When car accidents cause injuries, victims must understand their options for financial recovery. Contact a Dallas car accident lawyer at Grossman Law 24/7 to learn what your case is worth: 855-326-0000.
Car accident victims are allowed to seek compensation from the person responsible for their car accident; everyone knows that.
However, most people have a significant misunderstanding of the most basic principles underlying this concept.
Or to put it another way, everything that you've ever heard non-attorneys say about car accidents and related lawsuits is probably quite inaccurate. In this article, our attorneys will explain the broad strokes of the relevant laws, and we'll also link you to other articles which delve into the specifics.
Insurance Carriers Want the Car Accident Claims Process to be Confusing
The main reason for this widespread confusion is the advent of the modern insurance claims process. Most everyone believes that an insurance claim filed against the other driver's insurance carrier is:
- a requirement that must be fulfilled, and
- that it is a process meant to favor or benefit the injured party.
Essentially everyone bases their understanding of car accident law on those premises, but it should work the other way around. Car accident victims should first understand the law, and then that understanding should guide the way that the insurance claim is executed.
The main reason that this misunderstanding is so prevalent is because that's exactly how the insurance industry wants you to think it works. They put forth great effort to create the illusion that when you're in a car accident, you need only file a claim and everything is taken care of, post haste.
The reality is that there is nothing in the law to support this. In fact, the law puts the ball in your court, so you (or your attorney) must know what steps to take if you want to be fairly compensated.
Eight Things You Must Understand About Car Accident Cases
There are eight concepts at work in a car accident claim that must be understood:
1. There's No Such Thing as "Car Accident Law"
There is no subsection of the law called "car accident law." Car accident cases are personal injury cases, so they are based on a combination of:
- non-codified (codes are written laws drafted by a legislature) concepts inherent in common law,
- codified injury laws drafted by state legislatures (in Texas, our injury laws are codified in the Civil Practices and Remedies Code),
- and statutes based in completely different areas of the law, such as insurance law, property law, etc. If you don't understand all of the relevant, overlapping laws, then you'll never have a complete understanding of how to handle a car accident case. (read more here about this combination of laws that apply in car accidents)
2. Who's Who in a Car Accident Claim
You, the injured party, are a called a plaintiff. The at-fault party is called a defendant.
3. You Can Skip The Insurance Claim Altogether
You are not required to file a claim against the defendant's insurance carrier. The insurance claims process may be, at best, a convenience, or, at worst, a potentially deceptive ruse to lure you away from exercising your rights.
But what it's definitely not is a requirement. You can bypass the process of filing a claim and simply sue the defendant if you so choose.
4. There are Several Different Types of Insurance Claims (and you should understand the difference)
Claims made against certain types of insurance policies (such as life insurance policies or workers' compensation policies) are eligibility-based claims. That is to say, you must only prove that you are eligible to make a claim and the insurance carrier must compensate you since you meet the eligibility criteria.
On the contrary, claims made against auto insurance policies are liability-based claims. You can only get money from the policy when you convince the insurance carrier that their insured driver was negligent and would, therefore, be found liable for your injuries if the case went to court. With a liability-based claim, the insurance carrier is allowed to fight back, but that's not the whole story.
5. Insurance Carriers Are Actually Required to Fight You
Insurance carriers owe their insured clients a legal obligation to provide a defense. If you sue a driver, their insurance carrier has to provide them with an attorney. Likewise, if you attempt to settle out of court, the insurance adjuster is required to protect their insured from your claim. Their job is to work against you.
6. Insurance Carriers Only Pay You When They're Afraid A Jury Will Make Them Pay You Even More
Your case has zero inherent value. Car accident victims often make the mistake of assuming that the defendants "owe" them compensation. That is not accurate.
What the law states is that car accident victims have the right to take the defendant to court, make their arguments against the defendant, and if the jury believes that the defendant acted negligently, then the defendant owes the plaintiff a sum of money.
100% of the value of your case is based on how a judge and jury would rule in the case. Yet it is expensive and time consuming to take every case to trial, so, in most cases, filing an insurance claim is the better option.
