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Disclaimer: The materials available at this web site are for informational purposes only and not for the purpose of providing legal advice. You should contact the Law Firm of Trevor J. MacLennan to obtain advice with respect to any particular issue or problem. Use of and access to this web site do not create an attorney-client relationship between the Law Firm of Trevor J. MacLennan and the user or browser. No attorney-client relationship or any confidential relationship is created by the sending and reading of e-mail to or from any person at the Law Firm of Trevor J. MacLennan.
Do I have a good case?
Can I negotiate a settlement of my case without a lawyer?
What will it cost me to consult with a lawyer about my case?
What will it cost me to be represented by a lawyer?
Can my case be settled without trial?
How much is my case worth?This, of course, depends on the facts, and each case will have its own unique set of facts.
Nonetheless, in general, a person injured in an accident has a good case only if each one of three elements is present.
If one or more of those three elements appears to be missing entirely, the case is not good. At best, it will be a gamble on trying to establish the missing element. If one or more of the three is weak, the case is weak.
The three elements are:
1. There was actual injury caused by the accident.
2. The applicable law holds someone responsible.
3. Insurance or other resources are available to adequately compensate.
There was actual injury caused by the accident.
It may seem obvious that, to have a good case, there must be an injury. But occasionally the idea is expressed that, if you've been in an accident caused by someone else, you are automatically entitled to compensation-even if you are unharmed. That is not the case. The nature and extent of injury must be proven for compensation to be awarded.
For compensation to be awarded, it must also be proven that it was the subject accident that caused the injury. What caused a condition or symptoms is often vigorously contested in accident cases. That issue can be a weakness in an otherwise good case.
The more significant the injury and its consequences, the "better" the first element of a good case.
(Note: experience suggests there's hardly a truly injured person alive who wouldn't trade their "good" case for a return to pre-accident status. A good lawyer with experience in accident and injury law can help organize and effectively present compelling evidence of the injury to secure just monetary compensation for a serious injury. He can't ever make things the way they were. In that sense, there is no such thing as a "good" case.)
The applicable law holds someone responsible.
Sometimes, as in a simple two-car traffic accident, fault can fairly easily be attributed (although who the law enforcement officer ticketed is not considered controlling in Colorado civil cases).
In other instances, the laws applicable to Colorado accidents can be very complex. All sorts of different of rules and statutes may potentially apply.
If a federal agency is involved, special laws and procedures involving administrative claims and federal courts will likely control. If an employee or employees of the State of Colorado or one of its agencies or of a county or city, municipality, school district, special improvement district or other kind of district, agency or political subdivision are involved, the governmental entity and its employees are given special protections by Colorado law. Those protections include complete immunity in many instances and a strictly-enforced requirement on the injured person to provide written notice containing certain specified information to certain statutorily identified parties within a very short time of the accident (which deadline is sometimes missed by the unwary resulting in their claims being lost).
If the accident took place while the injured person was in the course of his employment, worker's compensation laws may apply.
The standard of care applicable to landowners (as they are specially defined by statute) for injuries caused by a dangerous condition on property for which they are responsible depends upon the status of the injured person as a "trespasser", "licensee" or "invitee".
If more than one person causes an accident the percentage of causal fault must ordinarily be assessed, and that assessment dictates what percentage of responsibility each will have for the total damages of the injured person. If the injured person himself is at fault or partially at fault for causing his own injuries, damages will ordinarily be reduced by his percentage of fault or barred altogether if he was 50 per cent or more at fault.
If the accident resulted in death, special rules apply to who can bring suit for losses suffered and for whose benefit.
Numerous special interest groups have been able to get the legislature to pass laws applying special standards in suits against their particular group. The injured person may have signed a waiver of liability which may or may not be enforceable.
A statute of limitation can bar the injured person from pursuing a claim or suit after the running of a certain period of time. What that time period is varies depending on the circumstances.
These are just a few of the considerations. The list goes on.
Also, the applicable statutes or rules are sometimes subject to more than one interpretation and are not always uniformly applied.
Eyewitnesses may have different versions of what happened.
Evaluating and establishing legal responsibility for causing injury can sometimes be easy. It can often be hard.
But in short, to have a good case, you must have some evidence that someone else was at fault in causing your injury and then hope that the law will enforce that person's culpability.
A good lawyer with experience in accident and injury law can help marshal the evidence and the law that best support the claim that someone is legally responsible for causing your accident.
Insurance or other resources are available to adequately compensate.
This third element of a good case is not as readily apparent as the other two. But it is just as essential to there being a good case.
With occasional exceptions, a person who has suffered injury in an accident caused by someone the law recognizes as being responsible unfortunately does not have a good case if the person responsible for the accident has no insurance or other means by which to pay for the injury, damage, and loss he has inflicted.
If the at-fault person or company has no insurance covering the conduct involved and has no assets, then the injured person has no practical way of collecting compensation.
The main exception to this is the situation where the accident has been caused by an uninsured motorist. There, the injured person has a claim or lawsuit with his own automobile insurance company under uninsured motorist coverage.
An otherwise good case can be diminished if the at-fault person or company has inadequate insurance and no assets. In that instance, the injured person is likely limited to recovering only the at-fault party's insurance amount even though that amount may be inadequate compensation for the injuries and losses suffered.
