
Remember that all evidence must be secured immediately.
Never be afraid to buy wreckage and if anyone should have
second thoughts about buying a wrecked Bronco, a Jeep that
rolled or a vehicle that has a gas tank that failed, keep
in mind that it is comparatively inexpensive to buy a wrecked
car, for example, compared to the value of a successful
product liability case and if worse comes to worse it can
be sold, but once it is lost it is gone forever.
Once you gain ownership of the defective product, lock
it up in a facility that you control. Never assume that
no one will want the wreckage of a destroyed automobile
If the evidence cannot be bought, at a minimum put everyone
on notice by certified mail, including owners, tow operators,
wrecking yards, police impounds, and the like, that they
must take every step to preserve important evidence and
the failure to do so will subject them to being sued for
allowing evidence to be destroyed.
When the product is in the possession of a third party
or one of the anticipated defendants, hire any lawyer to
immediately file an independent action for a temporary restraining
order and a preliminary injunction to avoid alterations
or destructive testing. The temporary restraining order
should be carefully drafted so that anyone receiving notice
of the order and in control of the article will be required
to deliver it to the possession of a neutral person and
to initiate preventive measures against damage in transit.
Always preserve written materials that came with a product:
packaging, inserts, manuals, warranties and similar written
materials.
Lastly, let no one destroy, throw away, or leave behind
anything that is part and parcel of the any product.
Photograph the location where evidence is found and then
remove it for safe storage.
Make a Record
The corollary to preserving evidence is to also document
damages. Report physical injuries to doctors, emergency
rooms and obtain appropriate medical treatment. Appropriate
treatment is that care recommended by a doctor. Do not substitute
your judgment for that of an experienced medical professional.
If you do, it will be used against you whether you over-treat
or under-treat.
Do not hesitate to "get checked out" when you
feel "O.K., but shaken up." Many times the onset
of physical complaints begins 12 to 24 hours later. Maybe
you did walk away from being rear-ended by a truck and only
feel "shaken up." But tomorrow morning when you
get out of bed it may be different. See a doctor following
the collision will insure a preliminary diagnosis and perhaps
minimize the discomfort and future treatment you may need
later.
When reporting to doctors, take extra care to identify
specific complaints. If something does not feel "right"
it should be documented in your medical file and provided
to your physician in order to allow the doctor to render
an informed medical opinion. Even though you feel it is
"no big thing" now, several weeks from now when
the minor crick in your back blows out and becomes a fully
ruptured disk requiring major surgery it will have been
far better to have the initial medical entry in order to
allow an orthopedic surgeon to opine that the onset of the
fracture to the outer wall of the disk was the initial insult,
not bending over at toilet three weeks later, as the defense
will argue to the jury.
Lastly, keep receipts of everything and maintain a calendar
of post-accident events that will help you recall later
the days you could not work, were unable to enjoy your leisure
time or spent Saturday at the physical therapist.
No matter whether it is a personal injury claim or any
action in which you are the plaintiff, keep a fully detailed
record of the harm you suffered.
Hiring the "Right Lawyer"
It is extremely important to hire the right lawyer and
law firm to respresent you in your claim..
Law, like medicine, has become a specialty of information
providers. Today, the family practitioner provides referrals
to specialists in cardiology, rheumatology, urology and
the like. But there is no equivalent service widely used
when someone needs to find a lawyer. When you are in need
of legal assistance, you are on your own. Finding the "right
lawyer," a specialist with substantial knowledge and
experience in resolving specific legal problems, is what
you want when you need a lawyer. It is the sole, most serious
pitfall, for the average person.
Often, people begin looking for a lawyer to represent them
when they are confronted with a crisis. They may be dealing
with a family death, serious injury, divorce, or criminal
charge. Many times it is easiest to choose a lawyer who
is friendly and supportive, without conducting research
into his or her background and experience.
Choosing a lawyer simply because he or she is understanding
may lead to later dissatisfaction. While the Yellow Pages
or a television advertisement may be a good place to start,
keep in mind that such sources are merely that and only
a starting place.