However, in order for the insurance claim to be successful (read: in order for the insurance carrier to offer you a fair amount), you absolutely must treat the insurance claim as if the case will indeed go to trial. In other words, insurance claims are not designed to work in your favor, but if you understand what makes them tick, then you can use the threat of a court case to gain the upper hand in the claims process.
7. Treating Your Insurance Claim Like a Trial Case Makes It Valuable. Treating It Like an Insurance Claim Makes it Worthless
If you were taking your case to trial, you would document the injuries and losses sustained, articulate your accusations against the defendant, and preserve and present evidence, all in accordance with the Rules of Civil Procedure (court and trial rules) and the Rules of Evidence. Likewise, if you treat the insurance claim in the exact same way, you are essentially telling the insurance carrier, "This is precisely how I would present the case to a jury, so you'd better settle with me or I'll file suit against your insured.
As you can see, I'm already prepared." This gives the insurance carrier a sneak preview of what they'll face in trial so they will be able to comprehend how a jury would punish their insured. Reread #5 above. Your case has no value other than the value a jury says it has, so if you don't treat your insurance claim like a trial, then you are announcing to the insurance carrier, "I don't know what I'm doing, so don't be afraid of what I can convince a jury to do."
If the insurance carrier isn't afraid of what you can do it court, they won't offer you very much. Good cases are often ruined by those with no legal experience doing a poor job of explaining why exactly their case is good. What makes a lawyer good at his job is knowing how to tell his client's story in a way that is both compelling and in accordance with the stringent guidelines present in a court case.
8. Court Rules and Decorum Matter
Cases are lost every single day by people who don't understand the rules of court. When to file, how to answer discovery, what you can and can't say are all things that you (or your attorney) should know. Once you accidentally illustrate to an insurance adjuster that you don't understand these things, they are not afraid of you anymore.
Further, once the statute of limitations has expired, you have no case at all. In #5, we mentioned that your car accident claim has no value other than what a jury says it's worth. So if you miss the statute of limitations deadline, you can no longer take your case to trial to find out what a jury says it's worth, ergo, your claim has no value.
About once a week, our firm is contacted by an accident victim who had a good case, but they let the statute of limitations run or they tried to handle a case on their own and their case was thrown out because they violate some court procedure that they didn't know existed in the first place. When that happens, you're completely out of luck.
Further Reading - Now that you know the basics, here are some more informative articles that will help you delve into the specifics. For a list of frequently asked questions, read our FAQ page.
The Factors a Car Accident Lawyer Will Assess to Determine Whether You Have a Case
Unfortunately, a car accident lawyer can’t take every case. But, sometimes, the reason an attorney might turn down your case is that it might ultimately be in your best interest not to accept it.
A car accident lawyer will take many factors into account before deciding whether or not to take your case. Some of the main factors a lawyer will consider in making the decision include the following:
- Existence and extent of any injuries;
- What legal “damages” exist;
- How much time has passed since the accident;
- Who was at fault;
- Whether your potential recovery is worth the cost of hiring an attorney; and
- Whether you have you already entered into a settlement.
Let’s dive into these factors in more detail below.
Did Your Car Accident Cause Physical Injuries?
Whether or not you sustained any physical injuries is an important factor. An attorney will often consider this before they decide whether or not they can accept your case. Although a car accident of any caliber can be a traumatic experience for all parties involved, this does not necessarily mean that you will always need an attorney.
If you did not sustain any physical injuries, or your injuries are very minor, you may not need an attorney. If the only damage that exists is damage to your vehicle, your car insurance will likely be able to help you take care of it.
Sometimes, however, you do sustain serious injuries that require medical treatment. And sometimes, your extensive physical injuries might even cause you to suffer additional emotional injuries. In these cases, you may need an attorney to help you protect your interests.
What Damages Did the Accident Cause?
Another extremely important factor to consider is damages. Legal “damages” are the costs associated with your car accident that you might be entitled to receive to help you recover.
Damages that could exist in a car accident case might include economic damages, non-economic damages, or even both. Economic damages are those that generally have a definite value or can be easily determined.
On the other hand, non-economic damages are less easy to determine, but they are damages a victim can recover, nonetheless.
