Pam: We’re discussing Barry’s book, Myths and Mistakes which is available for free download at fightingforwhatsright.com.
We’re moving onto the second half of the book, ‘The Mistakes’.
Why do you see mistakes being made?
Barry: There are couple of reasons that you see the mistakes being made. The first is, that people really don’t appreciate the tough environment that we’re dealing with. With skeptical jurors who’ve been conditioned by this longterm public relations campaign by the insurance industry that has people using the term ‘Frivolous Lawsuit’ fairly freely to describe somebody else’s lawsuit. You have people experiencing a certain amount of sheepishness and reluctance to actually hire a lawyer to get the kind of help that they need because they don’t want to feel like they’re being sue happy or rushing into go to court and things like that.
The other thing that really causes people to make mistakes is that, people place an enormous amount of trust in insurance companies to really treat them right, and to treat them fairly. When the fact of the matter is, when you go up against an insurance company, you’re their adversary, and as a profit making business, the best thing for them to do is to minimize the cost of your claim which means paying out as little money to you as possible when things are all said and done. Coupled with this, is the things that people tend to believe about the civil justice system, which isn’t just aren’t true, which are the myths that we discussed earlier.
Pam: So what I’d like to do is go through some of the mistakes that you mention in your book that people seem to make when they are handling their own cases before they hire a lawyer.
The first one you mention relates to Statutes of Limitations.
Barry: So what the Statutes of Limitations is, it’s a deadline for actually filing a lawsuit. When you make a claim against an insurance company, that’s not an actual lawsuit. An actual lawsuit involves filing papers with the courthouse and sending the Sheriff out to serve the defendant with the summons. That has to be done before the statutes of limitations expires. Typically, for most accidents it’s going to be two years from the date of accident. If you let that statue of limitation’s date pass without filing a lawsuit, you’re going to be barred from collecting any type of compensation at all for any kind of injuries that you might have suffered in an accident.
So, where people make mistakes is in two ways. The first, is they let that status of limitations expire, that they go beyond that two year deadline. And for the most part, they’re really just out of luck. The other way that people make mistakes is, they wait until the eve of the statutes of limitations to go about trying to hire a lawyer. It’s two weeks away and they figure well now is the time to get a lawyer involved because I’m up against this deadline. And the problem that arises when people wait until the eve of the statutes of limitations is that, it really increases the risk of a bad result in one way or another.
First, it may be very difficult for them to hire a well qualified lawyer. In my office this is a matter policy. Generally speaking, if somebody comes in with less than a month to go before their statutes of limitations is going to expire, we’re going to tell them, we can’t help them, because there’s too much of a chance of other mistakes being made.
You can run into a situation where you have witnesses forget what happened, you can have witnesses move away or die and you lose that testimony. There could be physical evidence that disappears during that time when you’re waiting to file the lawsuit. For example, if there’s a product involved, the product may be changed or thrown out. If it’s a car accident, skid marks on the road may be gone. So, these are all things that make actually winning a lawsuit that much more difficult. You can have errors in how the suit is prepared, you may misidentify defendants, there may be people who should be brought into the lawsuit, who aren’t, because the proper investigation isn’t done.
And the last thing is, that when you wait until the statutes of limitations is going to expire, the lawsuit really has to be filed, there’s no real opportunity for an out-of-court settlement. And you know, once a lawsuit’s filed, you’re certainly incurring a lot more expenses which come out of the clients pocket when thing are all said and done. So it makes getting a fair outcome for the client that much more difficult.
Pam: That’s good to know.
I should let our listeners know that there is a free report regarding Statutes of Limitations in the Resource Center at fightingforwhatsright.com.
Another mistake you reference is failing to accurately complete an accident report.
Barry: You know, people have the idea that they actually have to complete an accident report when they’ve been involved in an accident, and they don’t, unless it’s something that you’re required to for your work. You’re certainly well within your rights to decline and complete an accident report, for example, if you fell at a store.
But if you’re going to, you certainly need to do so accurately. And what I mean by that is, you want to be descriptive about what happened in terms of the roles of other people or other things that caused your accident. So if you slip on water in an aisle of a grocery store, you want to make sure that what you write down is that, you slipped on water, as apposed to, I fell while walking down the aisle.
The other thing you want to be careful to do is reference all the body parts that hurt. If you hurt your knee and your back, and your knee hurts the worst, you’re certainly going to list your knee, but you also want to make sure you say, “my knee and my back both hurt”. If you don’t include all those facts, the things that actually caused your fall, the parts of your body that were hurt, one day down the road you may be facing a situation where you’re in front of a judge and a jury and the defense lawyer has blown-up that accident report on a three-by-four foot poster board and he’s talking to the jury about the fact that you never mentioned that you hurt your back or that there was water in the aisle that caused your fall. And in an environment where people are skeptical of you, where your creditability is always going to be under attacked, that could be a real real problem.