Claim Compensation for Whiplash

Whiplash is the most common form of injury that follows an automobile accident. A whiplash injury refers to severe muscle strains in the neck and shoulder region. However, if you have been inflicted with such an injury due to the negligent driving of someone else, then it is necessary that you claim compensation for whiplash against the negligent driver. A claim will cover your current medical expenses, as well as your future medical treatment.

Steps

Preserving Your Claim for Compensation

  1. Stay calm. Although getting into a car accident is a stressful situation, try to remain calm.[1] Do not yell or argue with the other driver, even if you believe the accident is 100% their fault.
    • Letting anger get the best of you will only cause the other driver to blame you for the accident.
  2. Check to see if anyone is injured. If you or the other driver is injured, help as much as you can until the police or paramedics arrive. If you experience whiplash symptoms at the scene of the crime, then you should go to the emergency room with the paramedics.
    • Common whiplash symptoms include neck pain and stiffness, reduced range of motion, headaches, tenderness, and fatigue.[2]
  3. Call the police. Call 911 or make sure that someone at the scene does.[1] When the police arrive, provide an honest assessment of what happened.
    • Avoid admitting responsibility to the police or anyone else at the scene. Avoid saying, “I’m sorry.”
    • Often insurance adjusters will talk to the police officers if there is any question as to fault, so not calling the police only harms you. It may reduce your amount of compensation.
  4. Get the other driver’s information. It is critical that you get the name, driver’s license number, and license plate number for the other driver.[1] You will also need that person’s insurance policy number, though they may not have it with them at the scene of the accident.
  5. Take pictures of the scene. If possible, take pictures of the accident, using your phone or another camera.[1] Take pictures of the cars and the surrounding area, including any skid marks on the road.
    • If you are too hurt, have a passenger or someone else at the scene take pictures. Whatever you do, take care of yourself at the scene of the crime.
  6. Find witnesses. Finding people at the scene who can confirm your story is critical for a future lawsuit. Ask witnesses to give statements to the police.
    • Also get contact information for the witnesses, e.g., a phone number or email. If you go to trial, you may need to call them as a witness.
  7. Take notes. As soon as possible, you should sit down and write out everything that you remember about the accident. Write out what you did and how events transpired, as best as you can remember. Try to record the following:[3]
    • The speed you were driving and the weather conditions.
    • Any distractions as you were driving.
    • Anything you heard after the crash.

Documenting Your Injuries

  1. See a doctor. Even if your pain isn’t severe, you should still see a doctor promptly. Insurers assume that if you didn’t see a doctor than you couldn’t have been all that hurt.[4] When choosing a doctor, you should go with a traditional M.D. instead of an alternative medicine practitioner or a chiropractor.
    • It is difficult for insurance companies to pay for services from providers of alternative medicine. Instead, they will ask for a substantial discount. You may end up having to pay the difference.
    • Also, if you want to use your doctor as a witness at trial, then a traditional M.D. will be more credible as a witness.
  2. Keep records. Your doctor’s visit will create a useful paper trail documenting your injury.[5] Keep records of any follow-up appointments or treatments, including physical rehabilitation.
    • Hold onto all bills and receipts. These are important documents for helping to calculate damages—the amount of money the driver at fault ultimately owes you. You are allowed to be compensated for money spent on medical treatment.
  3. Calculate missed work. Also keep track of the amount of work that you miss. If you are employed by someone else, have your boss draft a letter on company letterhead. The letter should include your name, position, rate of pay, the number of hours usually worked, and the number of hours or days you missed.[6]
    • If you are self-employed, then you might need evidence of what you make in a typical year, so that the court can calculate a rough idea of how much money you might have earned but for the injury.[6]
  4. Keep a daily journal. At trial you will need to produce evidence of pain and suffering caused by your injury. One way to document that is to keep a daily journal.[7] In the journal, you can record what you are feeling, the severity of the pain, and your moods.
    • This information may be critical to your case. Even if you are angry and depressed, you should record what you are feeling on a daily basis.
  5. Get an estimate for car damage. You can also be compensated for any damage to your car if you were not at fault. Accordingly, you should get an estimate for the amount of damage caused. If you must have your car repaired, then save all receipts that list the cost of repairs.
    • Lawsuits can take up to 2 years to resolve, so don’t hold off on repairing your car before the conclusion of the suit. You can use the amounts paid to fix the car as your estimate of damages.