A knowledgable attorney will take both of these into account when assessing your claim. Below are some examples of damages that an experienced car accident attorney will consider:
- Medical expenses;
- Property damage to your vehicle; and
- Lost wages or lost earning capacity due to injury.
- Pain and suffering,
- Stress and anxiety, and
- Emotional distress.
If there are no damages that you can recover, then it might not be beneficial for a car accident attorney to take your case. However, if any of the above damages exist, an attorney may be more likely to accept your case.
When Did Your Car Accident Occur?
When you first consult with a car accident attorney, one of the first questions they will probably ask is when the accident occurred. This is because of something called a “statute of limitations.” A statute of limitations is a statute that puts a time limit on bringing a certain type of legal claim.
In Texas, the statute of limitations for bringing a car accident claim is two years. This means that from the time you get in a car accident, you have two years to bring a lawsuit. For this reason, time is of the essence in a Texas car accident case.
When the statute of limitations has expired, you can no longer bring a claim in court. Accordingly, if it has been more than two years since you were involved in a car accident, an attorney may have to decline to take your case. Promptly consulting with an attorney can have a significant impact on whether they will be able to accept your case.
Who is at Fault (fully or partially) for Your Car Accident?
Having an attorney can be a great asset in a car accident case. However, an attorney can only do so much.
If it is clear that you caused the accident, an attorney may not be able to take your case to pursue a claim against another party. But, if it is clear that the other party was at fault, an attorney may be able to help you prove your claim.
Even where fault might be unclear, an attorney will take all of the relevant facts and evidence into consideration to see if they can help prove that you were not at fault. If they can, they might be more willing and able to take your car accident case.
What is the Potential Cost to You of Hiring a Car Accident Lawyer?
Although you should always seek an initial consultation in the aftermath of a car accident, sometimes, it might not be financially worth the cost to hire an attorney. An attorney will need to assess the potential time and expense it might cost to take your case and then compare it to what you might ultimately be able to recover.
If it will cost you more in legal fees to pay for an attorney’s services than what you might receive in the long-run in damages or in a settlement, this is an important factor to weigh. If this is the case, it might actually be in your best interest for a car accident attorney to turn down your case.
Did You Already Agree to a Settlement?
Depending on where you are in the process of dealing with a car accident, you may have already entered into settlement negotiations with another party to the accident or with an insurance company. This is very important information to a car accident attorney in determining whether or not to accept your case.
If you have already reached a settlement agreement, an attorney may not be able to help you. Most settlement agreements include a clause stating that the victim cannot pursue a legal claim after the settlement. However, if you are still in settlement negotiations, or you have not yet received an offer at all, an attorney will be more likely to accept your case.
Is it Financially “Worth It” for You to Hire a Dallas Car Accident Lawyer?
Is hiring a Texas car accident lawyer worth it for me financially? This is an important question that many people face. An experienced attorney will take many factors into account before deciding whether or not to accept your case. However, it is also important for car accident victims to understand these factors as well.
In general, the more serious the accident, the more likely it is that a car accident victim will require legal representation. If your injuries and damages are extensive, you might not be able to handle a legal case on your own. An attorney can help make sure your interests are represented so that you are compensated and made whole. With that being said, it is always worth at least getting an initial consultation after an accident.
In Order to Win a Car Accident Case in Dallas Texas...
You must prove the defendant driver's negligence.
Car accident cases are predicated upon proving the defendant's liability. That liability is established by showing the driver's conduct constitutes either some type of ordinary negligence, negligence per se, or gross negligence.
Here are some articles that explain the various negligence allegations that are recognized in Texas courts for use against the defendant driver:
- How negligence works in a car accident case
- Here are some common, "off-the-shelf" negligence accusations:
Here is an article which explains the court-recognized types of negligence per se allowed in car accident cases:
- Texas-court-recognized negligence per se allegations:
- Running a stop sign
- Running a stop light
- Blocking a roadway
- Driving on the left side of the road
- Negligently loaning vehicle to an unlicensed driver
- Street racing
- Driving under the influence
OR prove some other defendant's negligence. Some car accident cases are not entirely (or are not at all) the fault of the driver of the other car. Sometimes a third party other than the driver is responsible.
