Why Hire a Personal Injury Attorney?

Trucking Accident Attorney

There are several reasons you might want to hire an attorney for your injury claim in North Carolina. But here are the main two reasons you would want to have an attorney:

The secondary reason is for a better outcome. None of us can guarantee any sort of outcome or even a better outcome than you might obtain on your own. But think about it: If you don’t know how to approach this, what are the chances that you’re going to do a better job than a professional? It doesn’t make sense.

The primary reason is to take the work off of your shoulders. I sincerely doubt you were twiddling your thumbs before this accident just looking for stuff to do! You were busy already, and NOW you have to worry about getting better, going to treatment, maybe missing work. And on top of that you want to learn how to do my job in your free time? That’s just too much.

Could you do all of this on your own? Sure. But might you get a better result with an attorney? I sure think so. And do you really have time to figure out how to do my job? I doubt it.

Do yourself a favor. If you have an injury claim in NC, call an experienced personal injury attorney. Call me. 919-929-2992.

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Firing Your Personal Injury Attorney

Just so you know, I’m not generally in favor of you firing your attorney, especially if it’s me! But sometimes things just aren’t working out and like in any relationship, the healthy thing might be to part ways, so let’s talk about that situation.

There’s any number of reasons you might want to fire your personal injury attorney. But what you need to find out before you do anything drastic is whether or not your reasons are reasonable. In other words, is it maybe the case that your expectations are the problem, not the work the attorney is doing? Without some outside insight on your situation, it may be hard to say for sure either way.

If you’re unsatisfied with your personal injury attorney, it won’t hurt to call another attorney and talk to them about whether or not you’re being unreasonable or if your attorney just isn’t living up to your (legitimate) expectations. There can be a lot of nuance in personal injury law and every case is different, but normally an attorney in the same field and jurisdiction can tell pretty quickly if you’re attorney is the problem or if it’s your expectations not being aligned with reality.

If it turns out that your expectations are reasonable and your attorney just isn’t cutting it, there are still more concerns to consider. How close are you to your statute of limitations? If you’re close, it may be really hard to find another attorney willing to take your case on (this is what was called a “malpractice trap” when I was in law school, and we were all wisely warned against getting involved in really old cases). So while it might be generally OK to look to switch horses in the middle of the race, you better make sure there’s actually another horse to switch to before you jump off.

If you determine that firing your attorney is still the right thing to do, then your next question is going to be “what do I owe them?” I can’t speak to every attorney’s fee agreement, but generally we all have a contingency fee arrangement that means if we don’t get the case resolved for you, we don’t get paid a fee. However, we also still have what’s called a quantum meruit claim, which means that we could ask you to pay us some reasonable fee for the amount of work we have done, to date, on your case. Most of the time fired attorneys don’t seek to enforce that right (for several reasons that aren’t terribly important) BUT you should still consider it, and probably discuss it with the attorney, before you make your move.

So, you’ve gotten some good insight, you’ve determined it’s still a good time to fire your attorney, and you aren’t worried about what you might owe them. How do you fire your personal injury attorney? It’s pretty simple: just tell them they’re fired, in whatever language you choose to use. Just make it clear that they’re off your case and ask for a copy of your file. The Bar says you have to give them a “reasonable” amount of time to provide the file copy, but nowadays, I feel like “reasonable” isn’t very long at all. I could probably email your file to you in a few seconds if you wanted me to.

To summarize, it’s not always a good idea to fire your attorney. Maybe it’s your expectations that need adjusting, not your attorney that needs changing. But sometimes it’s not you, it’s them, and you need to be rid of them. Just make sure you’ve considered the facts of your case and how easy it will be to find a replacement before you do anything that can’t be undone. I’ve personally taken on a lot of second hand cases and made them work. But I’ve also declined more than I’ve taken on. Seek reliable advice from an experienced personal injury lawyer…like me. Call me at 919-929-2992.