Filing a Claim with an Insurance Company

  1. Call your insurance company. To begin your claim, call your insurance company and inform them that you are filing a claim.[1] Understand that you will be dealing with a car insurance claims adjuster or liability examiner who views his job as saving his employer money. Accordingly, you should anticipate that the adjuster will attempt to elicit information from you that will help the company escape liability.
    • You should call your insurance company within 24 hours.[1]
  2. Call the other driver’s insurance company. If the other driver had insurance, you should call them and also tell them that you will be filing a claim against the.[8] Remember that the other driver’s insurance company also wants to limit how much money it has to pay out.
    • Find out if your state is a “no fault” state. In these states, you will need to recover medical expenses from your own insurance provider, regardless of who is responsible for the accident. Current “no fault” states include: Florida, Hawaii, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Dakota, Pennsylvania, Utah, and the District of Columbia.[9]
    • However, if the injury is severe, you will be allowed to “step outside” the no-fault system and recover damages from the party at fault. If you have questions, you should talk to an attorney who can advise whether or not you may proceed outside the no-fault system.
  3. Explain circumstances briefly. Regardless of which insurer you are talking to, refuse to give an exhaustive description of the accident.[8] However, if the other driver was clearly at fault, then it is appropriate to explain the circumstances if asked. For example, if the other driver ran a red light, then you should tell the adjuster that.
    • In situations where the other driver was at fault, the adjuster will call the other insurance company and try to begin building a case.
  4. Avoid giving names of witnesses. If you immediately disclose the identity of witnesses, then the insurance company could contact those witnesses and try to get them on the record casting doubt on your claims. Instead, state that there “may be” witnesses.[8]
  5. Don’t immediately share medical information. An insurance company may want to go through your medical history to blame the whiplash on something else. For this reason, you should not send them any medical information.[8]
    • Some insurers may ask that you go to a doctor of their choosing. Know that you are not required to at this stage. However, once you start a lawsuit, they could ask the court to order you to undergo an independent medical examination.
  6. Refuse to immediately settle. It is possible that the insurance company could offer you a settlement quickly in hopes that you will settle, perhaps unaware of either the extent of your injury or of the monetary value of your injury.[8] You should listen to any settlement offer but politely decline to quickly accept it.
    • While settling could save you time, you may end up paying for medical expenses if the settlement does not fully cover your medical bills.
    • Ask the insurance company to send you all settlement offers in writing so that you do not feel pressured to quickly accept over the phone.[8]
  7. Avoid admitting fault. The worst thing you could do when talking to an insurer is admitting that you are to blame for the accident. You should never admit that you are to blame. Often, people will wonder if they could have done something differently to avoid the accident that is causing them so much pain. This is normal. However, you shouldn’t wonder about this aloud.
    • Also don’t state that you are “fine” or uninjured.[8]
  8. Prepare for an interview. Your claims adjuster may want to meet with you for a formal interview, face-to-face. You should continue to follow the advice given up to this point: avoid admitting fault or giving more medical information than is absolutely necessary.
    • Be on the lookout especially for “blaming” questions. Remember that fault for the accident has not yet been allocated. A common technique is for insurance claims adjusters to ask questions like, “How could you have avoided the accident?” If asked a question like this, make very clear that the accident not have been avoided and that you were not at fault.
    • If you have to meet with a claims adjuster face-to-face, you may want to consider enlisting the services of an attorney.

