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Shapiro & Appleton

Important Information on How to Develop a Pre-Suit Workup and Handle an Accident Investigation

INTRODUCTION
If you've been injured in a car accident, the procedures detailed in this article are what your lawyer should be following. If you're an attorney looking for general information on how to conduct a pre-suit workup and car accident investigation, you've arrived at the right place. This article describes how to make initial client contact, perform client interviews, and take you step-by-step through the investigative process in a car accident case. If you have any questions, fill out our quick contact form or give us a call at 1-800-752-0042.

INITIAL CLIENT CONTACT

            It is useful to have a standardized "initial client phone contact" sheet when fielding the automobile accident cold call.  Appendix Item A is a sample form.  If at all possible the initial client call should be taken by an attorney rather than a staff member to establish rapport with the prospective client.  In addition to answering any questions the person may have, the attorney's goal in the initial phone encounter is to make sure that the three necessary elements for a successful Virginia car accident case are present: liability, damages, and insurance.

            You want to find out whether the other driver was the cause of the wreck and not your prospective client.  One shortcut to determining this is if the other driver was given a ticket by the police.  This is not always conclusive, but gives you some comfort, if the police found the other party at-fault.  You also want to make sure that there's no obvious contributory negligence on your client which could be a complete bar to recovery if a proximate cause of the collision.

            Next, you want to make sure that there has been some physical injury to your client.  Have they at least gone to the emergency room or had some immediate workup by a doctor?  If the accident has just happened in the past day or so, it may not be immediately apparent just how bad the injury will ultimately be or the extent of the needed medical treatment.  Here you are mainly trying to be sure that this is not a case with no significant injury at all or a long gap prior to the initial medical care.  Another issue in determining the likelihood of having support for a significant injury is the amount of property damage to the two vehicles in the wreck.  The more minimal property damage cases are difficult to get favorably resolved, even though there is no direct correlation between the amount of damage to the vehicles and the extent of injury to the occupants.

            The third prong necessary to have a case worth handling is that there is some automobile insurance.  Has the potential client already been contacted by the insurance company for the at-fault driver confirming coverage?  If not, does your client definitely have coverage available on their own car which would provide uninsured motorist coverage, if the other driver turns out to be uninsured?

            Once you have established that there is a potentially valid case, the next thing is to schedule an appointment for the client as soon as possible.  If you don't sign up the case quickly, you can be sure that someone else will.  You should consider making yourself available to go to the person's home or even hospital room as necessary for their convenience.

            If you don't have the three elements of a valid case, then decline the representation.  It is highly recommended to use a standard non-representation letter and keep a copy of these "pencil" files.  See our form which is Appendix Item B.

INITIAL CLIENT INTERVIEW

            After initial introductions, the client should be asked to tell their version of what happened.  It's best to not interrupt the client at this point, so you can get an idea about how they tell their own story and what they think is important.  Make sure to take good notes and/or have a staff member who will be working on the case at the first meeting with you.

            I suggest getting to the fee contract relatively soon in the initial client interview.  The fee contract that my law firm uses is intentionally kept very simple.  See Appendix Item C.  Contingency fee agreements must be in writing and must specify whether the fee is to be taken from the gross recovery rather than on the net recovery after expenses.  Rule 1.5(c) of the Virginia Rules of Professional Conduct (hereinafter "Ethics Rules").  You should take time to explain how the contract is for a percentage fee, so that the client doesn't owe you anything for your time unless and until a recovery is made.  They will be glad to hear that they don't have to pay you up front for anything.  Likewise you should go over how costs work in the case.  Most personal injury lawyers are used to advancing nearly all of the costs of the litigation themselves because most clients are not in a position to pay these monies up front.  You can explain that most of these sums are not too much prior to filing suit and are for things like collecting the medical records and getting the police report.  You can explain to the client that if you get to a point where the case can't be settled without filing suit that a decision will be made together with both the lawyer and the client agreeing to go into suit before that step is taken.  You can explain that the costs will tend to increase at that later phase if that becomes necessary, but that you can discuss that further at that time.  You should explain to the client that technically they remain responsible for the costs even if no recovery is made, but that you are not in the habit of suing clients for costs if they are not able to pay at the end of the case.  Ethics Rule 1.8(e).