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Who Should Tell You What Your Injury Claim is Worth?

Here’s a hint: It’s not your mother’s sister’s cousin’s father’s former roommate.

I get this ALL the time: I think my case should be worth $X! So and so says I should at least get $X!

Let’s say I go into a doctor’s office and it turns out I have diabetes.  But I tell the doc that my treatment should be 700mg of Tylenol BID.  The doc might humor me and ask, “Why do you think that?”  My response is, “Because that’s just what I think.”  The doc might continue this line of inquiry…”But on what basis do you think this is a safe and effective treatment for your particular condition?”  My response is, “Well, I just think that’s what I should do.  It’s not based on any experience, education, or training in the field of medicine.  It’s just what I think.”   That’s not really a good basis for making treatment recommendations, is it?  

It’s very normal to want your case to be worth a certain figure.  But pulling that figure arbitrarily out of the air, based on nothing but desire, isn’t the best way to make a business decision.  And that’s what this is:  Choosing to settle v. choosing to litigate is based on a cost/benefit analysis.  It’s a little on the growl-y side, but I tell clients all the time that while I take their opinion into consideration when considering outcome goals, their opinion is absolutely valueless when it comes to what a jury will do because you can’t be on your own jury.  Conversely, while a very small minority of my clients might throw it to the wind, my opinion is formulated on having been trained to do this job and having done this job for over 20 years now.  I try not to take it personally when clients tell me that’s nothing in comparison to what they want their case to be, or what their uncle who’s a corporate attorney in Minnesota thinks it should be.  

The moral of the story is if you really want to know what your case is worth, talk to an injury attorney with experience in the field, who knows the facts of your case in and out. Even then, their opinion isn’t set in stone, but it has far more likelihood of being accurate than some nonsense someone you know just made up.

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Litigation of your NC Injury Claim

Thankfully, most NC auto accident claims get settled without litigation. That’s a good thing for both parties. Litigation is expensive, time-consuming, and uncertain, so I would never say that it’s the best dispute resolution platform out there. Winston Churchill said of Democracy, “It’s the worst form of government, except for all of the other ones we’ve tried,” and this same sentiment might apply to trial by jury. Still, as much as we’d like to avoid it, sometimes you have to go through with it.

In making the decision to go to trial, it would help if you knew, at least in a nutshell, what the entire litigation process looked like. So here’s that nutshell for you:

Filing: First, as the Plaintiff we must file a Complaint. That’s a formal documentation of what you’re saying the bad guys did and you take it to the appropriate county clerk’s office, pay them some money, and boom, you’re a litigant. You then have to serve the Defendant (which costs money) in a prescribed way (which is often easier said than done) and after that the Defendant has 30 days (really 60) to file an Answer, which is a formal document that will state why the Defendant thinks the Plaintiff is full of $#%!.

Discovery: This is probably going to be the longest part of the litigation process. Discovery consists of two elements – written discovery and depositions. Written discovery is most easily described as asking tons of invasive and inappropriate questions on paper that the parties are then required to answer in 30 days (really 60) under oath. Depositions are question and answer sessions that are requested by the attorneys for the litigants, at which the deponent is asked questions under oath in the presence of a court reporter who is documenting every word. The discovery process is really about fact-finding so that each litigant knows what evidence supports or harms their respective claims. Mostly it’s the plaintiff and defendant who are deposed, but witnesses can be as well, and expert witness depositions are very important. Three things you should really take away about Discovery: First, it’s going to take a lot of time and effort on YOUR part, not just mine, so know that you’re essentially signing up for a part-time job. Second, it’s probably the most important part of the litigation process and can really make or break your claim. Third, it’s deceptively expensive. You will be paying the court reporter as well as for transcripts, which adds up quickly. More importantly, if you’re paying for an expert witness, here’s where you can really, really get in the hole. So be forewarned.