Hiring an Attorney

  1. Draw up a list of names. To find a personal injury attorney, you can first ask family and friends for recommendations.[10] If they have used a personal injury attorney, ask them about their experience and whether they would recommend the lawyer or not.
    • Next you could visit your state bar association and find attorneys through their referral service. To find your state’s bar association, visit this website and click on your state.
  2. Meet for a consultation. Personal injury attorneys should offer a free or reduced-fee consultation. At the consultation the attorney will ask specific questions about your injury and the accident. You also will have the chance to ask questions.
    • Be sure to ask about the lawyer’s experience. You will want to hire a lawyer who has had recent personal injury experience.
    • Consultations may be brief. You should bring your medical records and any other documents (such as pay stubs) that will allow the attorney to get a general idea of your case.
  3. Ask about damages. Make sure that the attorney goes through the facts of your case and lets you know the different damages that are available and how they are calculated. Common damages available for car accidents include:
    • Payment for medical expenses.[11] If you received medical treatment or stayed in the hospital, or if you are receiving physical therapy, then the person at fault will pay any costs associated with your medical treatment. You can also recover for future medical care.
    • Payment for lost wages. You can recover for payment for any work that the injury causes you to miss. Even if you are able to take vacation or sick days, you can still be compensated for this time. Additionally, if you are permanently disabled, then the party at fault should have to pay the lost wages that you would have made over the course of a lifetime.
    • Compensatory damages for pain and suffering.[11] “Pain and suffering” is a term for damages that are given because of the very fact that the injury is painful. Juries tend to award large damage awards for pain and suffering, especially if your injury is very significant. “Pain and suffering” damages are not available in “no fault” states, unless your injury is so severe you can “step out” of the no-fault law.[12]
    • Punitive damages. Punitive damages are awarded with the intent to punish the defendant.[11] Punitive damages are awarded mostly for willful and wanton conduct—actions that are so dangerous that they are the equivalent of an intentional act of harming someone.
  4. Ask about fees. The vast majority of personal injury attorneys will work on contingency. This means that they will not charge fees. Instead, they will take a percent of any damages awarded (generally 33-40%).[13]
    • Nevertheless, you will still be responsible for the costs of the lawsuit. These costs could be substantial (a few thousand dollars) and will cover filing fees, expert witness fees, and costs associated with hiring court reporters.[13]
    • Attorneys may "advance" some costs. This means that they will deduct the costs from any damage award that you receive. If you do not recover anything, then you would be responsible at the close of the lawsuit for paying the attorney fees, but may still be responsible for the fees.

Negotiating a Settlement

  1. Understand the advantages of settlement. Negotiation has several advantages. First, if you settle you will be guaranteed to receive some monetary compensation. Trials are often unpredictable, and you could either lose at trial or receive only a small damages award.
    • Another advantage is that you avoid the emotional turmoil of trial. You will not have to testify and you will not have to sit through a nerve-wracking trial.
    • Also, you could reduce your costs. If you settle before trial, you will not have to pay for expert witness fees, which could be substantial. The average hourly fee for medical experts to testify in court is $555.[14]
  2. Understand the disadvantages of settlement. Settlement also carries risks. If you accept a settlement too soon, before you know the full extent of your medical expenses, you may end up having to foot the bill for your rehab. Once you accept a settlement you may be required to sign a liability release, which means you cannot sue the defendant to recover more money.
    • If someone harmed you intentionally, then you might be denying yourself the ability to get punitive damages, which could be substantial. A defendant is unlikely to include punitive damages in a settlement agreement.
  3. Decide on your best outcome. You should go into settlement negotiations with some idea of how much your injury is worth. To get a sense, you could meet with an attorney, who has experience in the field.
    • Also set a “reservation” price: the absolute minimum you will accept. If you are offered anything less, you will walk away.[15]
    • You should seriously consider all settlement offers, even those that come in under what you think your injury is worth. A reasonable settlement will allow you to get on with your life and gain access to much-needed funds.
  4. Engage in negotiation. There are some tried and true strategies for negotiation. First, you send the insurer (or defendant if he has no insurer) a demand letter asking for a high compensation. The other party will respond by pointing out weaknesses in your case and offering a lower amount. Generally, you counter-offer, lowering your price somewhat.[16] This goes back and forth.
    • The key is not being afraid to be aggressive.[15] It is very difficult to demand too high of an offer in the initial demand letter. In fact, most people are not aggressive enough.
    • Your initial demand will help “anchor” the negotiations. If you are sufficiently aggressive, your anchor will be a high number, and the amount you ultimately settle for will be accordingly high. If your initial offer is too low, the negotiations will become anchored at a much lower level.