            Right after I have the client execute the fee contract, I present them the medical authorization and general information authorizations.  See Appendix Items D and E.  It is important to use a HIPAA (federal privacy law) compliant form.  I typically have the client sign, but not date, the medical authorization form so that my paralegal can put a fresh date on it as it goes out to the healthcare providers.  I explain how these authorizations are necessary to get certain information we will need to move forward with the case.  The client gets a copy of everything that they sign in the initial client interview.

            It is helpful to have an intake form that you use in all of your automobile accident cases for the information obtained in the initial interview.  This will help when working with the file knowing the information has been recorded in the right place.  A copy of our firm's intake sheet is attached as Appendix Item F.  Most of the information is self-explanatory.  However, a few items are specially worth noting as follows:

$ Make sure you have the date of the accident correct because this will determine the statute of limitations.

$ Make sure you have information on all owners/drivers/insurers of the vehicles involved, including any car that was touched as well as any that may have contributed to any impacts.

$ Get all the car insurance information you can on your client, the car he's in, and the defendant's, including the carrier name, policy number, claim number, and claims adjuster contact data.

$ Get the names and contact information for all eye-witnesses as soon as possible.

$ Make sure you get the gist of what any at-fault driver said at the scene as these may be party admissions.

$ Get the names, phone numbers, and addresses for every healthcare provider that the client has seen for the injury.

$ Get the client's own health insurance information.

            Getting enough information to find all available insurance coverage is critical.  Further discussion of automobile insurance coverage will take place in the next section of these materials in great detail.

            Lost wages should be addressed at the outset of the case.  How is the client paid?  To whom can you address a lost-wage form at the appropriate time?  Make sure the client keeps good track of their own missed time from work so that they can check these numbers at the appropriate time.

            Ask about the client's prior history, if any, of injuries or claims.  Make sure to get enough information to know if there is a pre-existing condition issue in the case.  If so, you might as well go ahead and get those records sooner rather than later.  Does the client have any problematic biographical information, like a criminal record or a pending bankruptcy that you should know about?  You should explain how attorney confidentiality works and make sure that they tell you all of the bad news as soon as possible, so you can help work through any special issues or problems.

            Be clear with the client about what happens next in the case.  I usually explain that after initial letters that we are in a holding pattern until we hear back from them about their medical treatment.  In terms of time frames to get the case resolved, the medical treatment is the main determinant.  You don't want to demand the case until the plaintiff is 100% well or at maximum medical improvement.  Tell the new client that they need to keep you posted about when they're finished with any given healthcare provider and let you know the information about any new healthcare provider they go see because of the accident. 

            Make sure that they know what you are and are not doing for them.  For example, if you expect that they will handle their own property damage case, you need to be clear about it.  I normally tell my clients that the property damage will work itself out fairly easily, but if they have any questions about it, they can let me know.  I tell them that while dealing with the adjuster for the property damage, that they should not discuss their personal injury in any way, but direct the adjuster to me if there are any questions in that regard.

            The goals for the litigation and claim should be made clear with client at the outset.  You need to make sure that the client understands that all you can do is get them money compensation for their injury. If the client has some other agenda or unrealistic expectations, it's best to get those under control as soon as possible.  If the client wants to know what their case is worth in the initial client interview, I typically tell them that it's too early to know what the value of the case is before I've seen all of the medical bills and records, but there will come a time when I'm able to answer that question for them.  I make sure that they understand that no negotiation will take place without their express permission.

            Make sure that your file is well organized.  Ideally all of your automobile accident cases are organized exactly the same way so that it is easy to find documents as the case progresses. Typical sections for the file would include the following:

  •    Correspondence
  •    Medical Bills
  •    Medical Records
  •    Factual Investigation
  •    Legal Research
  •    Contract and Authorizations
  •    Account Balance and Lien Information
  •    Settlement Negotiation and Paperwork
  •    Pleadings (after suit)
  •    Attorney Notes
  •    Lost Wages
  •    Police Report
  •    Client's Insurance Information (Medical Payments and Uninsured Motorist Limits)
  •    Intake Sheet
  •    Witness Statements

            Calendaring the statute of limitations is critical.  You should have both a computer and a paper system to make sure that no statute of limitations is ever missed.  In my office, we calendar the statute of limitations (typically two years for Virginia personal injury, see Virginia Code §8.01-243) at intervals of one year, six months, three months, two months and one month out from the statute of limitations.