Lawyers should be selected for their expertise and experience
in specific categories of cases. The "right lawyer"
is the person who has substantial experience handling a
case very similar to yours, who can and will take action
at once. She or he does not have to "look into it,"
"think about it and call you back" or "check
the most recent court decisions." The "right lawyer"
knows what to do immediately, acts effectively and with
little wasted effort or wasted expenditures of your money.
Your search for the "right lawyer" should be
expected to take several days. Although it is a challenging
process, this commitment will yield important rewards. Begin
as soon as possible because there may be statutes of limitations
or other deadlines that may be critical. In some cases you
have only a limited window of opportunity to take legal
action.
Think carefully about the legal services you require. You
may need on-going, regular legal advice from someone who
has experience advising individuals or businesses in your
line of work. Other attorneys have particular experience
in drafting contracts or wills, representing estates or
working through land development or zoning-related issues.
Many lawyers practice law for a lifetime and never set foot
in a courtroom because their work is primarily consultative
and oriented toward planning. Other attorneys focus on providing
remedies that require litigation, and are experienced in
appearing before juries and trying complex civil and criminal
cases. The bottom line is that there are many, many lawyers.
You just need one. The "right" one.
Finding Legal Specialists
If you were forced to bet your home on the outcome of an
athletic event between two players in boxing, tennis or
golf, you would do a substantial amount of homework. You
would do a literature search, call coaches, talk with players,
call Las Vegas to learn what the professionals had to say,
and find videotape on film of previous matches. The same
approach applies when it comes to finding the "right
lawyer."
Lawyers find the "right lawyer" by networking
with the members of their profession who have experience
in related areas. After making multiple calls they develop
a "short list" of attorneys with special expertise.
There are many ways that you can achieve the same goal.
Every community has lawyers who are experts in specific
areas of the law. Finding a specialist requires more than
asking friends and relatives for their recommendations.
Unless they have extensive experience with the legal community,
their advice has to be considered in the context of their
background in retaining lawyers. To rely merely upon advice
from friends and relatives may greatly limit your prospects
unless they are involved in a line of work that is related
to your problem. Artists and decorators know who does the
best job of picture framing in town. For example, if your
brother or sister has been served with divorce papers and
in looking for a lawyer you learn of two family law specialists
and a "brilliant trial lawyer." Remember, the
key is networking. Call the "brilliant trial lawyer"
and ask him or her who they would hire if they were sued
for divorce.
If you have a family or business attorney upon whom you
rely, your work is all the easier, but watch out. If your
lawyer refers you to someone in his/her firm, this person
may not be your best choice. Consider that person as someone
to be added to your short list but nonetheless follow the
guideline and suggestions you will find here before you
make a final decision.
Interviewing the Specialist
There is no substitute for a face to face meeting when
you are trying to select an attorney. You will not only
learn whether a lawyer has the necessary expertise, but
also whether you could form a comfortable working relationship
with him or her.
Call each attorney on your "short list" to see
who would be available to be interviewed about taking on
your case, and what the fee schedule would be for this meeting.
Some law firms provide clients with a brochure, press clippings,
or a curriculum vitae, which details a lawyer's education,
achievements, and experience. Ask for any information available
on the lawyer or your subject matter, and review it carefully.
Nothing beats a professional resume - called a curriculum
vitae or "c.v." -- which will provide detailed
information about professional training, experience, academic
acumen, honors, awards, publications, speaking engagement,
bar and community activities. This information tells you
how a person is regarded by other professional and is invaluable.
If a lawyer does not have a c.v. it means that he or she
has never testified as an expert witness, has not been recognized
by professional affiliations for which a c.v. is needed,
and has chosen not to report his/her professional attainments
on purpose.
Now is the time for comparison shopping. Read for substance
and compare the background and work experience of one lawyer
with another before you call for an appointment.