Initiating a Lawsuit

  1. File a complaint. Your attorney will start a lawsuit by filing a complaint in court and sending the defendant a copy of the complaint along with a summons. The complaint will identify the defendant and allege a set of facts that permit recovery for monetary compensation.
    • The complaint also states the legal theory that permits recovery. In a traffic accident personal injury suit, the plaintiff often alleges that the defendant acted “negligently.” This means that the other driver did not exercise reasonable care, and his failure to exercise this care caused your injuries.[17]
  2. Engage in discovery. After filing a complaint, each party engages in “discovery.” Discovery is the fact-finding phase before a trial.[18] Both the plaintiff and the defendant can request documents in the possession or control of the other party. Also, each party can request that witnesses answer questions either in writing or orally.
    • Discovery can last for a year or so. During the discovery process, each party often goes into court to compel the other party to turn something over that they think the party has. This back and forth can take time.
    • As your lawsuit moves along, remember to continue to gather evidence for your case. Continue to keep your journal and hold onto records of medical appointments, bills, and any other expense related to your whiplash.
  3. Undergo a defense medical examination (DME). The purpose of the DME is for choosing doctor of the defendant’s choosing to look over your injuries. The defendant can ask a court to compel you to attend.
    • Personal injury attorneys report that the DME is rarely fair. Rather, the defense hires a doctor who invariable concludes that you aren’t injured or that your injury isn’t as serious as you claim.[19]
    • Try to have a friend go along with you. If you can afford it, hire a nurse or doctor. Whoever goes with you can testify in court about the exam.[19] Thus, if the defense doctor claims that something happened during the exam that didn’t happen, you will have a witness to back you up.
    • Be aware that you are under observation at all times in the doctor’s office.
    • Take a written statement of how you were injured. The exam may start off with the doctor asking how you were injured. By using the written statement, you will be sure not to accidentally misspeak and have your words used against you.[19]
  4. Prepare for a deposition. During discovery, each party may ask questions of witnesses in person. As the injured plaintiff, you will certainly be deposed by the defendant. You can prepare for the deposition with your attorney.
    • The deposition is as important as testimony in court during a trial.[20]
    • At a minimum, your attorney should sit down with you for a practice deposition. Your attorney will pepper you with questions and you will discuss your answers. Your attorney will not tell you what to say. However, she will help you clarify and organize your answers.
  5. Sit for the deposition. The deposition will probably be held at a lawyer’s office. You will answer questions under oath, and the questions and answers will be recorded by a court reporter.[20]
    • During the deposition, be courteous to everyone at all times. Avoid being angry or annoyed.[20]
    • Be sure that you understand the question. Ask for clarification if you do not. If you do not know something, don’t guess.[20]
  6. Defend a Motion for Summary Judgment. Depending on the circumstances of your case, the defendant may file a Motion for Summary Judgment. With this motion, the defendant argues that there are no material facts in dispute, and that he is entitled to judgment as a matter of law.[21]
    • If the defendant wins the Motion for Summary Judgment, there will be no trial. Your attorney will defend against the motion by arguing that there are questions of material fact that are in dispute—typically, who is at fault for the accident.
    • Although it is possible for your attorney to file a Motion for Summary Judgment, it is much harder to win as a plaintiff and you will likely not prevail.