Here are some articles that explain how cases against third parties are viewed under the law:
- Claims against third-party defendants
- Common types of third-party claims:
The way you prove a defendant's liability is by offering evidence that shows their negligence. This is another area of the law where "conventional wisdom" is totally wrong. Most people think that all you have to do is get your hands on a police report that says who is at fault and that will be your golden ticket. This is wrong for a variety of reasons.
First, police officers are not kings. Their proclamations are opinions, not irrefutable facts (being that we live in America). As such, police reports are subject to being picked apart by the defendants.
Further, police reports are often erroneous. Lastly, as a matter of court procedure, police reports are not inherently admissible in court. Because of this fact, you have to take proactive steps to "prove up" the police report in order for it to even be allowed in court. If you fail to do this (or if you don't know how to do so) then the judge won't allow the police report to be shown to the jury.
A local Dallas car accident attorney who we've known for years flat-out lost a case because he forgot to "prove up" the police officer as a qualified expert prior to trial. So, on the day of trial, the police officer was not allowed by the court to offer any opinions about the car accident, which, of course, meant that he wasn't allowed to show the jury his police report.
Had the jury been allowed to see the police report, they would have known that the officer placed the defendant 100% at fault. But since they couldn't see this, they drew their own conclusions, and our attorney friend lost a case that should have been winnable.
You can read more about police reports (and the problem with putting too much stock in them) here:
- Anatomy of a police report
- Why you shouldn't wait for a police report before you talk to an attorney
- Yes, you can file a claim whether the police made a report or not
- How a Texas Blue Form CR2 crash report works
- How tickets and citations issued by the police factor into determining fault
- What to do if the police report wrongly says you're at fault
Here are some articles about investigating car accident cases:
- How car accident investigations should work
- Researching the defendant
- Evidence typically used in car accident cases
So if the police report is not all it's claimed to be, how then is fault determined and proven in a car accident case? The answer is that a thorough investigation must occur, which will produce various types of evidence.
That evidence combined with witness testimony, deposition testimony, and, yes, even the police report will be used to tell your side of the story. It takes a broad spectrum of evidence to prove a case.
You must prove the extent of your injuries and other losses. Your losses, in their many forms, are legally called "damages." While there are many types of damages that you can demand the defendant to compensate you for, you must understand that the burden is on you, the plaintiff, to prove your damages to the court.
If you can't prove that you sustained, say, lost wages, for example, then the jury will have no reason to make the defendant pay you for lost wages. In very rare circumstances, some states allow claims for what we call "scheduled damages." Scheduled damages are losses that have a predetermined value.
For example, a broken finger is worth $1,000, an amputated leg is worth $300,000, a burn injury is worth $50,000. Fortunately, our state's personal injury laws don't work that way. Rather than assign an arbitrary amount to injuries, Texas law, Arkansas law, and New York law (the states we regularly practice in) all allow the jury to listen to the particular facts of a case and then determine how much the injury is worth to the victim in question, which makes good sense.
Obviously, a broken finger is much more costly to a surgeon than to a school teacher. While they are both deserving of compensation for a broken finger caused by the negligence of another, surely a one-size-fits-all amount of compensation is not equally fair.
Again, though, the victim must explain to the jury what their injuries are worth or the jury will not know what to make the defendant pay.
Here are some articles that explain more about how your case is valued:
If necessary, you'll have to go the distance by filing suit and trying the case. All of the above holds true whether your car accident resulted in a life-changing, catastrophic injury or a temporary inconvenience. But once it becomes necessary to file suit, all of the above (proving negligence, proving the extent of your injuries, contemplating how a jury would view the evidence presented) suddenly become very formal.
It should certainly be said that litigating (litigation is the act of pursuing a case through court rather than out of court) a case adds a degree of risk to the equation. Suddenly you'll have to consider factors such as:
- Will a judge allow all of your evidence into court?
- Will the law change while your case is pending? (It has happened before.)
- Will the jurors that show up for jury duty that day be fair or will you get dealt a bad hand?
