Personal Injury Cases: What Is The Goal In The Mediation Process?

When I ask others about the goal of the mediation process, they often respond that the goal is to “settle the case.”

That’s wrong.

For most of our personal injury cases, the goal of mediation is to get the defendant and insurance company to offer as much much to settle the case as they’re ever going to pay.  We want to find out the maximum amount that they have and to get them to put it on the table.

If it settles the case, great.  But,  it may not settle the case.  Far too frequently, insurance companies offer amounts that will never be enough to settle the case.   And that’s okay.  Because even if it’s too little to settle, at least you’ve learned information that can help you to go forward.

What you don’t want to do is complete the mediation without settling, go do a bunch of work and incur a lot of expenses on the case, and then have the insurance company offer a little bit more down the road at a later time, when it can settle for more but the client ends up with less because of  the increased expenses.

Now, if a lot of additional work is necessary to convince them to pay more, that’s okay.  But you don’t want to leave the mediation not knowing the other side’s bottom line for the day.

Posted on: October 29, 2011 |

Stages Of A Claim: The Investigation & Healing Stage

In most cases, our clients come in to see us shortly after their accident.

Both of us have jobs at that point.

You have two main jobs:  to get better and to document your injuries.  You get better by going to your medical providers, following their advice, and doing what is necessary to get better.

You document your injuries by taking photos that help show your injuries.  These may include photos of your injuries or photos of your car, for example.  You also help document your injuries by keeping a journal for us telling us about your every day struggles with coping with your injuries.

During this time, we primarily have two jobs.  First, we’ll contact the other side to let them know that we’re involved so they’ll quit contacting you.

Additionally, we’ll investigate your claim.  In a simple car wreck case, that might just mean getting the accident report and going to the scene to verify what happened.  In more complicated cases, it might mean going ahead and hiring experts to start preparing the liability.

This phase generally lasts until you get better or you get to a point where your doctor tells you you’re not going to get better.  While there are exceptions, it’s generally a bad idea to try and settle your claim without knowing your prognosis.

So that’s usually the first stage in claim.  Once you’ve healed or made as much progress as you’re going to make, we move on to the second stage, preparing for pre-litigation settlement negotiations.

Posted on: October 28, 2011 |

Take What You Read On Personal Injury Websites (Including This One) With A Grain Of Salt

Never trust what you read on an attorney’s website — including this one.

I was running a Google search for something, and I stumbled upon a website from another personal injury attorney in Dallas.  As I glanced at it, I noticed that something was terribly wrong.  Some of the advice he was giving was just wrong.  And it wasn’t a matter where we had a difference of opinion — that happens.  His website contained information saying that the law was X when the law changed many years ago.

I don’t want to generalize, but I think it’s safe to say that many  (or perhaps even most) personal injury websites aren’t written by lawyers, but are written by marketing companies.  Many times, these companies aren’t experts in the law, and they make mistakes. 

But even when websites are written by lawyers, problems can still arise.  I’ve written every page on this website.  But often, the law changes.  I try to go back and edit the significant pages, but I can’t go back and edit every blog post that’s been written about every little change in the law.

That’s why it’s so important to call an attorney.  While we strive to provide good, general information to help you make better informed decisions about whether you need to proceed on a claim, and how you need to proceed, sometimes the law changes.  When something comes up for you, call us.  That way, you know you’re getting the best information available, and we can tailor advice to your situation instead of you hoping that some general rule applies to your situation.

Wrongful Death Claims Stack Up At Concert Venue

Stage collapses resulting in deaths have dominated the news lately, and are prompting the filing of wrongful death lawsuits.

This reported case was filed by the family of a woman killed by a stage collapsing on her while she was attending a concert. The 42-year-old woman was treated to front row seats for the event as a birthday gift from her life partner, a 49-year-old woman.

A brutal wind came up suddenly and the stage collapsed on the women, severing the 49-year-old’s toe, causing severe bruising, a broken clavicle and many deep wounds needing stitches, and killed the other woman. The family, which included the 17-year-old daughter of the dead woman, chose to file a wrongful death lawsuit on the basis that they felt this tragedy could have been prevented. Evidence suggests that the stage was flimsy from the start when it was being erected and that those putting it up should never have been allowed to finish setting it up. In other words, it was an accident waiting to happen.

Screams tore through the grounds when the wind hit, and the stage lifted off its foundation like it was made of matchsticks. It may as well have been made of matchsticks the way it crumpled and burst apart. Those sitting in the front rows had no place to go and nowhere to hide for protection. They just had to hope they made it out ok.

The weak and shoddy stage was just the tip of the iceberg in the chain of events that led to the 42-year-old’s death. Just prior to the devastating collapse, the national weather service for the area had issued warnings of impending severe weather – severe enough that the concert ought to have been rescheduled. The facts were clear and indicated that mixing an outdoor concert with ugly weather was asking for trouble. Attending emergency medical personnel could not understand the venue continuing the event when they had knowledge of the approaching storm.

Is this a case of negligence? Quite likely, as this kind of accident was not unforeseeable, nor was it an unpredictable, off the wall, strange thing that just happened. Based on the poor construction of the stage in the face of a catastrophic storm with the potential to kill, someone will be held responsible.