Mediation: Every case filed in Superior Court in NC must go to mediation unless excused by a Judge. A mediation is just a formal settlement conference refereed by a mediator, who does not make decisions in the case but just helps the parties to communicate. This costs money, too, but is often worth it, as most cases that are filed are settled at or before mediation. There will be considerable preparation work prior to the mediation, but the amount is really on a case by case basis.

Trial: This is the actual going to court, picking a jury, and going through the court room process. This can be time-consuming and immensely stressful. For the most part, the process here is too complicated to really right about, especially in that it may vary so much from case to case. But most of what you’ve seen on TV is both very right and very wrong, if that helps you any.

The process is expensive, imperfect, and uncertain. But maybe it’s your best chance at success, whatever that means, for your claim. Just talk to your attorney and ask as much as you can to know what you’re getting into before making such a big decision.

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Why “but this is my first ticket!” is not a defense

Traffic Attorney

“BUT THIS IS MY FIRST TICKET!” is something I hear ALL the time when I explain what the likely outcome of an Orange or Chatham County speeding ticket might be. People sadly work under the mistaken assumption that if you’ve never had a ticket before, your first one is on the house. That just ain’t true.

Think of it this way: A speeding ticket is, whether you like it or not, an accusation of a crime. A small crime, but a crime nonetheless. Which means it’s like larceny, or arson, or murder. Do you get one free murder? Nope. Doesn’t work like that.

I know, that’s not an apples to apples comparison, precisely, but the premise holds true: Just because this is your first ticket doesn’t mean you’re going to get out of it without some sort of consequences. Does having a clean driving record potentially help your outcome? For sure! The ADA negotiating the ticket will very likely take that into consideration. But it ain’t getting dismissed just because it’s your first one.

I just thought you all should know.

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Expectations are your Worst Enemy

Before you start thinking about what your North Carolina injury case is worth, consider what you’re basing your expectations on.

If you’re basing your expectations on what you WANT your case to be worth, that’s not a good foundation. Neither is what your Uncle Fred settled his case for in 1997. You might also be surprised to find out that the internet pretty much has no idea what it’s talking about. I could go on and on as to what NOT to base your claim value on…

But that begs the question: What SHOULD you base your claim value on? Well, if you hired a seasoned personal injury attorney with over 2 decades in this business (such as myself) then you should probably just trust what he has to say. There are TONS of factors to consider in valuing a case, including but not limited to: Venue, liability, causation concerns, potential legal defenses to liability, pre-existing conditions, objective v. subjective injuries, prior case settlements, prior verdicts, medical expenses, insurance coverage questions, liens, permanency of injury…and that’s just to name the main ones, not all of them!

If you’re not intimately familiar with the meaning and nuances of everything on that list (and then some), please do not be offended when I say that you are not the best source of an opinion as to the value of your case. Nor is your Uncle Fred.

Look. I get it. At the end of the day, resolving injury claims can solely be done via monetary reward, so whether we like it or not, it is about the money. So you’re certainly entitled to be curious as to what your case is worth. You can also have whatever opinion you want as to your own case value. But the point of this particular writing is this: Your expectations can really throw you for a loop in these situations, so the best advice I can give you as a personal injury is to throw your expectations out the window. They have no place here. You’ll never be on the jury hearing your case, so your opinion is not going to be relevant in the case evaluation. If you want to know what your case should be worth, ask an experienced North Carolina personal injury attorney and listen to their advice. And if you form an opinion without that advice, don’t be upset when your expectations are met because they probably simply aren’t realistic.

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Duty to Mitigate Your Damages

North Carolina accident victims don’t get a fair shake after accidents for a LOT of reason, most of which can be laid at the feet of GOP legislators, but that’s for another blog post. One of the many rules that accident victims aren’t aware of and that comes back to bite them is the Duty to Mitigate Your Damages.