            To the extent that the case is against a government entity like the United States, the Commonwealth of Virginia, or a municipality, there may be special notice rules.  You need to do the legal research necessary to make sure that you are in compliance with these requirements as failure to do so can result in a case being thrown out just as if the statute of limitations was missed.  See Federal Tort Claims Act, 28 U.S.C. §2401(b), Virginia Tort Claims Act, Virginia Code §8.01-195.6, and rule for notice to Virginia localities, Virginia Code §15.2-209.

            Keeping the client informed is critical.  It is likely best to send the client a copy of all correspondence that goes out of your office and courtesy copies of all important incoming documents like police reports.  The more information the better as far as keeping the client happy.  Please make sure that they get prompt returns of their phone calls as failure to keep the client advised is a leading cause of bar complaints.

            Have some kind of check list or calendar system to stay current with the client periodically.  In a perfect world you would have a telephone call made by you or a staff member at least once a month to every client to answer their questions and keep advised of their medical status.

INITIAL TASKS AND INVESTIGATION

            Initial letters should go out the day that you first meet with the client, especially the letter to the defendant or their insurance carrier confirming your representations.  A copy of our initial letter to the defendant's insurer is attached as Appendix Item G.  One of the key reasons this letter needs to go out immediately is that once they receive it, the insurer is no longer allowed to contact your client directly about their injury case.  The initial letter to the defendant's insurer also asserts you statutory attorney's fee lien in Virginia, so that the case cannot be resolved without your getting paid.  In the event that the defendant's insurer is unknown, then a letter needs to be sent directly to the defendant themselves.  A copy of our standard letter for this is attached as Appendix Item H.

            An initial letter should go to the client telling them what further information you need from them.  This initial letter can also confirm your office's procedures about who is working on their file and the best way to reach you.  A copy of out standard letter in this regard is attached as Appendix Item I.

            You should put the client's own car insurance carrier on notice of potential medical payments and under-insured motorist claims.  A copy of our standard letter to the client's insurer is attached as Appendix Item J.

            You need to order the police report as soon as possible.  Once that document comes in you can check it to be sure that you have the right date and place of the accident and that there's nothing significantly different in the police officer's version of what happened from that of your client.  Any discrepancies need to be clarified as soon as possible.

            Getting in touch with any witnesses is critical.  Once you confirmed that a witness has something valuable to add to your case, you need to have some system by which you stay in touch with them during the pendency of the case so that they don't disappear on you.

            It is important to get photographs of the client's car's property damage and the scene of the accident as soon as possible.  In a perfect world you get yourself out to the scene of the accident early on.  At a minimum you need to document all of the important features of the lanes, signs and traffic control devices before they are altered.

            During your initial investigation, consider what other sources of information may be necessary or available.  Some data may not be available later if you wait too long.  For example, if there was a media report like a television station's local reporter at the scene, obtain copies of their videotape before discarded.  Likewise, 911 tapes are not necessarily kept for long periods of time and should be secured whenever possible, immediately.  If there is some issue having to do with the weather, then checking meteorological data sources early on is important.

            To the extent that there is going to be a traffic case against the defendant, you want to decide what level of monitoring of that is necessary.  In some circumstances, like a rear-ender, it may be enough simply getting a copy of the disposition of the general district court traffic case after the fact, to determine if there was a guilty plea.  In other circumstances, like a DUI charge against the defendant, it may be worthwhile to go yourself and/or send a court reporter to the general district court to preserve the information from witnesses and what the defendant says.  As traffic courts in Virginia are courts not of record, there will be no transcript unless someone orders a court reporter.

            If there are any possible liens in the case which will require payback from the client out of the proceeds of any settlement or verdict, make sure to be in touch with those entities as soon as possible.  Determining what liens exist and opening communication with entities involved early will make settlement smoother with less surprises.  Such liens that often arise in personal injury cases include the following, over and above medical provider liens which can be created both by statute and contractual obligation:

$ ERISA liens. Under some circumstances, the federal law requires the client to pay back their employer's self-funded, healthcare plan. A sample form to determine if there is an ERISA lien is attached as Appendix Item K.

$ Workers' compensation. (If workers' compensation paid the client for the same accident, any settlement without their permission is void.)

$ Medicaid. (This is government health insurance provided for people based on economic need.)

$ Medicare. (This is government health insurance which is provided to senior citizens and the disabled.)

            On all of these kinds of liens, the key is to be in touch with the folks early on.  It can often be very time consuming and difficult to even find out how much has to be paid back to these entities, especially Medicare.  So, the sooner you get in touch with them, the better.

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