Pursuing Alternate Dispute Resolution

  1. Consider mediation. Mediation is similar to negotiation, except a neutral third party (the mediator) meets with both you and the defendant to discuss your case.[22] You will have an opportunity to speak to the mediator alone as well as in front of the other party.
    • In mediation, the mediator does not decide who is right and who is wrong. Rather, the mediator tries to nudge each side toward a resolution that is mutually acceptable.[22]
    • Mediation is generally non-binding, meaning that either party may walk away from the table at any time.[23]
    • One advantage of mediation is that it can be completed much faster than a trial. This will save you not only time but money.[22]
  2. Consider arbitration. In arbitration, a private person (and not a judge) sits and hears the evidence presented before rendering a decision for one of the parties.[24] Unlike mediation, arbitration is often binding. Once an arbitrator makes a finding, you have limited ability to overturn the decision.[25]
    • You may have an attorney represent you in arbitration, which is usually held in the arbitrator’s office and not a courthouse.
    • You and the defendant may adopt a “high-low” agreement before arbitration. Under this agreement, you will not recover more than the “high” amount or less than the “low” amount, regardless of what the arbitrator awards.[24]
  3. Entertain another settlement offer. If you engaged in fruitless settlement negotiations earlier, expect for another offer if the defendant’s Motion for Summary Judgment is denied. Settlement offers frequently follow failed summary judgment motions because the defendant absolutely wants to avoid trial.

Going to Trial

  1. Pick a jury. In a personal injury lawsuit, you will have the option of using a jury to decide your case. In civil trials, the number can vary by state, with juries of 12 or 9 being common. In many states, civil juries do not have to be unanimous.
    • A panel of jurors (maybe 12 at a time) is called up and questioned by the judge and attorneys in a process called “voir dire.”[26] The plaintiff and defendant can each strike a juror for cause (such as admitting bias). You are also given a certain amount of “peremptory” challenges. Peremptory challenges are those where you do not have to tell the judge a reason for striking the juror.[26]
    • You will want to screen jurors for bias. As the plaintiff in a personal injury case, you will want to remove anyone who harbors resentment against people who file personal injury lawsuits. Accordingly, your attorney will ask prospective jurors if they have ever been sued for a personal injury.[27]
    • Your lawyer also may ask if any prospective juror has worked for an insurance company. Your attorney will also try to exclude these jurors.[27]
  2. Deliver an opening statement. Your attorney will deliver an opening statement to the jury. An effective opening statement will provide the jury with a sneak peek of what the evidence will show. Your attorney should focus on your key facts—those facts that are most persuasive in your favor.
    • Your attorney also should account for “bad facts.” A bad fact is something that your opponent will bring up to support his case. Your attorney can mention them early in the opening statement to take the sting out of them.[28]
    • Be confident but brief. Jurors are paying attention to tone, words, and nonverbal behavior.[28]
  3. Present evidence and examine witnesses. Your attorney will need to call witnesses and introduce documents into evidence. You will also be called to testify.
    • Prepare by reading all relevant documents in the case, including but not limited to your description of the accident as well as your journal. Also review your deposition testimony. Familiarizing yourself with your prior statements will allow you to avoid being impeached by them.[29]
    • Dress appropriately. Men should wear a dark, conservative suit with a white shirt and dark tie. Women should dress appropriately in a conservative style as well.[29]
    • Do not cover up any injuries with make-up.[20] You want these to be visible to the jury.
    • As you testify, speak confidently and address the jury. Do not be rattled when defense counsel asks embarrassing questions.
  4. Cross-examine the other side’s witnesses. Your attorney will want to undermine the defense witnesses. She can do this in several ways: by impeaching them, by emphasizing limitations on their ability to perceive, or by eliciting testimony that they have been convicted of a crime of moral turpitude.[30]
  5. Deliver a closing argument. In the closing argument, your attorney will sum up the evidence and explain how it supports your position. Be confident as your lawyer talks and look the jurors in the eyes.
    • After explaining how the evidence supports your case, your attorney will also rebut the defense’s evidence.[31] She will explain why their witnesses are mistaken or not credible; or, explain how the other side’s evidence actually supports your own interpretation of events.
    • Begin and end strong. Research reveals that people remember the first and last things that they hear.[31] Your attorney should therefore begin and end with strong points by reminding jurors of the most persuasive evidence in your case.
  6. Appeal if necessary. If you lose at trial, you may have the right to an appeal. You will have to draft a Notice of Appeal.
    • Many courts have a Notice of Appeal form. After the verdict, your attorney can ask the judge or clerk for the form.
    • There are timelines you must meet to appeal. You should meet with your attorney soon to decide whether an appeal is worthwhile.