The duty to mitigate essentially means that if you have a proverbial tourniquet to stop the proverbial bleeding, you have to staunch it and you can’t blame the guy who accidentally cut your finger when you bleed out. Here’s the most common example of how that rule might mess up your day:

Let’s say you’re in an auto accident, not your fault, and it totals your vehicle. The bad guy’s insurance pays the “fair market value” (whether that’s “fair” or not is, yet again, for another blog post…) but you can’t find a car to buy and use for 6 weeks. You need your car to work, so in addition to your injuries, etc., you’re losing income for 6 weeks, all of which can be traced back to the original act of negligence of the bad guy driver. Yet, the Duty to Mitigate would probably preclude you from being able to recover the vast majority of that lost income for the 6 weeks after they paid you for your property damage. The law would say that after they paid you FMV for your vehicle, they were square, as it were, with you with regards to your property damage and by extension your property damage-related lost income.

I hear the rationale for why that’s fair; it’s not really fair to expect the bad guys or their carrier to go and find you a car that you’ll be happy with. I get it. BUT, at the same time, you can’t ride the stupid check to work and back! The money is NOT a car, so it’s not the same thing!

Now, with the right argument you might be able to get a little bit of that lost income because, Duty to Mitigate or not, there is a reasonable argument to be made that even with that check, you can’t turn that into a car in a day or even three, so maybe a short percentage of that 6 week absence might be a reasonable argument, but not a guaranteed one.

Once again, all this stuff is complicated which is why you should get a personal injury lawyer that knows what they’re talking about. Get me! 919-929-2992.

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Hurt at Work? File a Form 18

If you’re hurt on the job and think you have a worker’s comp claim, do yourself a favor and file a Form 18 now. What’s that?

It’s this: https://www.ic.nc.gov/forms/form18.pdf

That form, as long as it’s filed within 30 days of your injury, meets all of the notice requirements of the NC Worker’s Comp Act. Your employer/their insurance company will find any reason to deny your benefits, so don’t get them this one. File that Form 18 ASAP after your injury.

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Injury Claim Pitfalls

I could write a book on the various and sundry ways you can make your North Carolina personal injury claim worse. There are a lot. But these little nuggets are the most common that you should look out for…

Southern Hospitality/Taking the Blame

One of the things I like about the South is that, in general, we do tend to be pretty polite in public. How many times have you been holding a door for someone and then have a polite argument about how the other person should go first? That’s kinda nice. But this instinct can be killer for your claim. After an auto accident you will likely be interviewed by law enforcement and/or an insurance claims agent. If your Southern instinct to demur and not place the blame on someone else kicks in, that could lead to claims disaster. Always tell the truth, but never even come close to accepting blame, or even acknowledging partial fault, if that’s not definitely the truth! EVERYTHING you say can and will be used against you in this claim, so if it was the other guy’s fault, you say that and stick to it!

Health Insurance/Auto Insurance/What? What!?

Insurance is dumb. I’ll be the first to admit it. But in our current system it’s a necessity. But necessary or not, it can be super confusing. Do you use your health insurance if someone has liability insurance that should be paying for your medical expenses? What is this “Med Pay” stuff in my own auto policy? All of this can be confusing, but here’s the bottom line: North Carolina is NOT a PIP (personal injury protection) state, so you DO use your Health Insurance for auto-accident related injuries! Let me say that again louder for the people in the back. YOU DO USE YOUR HEALTH INSURANCE! Here’s the best way to look at it: Your health insurance is on the hook in NC, no matter who else might be on the hook in theory. Yes, your health plan might have a right to get paid back IF you get payment for those bills from someone else, but that’s way down the road. When you incur the health care bills, your health insurance is on the hook for them. Period. How does your auto “Med Pay” play into that? Well, that’s no fault coverage that you can access after any auto accident, but be careful when/how you access it, because lien-holders might have a right to it. That’s another blog post altogether, though, so call me for details on that one.

