In the context of a personal injury claim, negotiation is the back-and-forth process of offer and counteroffer that (hopefully) leads to a settlement. In many cases, it works like a game of ping-pong (offer, counteroffer, counter-counteroffer, etc.). It is interspersed with evidence gathering designed to enhance your bargaining position and thereby lead to a better settlement offer from the other side.
You might need to take a detour through the courts to get the other party to take you seriously. But in all likelihood, you will end up settling your claim out of court.
Gathering Information About Your Personal Injury Case
The first stage in negotiation is for your lawyer to gather information about your case so that they can formulate an initial estimate of the value of your claim.
They will probably ask you some of the following questions during a free initial consultation:
- What was the date of your accident? This is important in calculating the statute of limitations deadline.
- Please describe your accident in detail.
- Did you notice any witnesses? Did you obtain contact details from any witnesses?
- Please describe your injuries.
- Please describe any medical treatment you received. The attorney might also request copies of your medical records.
- How much work did you miss because of your injuries?
- Do you have any pre-existing medical conditions that affected the same parts of your body as your injuries from this accident did?
There are many other questions that your lawyer might ask, depending on the circumstances of your case.
Documents Your Attorney Might Request
Following is a very abbreviated list of some of the documents your attorney might need:
- A copy of the police report
- Your medical records and bills
- Photos and videos of the scene of the accident
- Employment records
Your attorney might also interview witnesses and look for CCTV footage of the accident.
Determining the Value of Your Personal Injury Claim
You need to accurately calculate the value of your claim so that you will know whether to accept or reject a settlement offer. To accurately calculate the value of your case, you need to break it down into its components.
Your personal injury claim will probably consist of several damages, including:
- Medical expenses
- Lost earnings
- Out-of-pocket expenses
- Pain and suffering and other non-economic damages
This breakdown is crucial in determining the ultimate value of your claim. In rare cases, you might even seek punitive damages.
Putting Together and Sending the Demand Package
The demand package will include a letter describing the accident, listing your losses, and justifying your claim for damages. It may consist of a breakdown of the components of your damages. Finally, it will include a demand for settlement and a deadline for the insurance company’s response.
In addition to the cover letter, the demand package will also include relevant documents, such as your medical bills, the police report, accident photos, etc.
Some personal injury attorneys like to let the insurance company make the first offer, while others like to make the first offer themselves in the demand letter.
The Insurance Company’s Reservation of Rights Letter
The insurance company will send a “reservation of rights” letter. In this letter, they will state that they are investigating your claim and reserve the right to deny it if the facts do not support it. Don’t worry–this is completely routine–in fact, it’s almost a formality.
The Litigation Option
Following are three of the main reasons you might want to file a lawsuit even though you ultimately intend to settle your case:
- It gets the insurance company’s attention. Unless you withdraw the lawsuit, it will go to trial–and it’s unlikely that a busy insurance company would welcome a trial.
- It stops the statute of limitations clock from ticking.
- It gets you (and the insurance company) access to the pretrial discovery process.
Most personal injury claims never reach trial, even after the injury victim files a lawsuit. What a lawsuit might stimulate, however, is a better offer from the insurance company.
The Discovery Process
The pretrial discovery process is a court-enforced evidence-gathering procedure. It can only take place after you file a lawsuit. In the discovery process, you can demand evidence that is in the other party’s possession, and they can demand evidence that is in your possession. The court can sanction an uncooperative party.
One of the legal weapons in discovery is called “interrogatories.” Interrogatories allow either party to send written questions to the other party, which the other party must answer under oath.
Returning to the Negotiating Table
Hopefully, gathering evidence through the discovery process will enhance your bargaining position, giving you additional leverage at the negotiating table. You can always withdraw your lawsuit once you reach a private settlement.
The more favorable evidence you gather through the discovery process, the more likely it is that the insurance company will offer an acceptable settlement.
Drafting the Settlement Agreement
Once you reach an agreement, you can start drafting the formal settlement agreement.
A settlement agreement should include, among other terms:
- The names and signatures of the parties
- The amount of the settlement
- Terms of payment
- A statement that the plaintiff releases the defendant from any further claims concerning their injuries or the accident
Settlement agreements often contain other clauses as well. You might need significant time just to negotiate the exact terms. The settlement agreement, once signed, is a binding legal contract. You can use it to take legal action against the other party if they fail to comply with its terms.
A Chicago Personal Injury Attorney Can Help You Throughout the Negotiation Process
You might not be sure whether you have a valid claim. Even if you do, you might not know how much it’s worth. It’s important, however, that you go into negotiations with a ballpark estimate of how much your case is worth. Contact our Zayed Law Offices Personal Injury Attorneys at (312) 726-1616 to schedule a free initial consultation with a Chicago personal injury lawyer who will help you estimate the value of your claim.