Have you been in a similar situation and do not know where to turn? Make your first call to an experienced Austin injury lawyer and find out what your rights are, how the evidence is preserved, what damages may be claimed and how a trial may proceed.

Brooks Schuelke is an Austin personal injury attorney with Perlmutter & Schuelke PLLC. Contact an Austin injury lawyer at Civtrial.com or (512) 476-4944.

New Trucking Accident Danger?

Since I have represented a number of people in trucking accidents, I’ve written here about a number of different dangers of trucking accidents.

But this trucking accident danger  is new for me.

Trucker Louis Holst and his wife had picked up a load that included 460 bee hives.  When his load became unstable, the truck toppled over, and approximately 25 million bees were on the loose. 

I don’t want to make light of it because Mr. Holst and his wife were both injured, but the case is a good example of two trucking problems.  First, one of the more popular causes of wrecks is an overturned trailer.  Those are typically caused by improper driving moves or improper securing of the load in the trailer. 

Second, there are immense dangers acused by dangerous loads.  While the bee swarm isn’t your typical type of dangerous load, it is a good reminder that hazardous cargo can pose a danger to truck drivers and to other motorists.

Concussions, Head Injuries, Football Season & Cheerleading — they all go together

This may sound hokey, but I’m a believer in “signs.”  If we pay attention to things, someone upstairs might be trying to tell us something.

Today, the “signs” are saying I need to write  something about the increasing problems of head injuries and concussions that we’re seeing not only in football, but also in cheerleading.  Why do I say that?  One of the articles that caught my eye in this morning’s Austin American Statesman was a story about the increasing number of concussion and head-injury related lawsuits by former NFL players suing the NFL and helmet manufacturers, primarily Riddel. 

And then, one of the first telephone calls I received this morning was from a safety advocate in Arkansas who called me asking about head injury issues in football and cheerleading.

At this point, I’ve written fairly extensively about the dangers faced by football players and that one way to help minimize that danger is making sure your kids have a proper helmet.  You can read some of those pieces below:

However, I haven’t written as much about the dangers of cheerleading.  In fact, cheerleading is one of the leading causes of injuries to young girls.  I sent the safety advocate links to a few resources about the problem.  The articles included:

I hope this information is useful to someone and helps protect a kid or two.

Texas Uninsured/Underinsured Motorist Coverage: If I Settled With The Other Driver, How Do I Calculate What My Uninsured/Underinsured Motorist Insurance Company Must Pay Me?

Some states have complicated rules to calculate what an uninsured/underinsured (“UM/UIM”) carrier must pay.  Texas isn’t one of them. 

 In Texas,  the insurance company simply gets a credit for the limits of the other driver’s insurance.  If your claim is worth $50,000 and the other driver has $30,000 in insurance, then your company owes you $20,000.

Texas Uninsured/Underinsured Motorist Claims: The Insurance Company Says It Gets A Credit For Its Other Payments. What Is It Talking About?

If you make a personal injury protection (“PIP”) claim or a medical payments (“MedPay”) claim, the insurance company is entitled to a credit for that amount.  For example, if your UM/UIM claim is worth $20,000, but your insurance company has already paid you $5,000 for PIP, then your insurance company will only owe you $15,000.

The exception to this is when your claims exceed the value of your policy limits.  For example, if your UM/UIM claim is worth $40,000, but you only have $30,000 of UM/UIM insurance, the company must say the full $30,000 even if it had already paid you some amount for PIP or MedPay.

Texas Uninsured/Underinsured Motorist Claims: My Uninsured/Underinsured Motorist Carrier Asked For An Examination Under Oath. What’s That?

Uninsured/underinsured insurance policies contain provisions that allow your company to insist on a process called an examination under oath.  In this process, you will attend a meeting with a lawyer for the insurance company and a court reporter.

 The reporter will administer an oath, much like you see on tv when people are sworn into testify in court.  The attorney will then ask you questions, and the reporter will take down all of the questions and all of your answers.  Because you are sworn under oath, your testimony is subject to the same penalties of perjury as if you were testifying live in court.

 Insurance company lawyers have a number of tricks designed to trip you up during an examination under oath.  As a result, it’s really important to properly prepare for an examination under oath.  Your attorney should spend a fair amount of time helping you prepare for the examination under oath.

Texas Uninsured/Underinsured Motorist Claims: How Do I Make An Uninsured/Underinsured Motorist Claim?

Initiating your uninsured/underinsured motorist claim is not difficult.  First, you will need to set up the claim.  The easiest way to do this is to call the claims number your insurance company provides.  This should be on your insurance card or you can find it on the Internet.

 The insurance company will then begin investigating your claim.  They will send you release forms in an effort to get information .  These will likely include a release that will allow them to get your medical records and your payroll records. 

 You must be careful in filling out these forms.  Most of the insurance company forms allow insurance companies to obtain more information than they need and than they should be allowed to obtain.  Properly navigating this process is one of the more important reasons to hire an attorney in your claim.

After you complete treatment and the insurance company obtains all of your records, then you will begin negotiating your claim.  Remember, while this is your own insurance company, they are still your adversaries in this process.  Do not trust what they tell you, and do not think you can rely on the, for advice on how to proceed or go forward in your claim.

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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