When you call for the appointment, describe your problem
in twenty words ["I need an estate plan; my wife and
I have a net worth of $1,000,000." "My husband
filed for divorce, he's an engineer, we have two children
and we own two houses." "I work for the city maintenance
department with strong chemicals and was just diagnosed
with leukemia."].
At your meeting you should give a clear summary of your
situation and the services you are seeking. It is helpful
to bring a one page summary of all the relevant information,
including dates, times, names and addresses and which provides
basic "who, what, where, when, why and how" information.
Come prepared with all the documents that help tell your
story, such as correspondence, photographs, accident reports,
police reports and medical records. By examining this information
the lawyer can quickly determine if she or she has a conflict
of interest, in which she or he represents someone whose
legal interests are in opposition to your own. Having all
the records, receipts, reports and everything else you have
gathered means that you mean business. Starting out by reporting
you left the police report at home does not reflect well
on you.
When talking with a lawyer you are talking with a specialist
with unique knowledge, just like your auto mechanic. Always
ask these questions and start out with a clear discussion
of money:
· What will it cost?
· How bad is it?
· How soon do I have to do something?
· Have you done this before?
· Are there any options?
· What are the odds of getting it fixed?
· When will it be done?
· Who is going to do the work?
· When can you get started?
Every major insurance company and corporate defendant begins
investigating potential claims immediately. So should you.
Evidence should be preserved instanter [an old but wonderful
legal word that best explains how important this advice
is] and in some cases a professional engineer is required
rather than an investigator. Discuss what kind of investigation
would be appropriate and whom the lawyer recommends.
An experienced lawyer's record should speak for itself.
Check the results this attorney has obtained for clients
who needed the same kind of services. Learn if he or she
generally works with a certain category of individuals or
businesses, since specialization is to your advantage. Ask
a trial attorney how many cases like yours she or he has
both tried, won, lost or settled. Do not be afraid to ask
for a copy of a trial brief, settlement conference, or pre-trial
statement that was filed with the court so better acquaint
yourself with the type and quality of the attorney¹¹s work.
Many attorneys will work with other lawyers, their partners
and employees who are called "associates" on your
case It is important to know what their qualifications are,
check what their level of involvement would be, and whether
the person you are interviewing would be the lead attorney
or decision-maker on your case. Find out who will be working
on your case on a day-to-day basis. Ask to meet the legal
staff, if they have not been introduced to you. Remember
that when you are in a hospital you see the doctor usually
once a day, but it is the nursing staff that provides hourly
care. The same is true in the law office. Lawyers perform
direct services, but they also give instructions and orders
to others. Find out who those people are and what they do.
You should ask what course of action the lawyer suggests
in your case, and be wary of an answer that contains lots
of assurances but lacks concrete steps and a range of time
the tasks would require. Determine what procedures will
be followed to make sure all time deadlines will be met
in your case. Many cases require the testimony of an expert,
who is a specialist in a given field, many times a university
professor, medical doctor, economist, accountant, or scientist.
You should ask whether your case would be assisted by an
expert, what kind of expert should be considered, which
experts your attorney recommends, and when they should be
retained. How much will they charge and who pays is discussed
below.
Keep in mind that if you are going to litigate, your attorney
will have to tell your story to a judge and a jury. You
should try to imagine what kind of impression the attorney
would make on them, and how convincingly he or she would
present the facts of your case.
As a routine practice, determine how you and the attorney
would resolve how your case should proceed. Does his attorney
want to make all the decisions or does she or he enjoy shared
decision-making? If there is a disagreement, are they open
to second opinions and what happens if you do not get along.
How would a change of counsel be accomplished? You should
determine whether the attorney carries adequate professional
liability insurance for a case like yours. In addition,
ask if he or she has ever been sued for malpractice, how
many times and more importantly the outcome. No professional
should be offended if you explain that you are bringing
up these unlikely possibilities as a matter of policy.
No interview would be complete without finding out what
your own responsibilities would be. Ask if there are any
tasks you would be involved in, and what your role in decision
making would be. Most clients make the mistake of expecting
the lawyer to initiate communication with them and most
lawyers intend to do so and desire having a well informed
client. But without a formal structure, it will not happen.