Tips

  • Your lawyer is required to make you aware of any settlement offers made by the opposing party. If you do receive an offer, discuss with your lawyer whether it would be a good deal. Ultimately, the decision whether to accept the settlement rests with you.
  • Always be friendly and polite to claims adjusters. Failure to do so may lead to a lower settlement offer or protracted negotiations and litigation.
  • One advantage of settling is that the other party cannot appeal.

Warnings

  • A whiplash is an extremely severe injury. Be careful to avoid accidents.
  • You must also ensure that your accident description matches with the description in the police files. For securing information from the other driver, you have law by your side.

Related Articles

Sources and Citations

  1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 http://www.cars.com/go/advice/Story.jsp?section=ins&subject=how_file&story=what-to-do-in-an-accident
  2. ↑ http://www.mayoclinic.org/diseases-conditions/whiplash/basics/symptoms/con-20033090
  3. ↑ http://www.dmv.org/insurance/how-to-document-auto-accident-damage.php
  4. ↑ http://www.all-about-car-accidents.com/resources/auto-accident/car-accident-injuries/see-a-doctor-asap-painssymptoms-after-a-car
  5. ↑ http://www.alllaw.com/articles/nolo/personal-injury/document-injuries-after-accident-bolster-claim.html
  6. ↑ 6.0 6.1 http://www.alllaw.com/articles/nolo/personal-injury/lost-income-damages.html
  7. ↑ http://www.dmv.org/insurance/tips-on-documenting-personal-injury-expenses.php
  8. ↑ 8.0 8.1 8.2 8.3 8.4 8.5 8.6 http://www.after-car-accidents.com/car-accident-settlements.html
  9. ↑ http://www.iii.org/issue-update/no-fault-auto-insurance
  10. ↑ http://www.forbes.com/sites/financialfinesse/2011/10/05/how-to-find-a-good-lawyer-when-you-really-need-one/
  11. ↑ 11.0 11.1 11.2 http://www.alllaw.com/articles/nolo/personal-injury/types-of-compensation.html
  12. ↑ http://www.all-about-car-accidents.com/legal-advice/auto-accident/car-accident-claims/how-does-pain-suffering-work-car-accidents
  13. ↑ 13.0 13.1 http://www.alllaw.com/articles/nolo/personal-injury/lawyers-fees.html
  14. ↑ http://www.seak.com/expert-witness-fee-study/
  15. ↑ 15.0 15.1 http://hbswk.hbs.edu/archive/4302.html
  16. ↑ http://www.alllaw.com/articles/nolo/personal-injury/settlement-negotiation-process.html
  17. ↑ http://www.west.net/~smith/negligence.htm
  18. ↑ http://injury.findlaw.com/accident-injury-law/fact-finding-understanding-the-discovery-process.html
  19. ↑ 19.0 19.1 19.2 http://www.all-about-car-accidents.com/defense-medical-exams.html
  20. ↑ 20.0 20.1 20.2 20.3 20.4 http://dougfriesen.com/articles/Guidelines%20to%20Deposition%20in%20Personal%20Injury%20Case.pdf
  21. ↑ http://www.ilnd.uscourts.gov/home/JUDGES/DENLOW/papers.htm
  22. ↑ 22.0 22.1 22.2 http://www.nolo.com/legal-encyclopedia/mediation-personal-injury-claims.html
  23. ↑ http://www.wipo.int/amc/en/mediation/guide/
  24. ↑ 24.0 24.1 http://www.all-about-car-accidents.com/arbitration-of-car-accident-claims.html
  25. ↑ http://www.sec.gov/answers/arbappeal.htm
  26. ↑ 26.0 26.1 http://www.hg.org/article.asp?id=27428
  27. ↑ 27.0 27.1 http://www.legalaidman.com/how-an-attorney-picks-a-jury-for-a-personal-injury-case/
  28. ↑ 28.0 28.1 http://www.cravath.com/files/Uploads/Documents/Publications/3317544_1.pdf
  29. ↑ 29.0 29.1 http://www.mitchell-attorneys.com/legal-articles/how-to-be-a-good-trial-witness/
  30. ↑ http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/crossexam.html
  31. ↑ 31.0 31.1 http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/trialpractice_craftingclosing.html
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