A red flag is a fact that reduces the value of your lawsuit. Here are the most common ones:
(1)There was no or minimal property damage to either car.
An insurance lawyer might say: “If the cars weren’t travelling fast enough to bend metal, why do you need $15,000 in medical treatment and two months off work?” Juries are reluctant to make a big award without a big wreck.
But a small crash can cause big problems. I have seen insurers pay big money when there was a significant problem and no explanation besides the accident. On the other hand, I’ve seen insurance companies fight these cases and win.
(2)You’ve been hurt before in the same part of your body.
The insurance lawyer will argue that your problems today are just a return of the problems you had before the accident. The best answer is your medical records and, if necessary, the testimony of your doctor.
If there was a significant time gap between the last treatment for the prior injury and the accident, most companies will give you the benefit of the doubt
(3)The bills are really high, and there has been no surgery or other dramatic treatment.
I have seen attorneys present bills for years of treatment for their clients, ranging from $25,000 to $40,000.00. Historically, a lot of these bills tend to be generated by Chiropractors.
The biggest problem is that many jurors are suspicious of chiropractors. But they will question any very large bill where surgery or other dramatic treatment is not involved.
The better your doctor is, the less likely it is that the jury will accept the “overbilling” argument. And if your insurer paid the bills, you can argue that your insurance company would not have paid for unnecessary treatment.
(4)You’re asking for a lot of lost wages.
Juries award wages lost because of serious injuries. If they question the injury, though, they will be reluctant to make the award you want.
Your ability to negotiate with the insurance company will depend a lot on what your doctor says, and your personal credibility.
Your doctor’s testimony is obviously important on this issue. But your work records – your reviews and your attendance – may come into play as well.
5) Your injuries are “subjective” rather than “objective”.
An objective injury can be verified by independent observation; for instance, an xray showing a fracture, a cut on your arm, a positive emg test, or a fractured tooth.
The only evidence of a subjective injury is your statement that you are having pain. Back strains and headaches, without supporting tests, are often considered subjective.
Jurors are less likely to award large sums for subjective injuries. It’s often hard to overcome this tendency; in addition to good medical testimony, timelines can be a good way to prove the reality of your pain.
6) Treatment Gaps
Most jurors will believe medical treatment within the first week after an accident, as well as treatment administered on a regular basis afterward.
But if you wait until a month after the accident before going to the hospital, they’re going to look pretty hard at the Emergency room visit and any treatment afterward. And if you stop physical therapy, you will have trouble getting the jury to compensate you when you resume treatment three months later.
Fortunately, this is something you can control. If you hurt, go to the doctor.
None of these problems have to be fatal to your lawsuit. But your lawyer has to realize it if any of them are present, and he must have a plan for dealing with them.
I have been a lawyer over 30 years. My job is making lemonade out of lemons. If you have questions about your lawsuit, talk with an experienced Cincinnati Injury Lawyer about the case. Call me, William Strubbe, at 513-621-4775.
Because all situations are different, and because there may be other facts pertaining to your case that I don’t know about, you should not rely on this answer for legal advice. I am not your attorney, and no lawyer client relationship has been formed.