Tough Guy/Gal Syndrome

“Yeah, I’m a little banged up, but I think I’ll wait a few weeks to see if I really need treatment,” is a great attitude to absolutely shred your injury claim. Here’s the skinny: Insurance companies LOVE to take advantage of good intentions. You might be trying to be tough or trying not to “make a big deal” out of something, but if you’re hurt, you should seek treatment. If you don’t seek treatment, the insurance company is going to argue to your future jury that you must not have been hurt. So that week or two or three or whatever that you’re waiting, albeit for the kindest of purposes, gets used against you as “proof” that you weren’t really hurt in the first place. The bottom line is if you’re hurt after an accident, get checked out and go ahead and start whatever kind of treatment you need or you’ll regret it if you don’t.

Sadly, there are tons of other ways you people will act that will compromise your claim, but I can’t go into all of them. I wish it wasn’t so fraught, but insurance companies have come up with all kinds of tactics to avoid paying reasonable value for claims, so you have to get good advice fast to avoid falling prey to them. So if you’re hurt in an accident, call an attorney asap. Call me. 919-929-2992.

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Mediation? What the heck is that?

If you have a worker’s compensation or auto accident injury claim in North Carolina, there’s a fairly high chance that you may be involved in a mediation at some point. So what the heck is a mediation anyway?

A mediation is a moderately formal meeting of two or more adverse parties to convene, under the guidance of a mediator, in an attempt to resolve the conflict between the parties. In some instances a mediation is mandatory in North Carolina, but not always. I tend to like them as a dispute resolution alternative and here are a few reasons why:

  • Your attorney does all the talking, really. You don’t have to be examined or cross examined or get all worked up about that. For the most part your attorney will do all the talking for you. Don’t get me wrong: You’ll be involved and your decision-making is critical but you won’t be under any pressure to “perform,” which is great.
  • The mediator is NOT a judge. The mediator, who is normally agreed to and assigned by the parties, is a non-partial, independent third party who gets paid no matter what so s/he doesn’t have a horse in the race. Generally, they’re just nice old lawyers or judges who like helping people figure stuff out. Often times you can really lean on their experience to help you gain a better understanding of the issues. Whereas a judge often tells you the outcome, a mediator only helps you to come to an outcome that you agree to. That’s way better in my opinion.
  • You’re not with the adverse party very long. Generally speaking, there is the opening where the mediator briefly explains the process, the plaintiff’s attorney recounts what the issues are, the defense attorney responds, and then you separate into different rooms. This is called “caucusing” which just means you’re separate and free to talk to your attorney and the mediator about what’s going on. When you’re in a caucus, you can confide in the mediator if you feel it’s necessary/appropriate, and tell them not to share that info, and they won’t. Plus, you get to confer with your attorney while the mediator is away and that allows you plenty of real-time reaction to what you’re learning.
  • You get to hear the other side. Everyone knows the strengths of their claims, but depending on your attorney’s style of practice, you may not know a great deal about the weaknesses of your claim, or how another party might perceive them. This is a great opportunity to hear the adverse parties’ viewpoints on your situation AND you get to have that filtered by an experienced, independent, NEUTRAL third party – the mediator – and that is worth its weight in gold. Maybe your case is great, but maybe it ain’t. This is where you often find out.
  • You have the power to decide. In a trial, the “finder of fact” gets to decide the outcome of your case. That’s normally a judge or a jury. But that takes the power of your outcome totally out of your hands. In a mediation, you get to agree or not. I have found throughout the years that clients really appreciate having the power to agree to a resolution of a claim to be very, well, empowering, for lack of a better word.

And that’s really not all of the benefits, that’s just all I can explain in a blog post. If you’re in a position to potentially resolve your case in a mediation, it’s a good opportunity to at minimum learn about your case and best case scenario get the best, most reasonable outcome possible.

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Contact Jeffrey

Jeffrey Allen Howard, Attorney at Law, PLLC
1829 E. Franklin St. - Bldg 600
Chapel Hill, NC 27514

(P) 919-929-2992
(F) 919-636-4779

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