How to negotiate and settle a personal injury claim without an attorney. Can I negotiate and settle my own personal injury case?

Accidents happen every day.  Whether it’s a car crash, slip and fall, or other accident, if it caused an injury and was the fault of another you may have a valid case. You might be entitled to compensation that includes your medical and out of pocket expenses, as well as compensation for pain and suffering, mental anguish and loss of enjoyment of life. 

Any loss of income or earning capacity is another element of damages that you may be entitled to.

Many people who have been hurt in an accident wonder whether they can or should negotiate their own personal injury claim. This really turns into two separate questions.

First, how to settle a personal injury claim without an attorney? Is it possible? The answer is yes, it is and you can. The second question is whether you should do so.  The answer to that depends on many things.

First, is it a complex case? Are the injuries serious? Were there extensive medical expenses or treatments? Will you require further medical care? Have you reached maximum medical improvement (MMI)? Did you lose wages? Did you lose any earning capacity for the future (will this injury in any way impact your ability to work or earn money in the future)?

Investigating, preparing and negotiating a personal injury case is never simple.  The most clear-cut cases become very blurry when an insurance company gets involved. 

If you have not done a proper and thorough investigation your evidence will disappear, the witnesses will not testify the way you thought, and the facts will appear very different than what you anticipated. They will not only have their investigators and adjusters working on the case, they will have their lawyers handling it too.

You will need to have a good investigator in many cases working the witnesses. You need witness statements or affidavits. You will need to secure security camera footage, if it still exists, that may help your case.

Before obtaining it, assuming you can, you will need to have what’s known as spoliation letters served on each location where you believe video exists. Otherwise they may record over the existing footage or destroy it. You may even need to get a court order or subpoena to get the vide. 

To do that you will need to file a lawsuit to get subpoena power. If you fail to preserve video, or other evidence that might be lost or disappear, you could lose your case or claim.

Have all witnesses been located and affidavits obtained? Have you had an investigator get to the scene as soon as possible and take video and photographs? Have you obtained documents and records of what the condition was like before the incident?

Likewise you will want to run complete background checks on the potential defendants and witnesses. Do any of them have criminal records? Are they affiliated with any of the parties?

How clear was the liability (fault) of the other person or party? Was it an individual or business? Are there multiple parties at fault: did more than one person arguable cause the injury?

Did anyone contribute to the accident besides the party you are making a claim against? Did you, the injured party, contribute to the accident or could you have reasonably avoided it or minimized it?

In many cases, you will need to retain one or more expert witnesses. Experts are witnesses with specialized knowledge or skills that can determine who was at fault, how an incident happened, what should have been done, what the relevant industry standards are, how the standards were breached, what the relevant human factors were that played into the accident, and many, many other issues. 

It always depends on the type of case and the facts.  

You may need experts on the damages as well. That would entail retaining experts in the fields of medicine related to the injury, and either have them review the existing medical records or undergo an examination.

Was there any potential intoxication (alcohol or drugs) by you or the party responsible for the accident? Even if you feel that you didn’t cause the incident, use of any intoxicants may affect your ability to recover or the amount you might obtain. 

In some cases under Florida law you can be barred from recovery completely.

Did you post anything on social media either about the incident or your injuries? Social media is a living mine field of hazards for plaintiffs (injured parties). 

What you post – or others post about you – can haunt you in a claim or litigation.

If you have been in an accident and claim that you were hurt, but are later seen in pictures on social media dancing at a party, you may have undercut your whole claim. 

Likewise alcohol and drug use. No, you cannot delete posts. That is considered destruction of evidence under Florida law. Courts have also held that social media posts are not truly private even if you put on privacy in your settings.

The other side can and will obtain all of your social media postings and obtain a download of all the date. It has been correctly said that once something is posted, it is there forever.

These are just a few of the issues that you have to consider when deciding whether to negotiate and settle your own case.

You can make and negotiate your own claim. You will need to be thorough in your preparation. Once you have all your evidence lined up and understand what comparable cases generally settle for (this takes research and experience) you might make a demand for settlement on the insurance carrier.

Understand that the insurance company will never pay you the full value of your case. What you need to decide is whether you will be satisfied with less than the full value of your loss.

This is because insurance companies are wired to make the lowest offer possible. Even if you “negotiate” with them, they will always have the upper hand because they know that without a lawyer you are pointing an empty gun at them. 

Insurance companies care very little about individual cases unless they represent very high exposure (big losses) to them. And they are particularly not scared by someone representing themselves.

To them it means that the case is not very big, isn’t very good or the client could not get a lawyer to take it. They will always feel like you can’t pull the trigger because the only thing that gets an insurer to pay real value is the concern for a significant verdict and potential bad faith exposure (if that exists in the particular case).

To understand bad faith, I would suggest you contact a personal injury attorney because tit involves complex legal issues and the law of each state as to what constitutes bad faith. 

In Florida there are different types of bad faith. In some circumstances you may have to file a statutory notice of insurer violation to trigger a bad faith claim.

Certainly the law does not require that you hire a lawyer to negotiate or settle your personal injury claim. Nor does the law require you to have a lawyer file a lawsuit on your behalf. 

But beware…filing a lawsuit and engaging in litigation is serious business. It is expensive, complex and very time consuming. Representing yourself (being a “pro se litigant”) is like performing your own surgery. 

If you haven’t been to medical school, you may know that you need to fix something, but you don’t really know where and how to cut. You don’t know what to do in response to a complication. You can bleed to death.  Legally you can bleed to death too.

The damage you can do to your case by trying to handle it yourself without a skilled personal injury attorney may be fatal to your case. If you have a serious or complex case, or if the injuries or losses are extensive, you should not try to handle the case yourself.

The best course, for your case and you, is to consult with a skilled personal injury trial attorney. You might find out that your case is better than you thought, or they might tell you things you don’t want to hear. 

Either way you are best served by talking to someone who does this day in and day out. Someone who is trained and experienced in dealing with cases, insurers and the court system.

Remember, an unloaded gun can sometimes be much more dangerous than one that is loaded. Because if you pull the trigger and nothing happens, the other guy may fire back with a bullet.