Understand that initiating communication is your responsibility
and do not expect to be able to accomplish it by telephone.
Many lawyers are frequently out of the office, appearing
in court or taking depositions. Busy lawyers do not remain
in their offices all day. Court appearances, arguing motions,
interviewing witnesses, taking depositions into the dinner
hour, traveling to meetings outside the office, attending
continuing education programs and bar meetings are common.
They will routinely not be there to accept a random call
and may not be able to call you back when you will be available.
Telephone tag does not accomplish your goal of being informed.
Be sure that you talk about the best ways to keep each
other updated. Telephones do not work nearly as well as
regular face-to-face meetings or scheduled telephone conferences.
Plan on follow-up meetings with your lawyer at agreed upon
times, perhaps every 30 days at first and thereafter as
needed. Ask for copies of correspondence and documents filed
in court. If you do not understand what they mean, save
those questions for your next meeting. You must stay informed,
but you do not want to abuse your welcome, even though you
may be very anxious about your case.
Consider your lawyer in the same manner as you do your
doctor. After you see a physician it is common for him or
her to order tests, prescribe medication or to take some
other action, but always you are asked to come back in a
certain period of time. The doctor does not make the appointment.
You do. Follow the same practice with your lawyer and arrange
for follow-up meetings. One of the best ways to do this
is by scheduling telephone conferences. Ask the lawyer,
legal secretary or other person responsible for scheduling
to set a meeting by phone when the lawyer expects to be
in the office. This will help you avoid telephone tag and
increases the probability of a successful exchange of information.
Understanding the Fee Agreement
If you think you have found the "right lawyer,"
you will want a written fee agreement. Unless you sign a
written fee agreement at the outset, the probability of
your having an amicable conclusion to your relationship
is zero. Ask for a copy of the attorney’s fee agreement.
As with all documents, make sure that you understand it
fully before you sign it. No reputable attorney will pressure
you to accept a fee agreement on the spot.
In Nova Scotia contingency fee agreements are allowed.
These specify clearly the basis for calculating the fee
based on a contingent result. These agreements must be
filed with the court and are subject to review.
Creating a Working Relationship
After your interview, take time to consider whether you
would be comfortable in working with this person as your
lawyer. Ask yourself whether or not she or he gave you clear
and direct information. Will they be available in an emergency?
Consider if the attorney spoke knowledgeably and with a
minimum of legal terms. Think about whether this lawyer
understood and shared your goals. As a client will you be
a co-participant or will the lawyer be making all the decisions?
Did the attorney give you his/her home phone number if you
have an emergency?
The importance of creating a comfortable working relationship
with your lawyer cannot be underestimated. The road to obtaining
the legal services you are seeking may be long, and it will
take a considerable amount of teamwork to get there. If
you make the commitment to find an experienced lawyer with
whom you can work jointly, you will be well on your way
to the best possible result.
Our Firm Philosophy
Nearly all lawyers go to law school to "make a difference."
Along the way most lose sight of that worthwhile goal.
Our firm represents individuals, consumers, injured workers
and small businesses, individually in personal injury/wrongful
death cases and in class actions in cases involving a wide
variety of injuries.
We are committed to serving the public interest through
private court action that will benefit a large class of
individuals and at the same time "encourage" others
to treat the public fairly and responsibly.
All our personal injury work is on a contingency basis.
As long as our clients follow our advice, if there is no
recovery there are no fees or charges.
I hope these pages will help you be a better consumer of
legal services, help you obtain the assistance you need
to achieve the best possible result and most importantly
avoid the common pitfalls that have denied justice to good
people who did not understand some of the concepts explained
here.
This report has highlighted what you need to do increase
your negotiating power with insurance companies. One advantage
you have during the beginning stages of your case is that
you alone control access to much of the evidence. The more
of it that you preserve and protect, the more of it you
can use to your advantage.
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