There are also statutory limits on the amount of damages that may be collected in certain situations. One such example is the cap or ceiling, subject to very limited exceptions, placed by Colorado statute on the amount that can be awarded against government entities and their employees for any one injury to one person in any single occurrence. There are also certain statutory limits on collecting compensation for non-economic damages (such as pain and suffering, emotional distress, and loss of enjoyment of life) that apply more broadly than to just government entities.
But the third element of a good case is satisfied when those who the law holds responsible for causing the injury have adequate applicable insurance or assets with which to pay for the loss inflicted.
A good lawyer with experience in accident and injury law can explore what insurance is or may be available and explain what statutory limitations on damages may apply.
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Can I Negotiate a Settlement of My Case Without a Lawyer?
You can. But you take a risk by doing so.
It is not prohibited, and if you can handle the matter yourself all the way to a conclusion (not just engage in negotiations that don't result in a settlement), you will avoid paying attorney fees.
However, bear in mind the mission of the insurance company with which you are dealing is likely to be to pay as little as it possibly can to settle the claim. An insurance company's knowledge and experience in these matters, if not matched, can easily result in a settlement skewed in its favor.
If you don't do a good job you are very probably stuck without recourse. To settle a case an insurance company will ordinarily require you to sign a release. The release will customarily contain language carefully worded to prevent the claim from ever being re-opened-even with the help of an attorney-if you eventually have second thoughts about the fairness of the amount paid in settlement or if your injuries turn out to be more severe than you believed when you signed the release.
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Usually nothing.
Without a consultation it would be difficult for a lawyer to know whether to accept a case. But if, after consultation, the case is not accepted, no attorney/client employment agreement has been established.
Consequently, many accident and injury lawyers are willing to discuss-either personally or through a subordinate-a potential case at no cost.
The consultation is ordinarily by telephone. An in-person conference-- also at no cost -- may be scheduled if circumstances warrant.
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There are two separate items involved: (1) attorney fees and (2) costs.
Attorney fees
There are a number of possible fee arrangements, including hourly fees, flat fees, contingent fees, and even a combination of those. Most accident and injury lawyers prefer to work on a contingent fee basis.
A contingent fee is one in which the attorney's fee is a percentage of the eventual recovery. If the case fails and there is no recovery, no fee is owed.
Except in certain kinds of cases, such as worker's compensation cases, fee amounts are not set by rule or statute. Thus, hourly amounts, flat fees, and contingent fee percentages can vary from lawyer to lawyer. Still, while no particular contingent fee percentage is set by rule or law, there are certain percentages entrenched to a degree by custom. Sometimes, when accepting a case, a lawyer may adjust his customary contingent fee percentage upwards due to the complexity of the case or a high risk of no recovery or downwards if the case has particular merit.
Costs
Prosecuting a personal injury case invariably involves costs separate and apart from the attorney's fees.
Some of the more common costs are: the cost of obtaining medical, employment, and other records; filing fees, jury fees, and e-filing fees paid to the court; fees paid to reporters and videographers to take and transcribe depositions; and fees paid to experts such as doctors, engineers, and economists to author reports and, if necessary, testify at trial.
Costs vary in amount from case to case but routinely run into the thousands of dollars.
The employment agreement between the attorney and the client should spell out the matter of costs. Typically, the client is responsible for all costs. The lawyer may advance payment on costs if necessary. When he does, the lawyer will be reimbursed out of any settlement (in addition to, not as part of, his fee from the settlement).
If there is no settlement, the case goes to trial, and you prevail, the losing party in most cases will be ordered to pay or reimburse your costs as part of the judgment in your favor.
If the case goes to trial and you lose, payment of the costs incurred in prosecuting the case remains the subject of the contract between you and the attorney. You can also expect to be ordered by the court to pay the costs of the winning party (although not, except in highly unusual circumstances, the winning party's attorney fees).
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Yes. But sometimes what is offered in settlement makes going to trial a better alternative.
Cases that settle far outnumber those that proceed to trial. Cases can and do settle before suit is filed, after suit has been filed, and even during trial.
However, when the injured person and the representatives of the party claimed to be at fault have irreconcilable differences regarding the case's settlement value, the case must be tried.
If you are confident that what is being offered in settlement is unreasonably below the fair value of the case, then trial is likely to be a better alternative to accepting settlement on those terms.
Back to top of page A case does not have a preset value. Its worth is not determined by your lawyer alone. Its worth is a subjective assessment that is ultimately determined through negotiations or, if negotiations fail, by trial.
Only after all relevant information has been acquired can a prudent lawyer form a reasonable opinion on a case's approximate worth. This point may be fairly early on or much deeper into the case. If significant new information develops, a re-assessment may be needed.
The lawyer's assessment, though, is not the last word on the case's worth.
For one thing, a lawyer cannot settle a case without the permission of his client. After considering your lawyer's opinion, it is you who must decide what the case is worth to you.
In the second place, the other side will have its own opinion on what the case is worth and that may be a very different evaluation.
It is important to be represented by a good lawyer with experience in accident and injury law who can effectively get across to the other side just why your evaluation of the case's worth should be given full consideration.
But if agreement cannot be reached on a mutually acceptable figure (or at least on a settlement figure, although it may be more or less than what one or both sides think the case is truly worth), the matter will go to trial.
At trial, a jury will tell the parties how much the case is actually worth.
If you follow the news, you will know that juries can sometimes come up with surprising verdicts. That keeps accident and injury law forever challenging and exciting!
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