Here are some articles that explain the basics of how litigation works:
- Step 1: File suit
- Step 2: Litigating the case
- Step 3: Mediating the case
- Step 4: Taking the case to trial
These factors should not scare you away from litigation, but before the decision to litigate a case is made, you must at least understand and appreciate said factors. Further, you should also know how trying a case works.
Special Situations in Car Accident Cases
There are some car accident scenarios that should be treated as "special situations." This means that the normal game plan needs to be modified or that there is some added complexity in the case that needs to be understood and addressed.
- Additional care must be taken in car accidents involving:
- Car accidents resulting in serious injuries
- Car accidents in which a pedestrian was involved
- College students
- Car accident victims who were on the job at the time of the wreck
- Injuries sustained by passengers in car accidents
- Injuries to children in car accidents
- Car accidents with out-of-state vehicles
- Car accidents involving bicycles
- Soft tissue injuries and whiplash in car accidents
- Car accidents where either the victim or the defendant was driving a borrowed vehicle
How the Defendant in Your Car Accident Case Will Fight Back
The defendant who caused your car accident has the right to defend himself (that's obviously where the term "defendant" comes from). Just the same way that there are certain "off-the-shelf" theories of liability or types of negligence that you can assert against the defendant, he or she will be able to assert certain court-recognized defenses against you. It's important that you understand some of these defenses.
Here are some articles that explain how cases are defended in general:
- Common defense arguments used in car accident cases
- Failure to show proximate cause
- Act of God
- Pre-existing injuries
- Fault of a third party
- Unavoidable collision
- Comparative fault of the plaintiff
One of the worst "defenses" that an insurance carrier can use against your claim is not actually a defense in the classic sense. Rather, it is more of a tactic, but it has the same effect. This tactic is referred to as the "insurance inapplicability" argument.
It is an argument wherein the insurance carrier does not argue with you regarding who caused the car accident, they simply find some technical reason that the insurance policy doesn't apply. Read about this tactic here.
All About Insurance in Car Accident Injury Cases
Most of the money to compensate personal injury victims is collected from insurance policies owned by the defendant who caused the car accident. Therefore, insurance policies claims made against them, and the adjusters who administer the policies should be understood.
Here are some articles about insurance policies:
- Car insurance overview
- Insurance policy limits and how they affect your car accident case
- Uninsured and underinsured motorist claims
- How personal injury protection (PIP) coverage works
- Does car insurance "follow" the driver or the car?
- How to handle a claim that was unfairly denied
- What is a settlement and how does it work?
- What makes an insurance carrier want to settle?
- Does the "other guy's insurance" have to pay my medical bills?
- Property damage claims are not the same as injury claims.
One of the single biggest misconceptions that car accident victims have is that they assume that if the defendant's insurance carrier accepts liability for the damage done to the victim's car, that the defendant will then pay up for the victim's injuries. This is absolutely not true.
Simply put, property damage laws require them to pay fair market value for your damaged car, but since there is no fair market value for your injuries, they absolutely can and will try to take advantage of you on your injury claim no matter what their decision was on the property damage claim.
Much the same way that you will have an attorney advocating on your behalf, the defendant who caused your injuries will have someone fighting for him as well. If the case gets litigated, then the defendant will, of course, be represented by an attorney. However, in a car accident case, filing suit is usually a last resort rather than a starting point.
That means that until a lawsuit is filed, the defendant's attorney is not yet in the picture, and the defendant's liability insurance adjuster is your main opponent. Naturally, it's important that you understand the adjuster and the process and tactics they use.
Here are some articles about what the adjuster is really up to:
- Understanding the true role of the insurance adjuster
- Five things you should know about car accident insurance adjusters
- What you should and should not say to an insurance adjuster
- How recorded statements work. Should you have an attorney present?
Do not give your medical records to an insurance adjuster. That's a trick.
Some insurance companies are harder to deal with than others. Some will flat-out lie to you.
Here are some articles about insurance carriers we feel are more challenging to deal with than they should be:
Now that you have a good idea as to how it all works, here is an article that vividly describes how all of the above factors apply to several specific examples: How car accident cases work, a start to finish play-by-play.
Additional Information About Car Accidents Claims
Here are some additional articles that address car accident-related issues: