Following a car accident you may receive dozens of legal advertisements in the mail. These advertisements are from personal injury lawyers attempting to get your business. Many times these lawyers found you by hiring third parties to purchase and review car accident reports. The police report (technically referred to as the NC DMV form 341) contains numerous data points about your accident and injury. Depending on those data points and how much the lawyer wants to spend you may receive an advertisement.
Many times people will call a personal injury law firm only to be rejected when they have, to their mind, a perfectly valid case. In some situations the lawyer will explain to you why they will not take your case. The majority of times, however, the lawyers will just give some general language about declining the case and then get off the phone.
These are the top 5 reasons why a personal injury lawyer declines your car accident case and why you didn’t receive an advertisement the mail.
- Property Damage
Property damage is one of the most important factors lawyers look at when deciding to take a personal injury case. Unless there is video evidence of the accident, neither the insurance company nor a jury will be able to view the severity of the impact. As such, the amount of property damage becomes a proxy for the severity. The lower the property damage the lower the assumed severity of the impact.
Many lawyers determine whether to send an advertisement letter based upon the amount of property damage listed on the police report. Many lawyers also decide whether or not to accept a case based on the amount of property damage. However, property damage doesn’t tell the entire story regarding the accident. A competent lawyer must also look at how the accident happened: the angles of the vehicles, the speed of the vehicles, the type of vehicles, the age of the vehicles, etc. Finally, the amount of property damage estimated by the officer on the side of the road is not admissible in court. The bottom line: if a personal injury lawyer is not interested in your case, a big reason may be that the estimated property damage is just too low.
- Prior Medical Condition
One of the most important legal questions in every car accident case is whether the accident was the cause of the injuries complained of. In most situations this is clear because the injured party did not have any prior similar injuries. However, some people may be actively treating for injuries, similar to the ones sustained in the accident. For example an injured person may be regularly seeing a chiropractor for neck pain during the months before the accident took place. Many times lawyers will not want to take that type of case since they worry about medical causation. In other words, “Did the accident cause the injury or was the injury preexisting?” However, an aggravation of a preexisting condition is compensable. The injured party must make clear to their medical providers how their injury is different following the accident. The difference could be severity, frequency, type and/or location.
- Contributory Negligence
North Carolina is one of the few states that still have pure contributory negligence. Simply put, contributory negligence is when the negligence of the Plaintiff combines with or joins with the negligence of the Defendant to produce the accident or injury. In the majority of states if the Plaintiff contributed to cause the accident or injury, the amount they are entitled to receive is reduced by their own negligence. In North Carolina if the Plaintiff is contributory negligent he is not entitled to receive any compensation.
North Carolina police reports (NC DMV 349) for car accidents contain a section which allows the investigating officer to give his opinion as to fault. Many times the officer will incorrectly label the Plaintiff as contributory in causing the accident. This alone will preclude many lawyers from taking your case. Further, officers are trained in criminal law, not civil. They are not trained in the minutia of determining civil contributing negligence.
Many personal injury attorneys believe that if there is some evidence of contributory negligence they will not take the case. However, there are multiple ways to get around contributory negligence.
- Last Clear Chance – Because of the draconian nature of contributory negligence the doctrine of Last Clear Chance appeared in North Carolina. Last Clear Chance looks back at the defendant and asks the jury to decide that even if the Plaintiff was negligent in causing the accident, if the defendant had the “Last Clear Chance” to avoid the accident, the defendant will still be held liable.
- Willful and Wanton or Gross Negligence – If both of the parties are negligent the Plaintiff will be unable to collect. However, if the level of the Defendant’s negligence is at a higher level that the Plaintiff’s it will trump the Plaintiff’s negligence and the Plaintiff can collect. An example of this is when the Plaintiff has some technical negligence which can be argued by the defense as contributory. However, the Defendant was under the influence of an impairing substance at the time of the wreck. In this case the Plaintiff would be able to recover, regardless of his level of negligence. Of course, if the Plaintiff is also grossly negligence he would be unable to collect.
- Plaintiff’s Negligence is not a Contributing Factor – this is the most technically difficult argument but it is many times the only argument the Plaintiff can make. While difficult to understand, the argument holds for the fact that while the Plaintiff is negligent, said negligence did not combine with the negligence of the defendant to cause the accident. A very common example of this is when there is evidence of the Plaintiff speeding. If the accident would have happened regardless of the Plaintiff’s speed then the Plaintiff’s speed is not a contributing factor.
Unfortunately, many personal injury lawyers will not take a case if they feel the Plaintiff is contributorily negligent. Many lawyers either don’t know about the exceptions to contributory negligence or the application of those exceptions.
- Insurance Company
There are two different types of insurance carriers. The carriers that attempt to resolve claims at a reasonable amount to protect the assets of their insureds, and the carriers that attempt to undervalue the claim value regardless of the risk to their insureds.
If you practice in personal injury law you learn very quickly which carriers refuse to pay value for a claim and those that do. In agreeing to take a case many lawyers look at the insurance carrier on the other side. Some carriers are notorious for not paying and forcing the lawyer/client to file a lawsuit. Some lawyers refuse to take cases based on the insurance carrier.
Many times clients think their case is going to change the world. Unfortunately, lawyers have to decide whether to take a case using a number of factors. One of the factors is value. For example, many times people are involved in catastrophic accidents but suffer either minimal or no injuries. Especially if liability (fault) is contested, many lawyers would not take the case because the value would not justify the time and expenses.
The opposite is also true. Many times the client is catastrophically injured but there is not enough insurance proceeds to compensate the client. This occurs more often than you might think. This is why we encourage our clients to get as much Underinsured Motorist Coverage as possible.
Rosensteel Fleishman, PLLC does not advertise. We look at cases on an individual basis. Even if you have been rejected by other lawyers please call us to discuss your case. We have won millions of dollars for clients who had been rejected by other lawyers or found to be contributory negligent. You will speak with a lawyer directly. There is no fee to speak with a lawyer about your case.