12 Things You Need to Know if You Are Going to Try and Represent Yourself
We have an admitted bias: we believe most injury victims and families of all wrongful death victims need high-quality legal representation so their rights are fully protected and so they can maximize their financial recovery. With that said, the purpose of this page is two-fold: (1) to highlight just a handful of the decisions and work that goes into successfully prosecuting a personal injury or wrongful death case in hopes that you will agree with us about the need for legal representation; and, (2) to help educate those who insist on going it alone on just a few key areas of their injury case.
Depending upon the nature of your case and how far along it proceeds, below are some considerations you should keep in mind. To be absolutely clear, these pages are not in any way intended to be a substitute for personalized legal advice from an experienced attorney.
1. Statutes Of Limitations and Repose
In simplest terms, statutes of limitation and statutes of repose are deadlines by which you must bring your case but they operate differently. A statute of limitation prescribes a deadline for filing suit after your claim accrues. A statute of repose is a deadline for filing suit that applies regardless of when your claim accrues – the date the time period begins to run is dependent on a date other than the date of the incident that caused injury.
The best way to understand how this works is to consider the example of a car wreck. If you are hurt in a car wreck caused by the fault of someone else, your cause of action (your right to sue) against the at-fault party would accrue the day the accident occurred and thus the statute of limitations would start to run on the day of the accident. In Tennessee car accident cases, the deadline for filing a lawsuit against the at-fault driver is typically one year. Thus, if you do not settle your case or file a lawsuit against the at-fault driver (and other responsible parties) within one year, whatever rights you have will be lost.
However, a statute of repose can result in a loss of the right to bring a case before the one-year deadline expires. For example, if one of your claims was against the manufacturer of your vehicle because the airbags failed to deploy and that failure caused your injury, the day of the accident would still be the day your cause of action accrued. But, if your car is more than 10 years old, your claim against the auto manufacturer would be barred by the statute of repose because the statute of repose is triggered by the date the vehicle involved was sold to the first user or consumer. In other words, your rights against the auto manufacturer were lost before they ever accrued.
Different statutes of limitations and statutes of repose apply depending upon the type of case and other factors. And, once a statute of limitations has ran or a statute of repose has passed, your rights are lost forever. There is no mechanism for reviving them. Thus, it is essential to understand exactly what legal deadlines apply to each type of case and then take appropriate steps to either settle the case or file a lawsuit within the applicable time period or time periods.
2. Preparing For Written or Recorded Statements
Shortly after an accident, most injury victims will receive a call from the at-fault party's insurance company requesting either a written or recorded statement. Our advice is that you have an attorney hired before giving any such statement and go through an appropriate preparation session. A good lawyer will not encourage or even let you lie but he or she will help you give truthful, appropriate answers.
If you intend to give a statement without the assistance of a lawyer you should keep the following in mind:
Tell the truth, the whole truth and nothing but the truth. While this seems so easy, people have been known to ignore or forget this advice.
An injured party often gets tripped up when he or she thinks the information is unrelated to the accident and will never be discovered. For instance, in a recorded statement for an accident in which you have sustained a back injury, the questioner asks if you have ever hurt your back before. You have, but it was ten years prior to the accident and you were not having any problems from it before the accident. You may not want the other side to know about it because you do not want them making a big deal about the prior injury when you know it is not related to the injuries you sustained in the accident. Plus, you figure they will never know about it. Or, you may have forgotten that you even had treatment for the back injury and thus do not mention it.
Unfortunately, these thoughts are just wrong. The failure to disclose this type of information will do substantially more harm to your case than disclosure of it ever would have. First, the prior injury may or may not be relevant, but by hiding it you have definitely made it relevant. Second, you may well have irreparably damaged your credibility in the eyes of the person you want to convince to write you a check and the judge and jury, if your case gets that far. Third, a good defense lawyer hired by the insurance company for the at-fault driver will find the old back injury. By combing through your medical and pharmacy records, they will almost certainly find it. So, just tell the truth.
Listen carefully to the question and answer only the question. You are under an obligation to tell the truth when answering the question, but you are not under an obligation to volunteer information. Volunteered information will lead to additional questions, additional questions will lead to additional answers, and additional answers give rise to an increased risk of error.
Avoid unclear answers such as uh-huh and huh-huh. Some responses can be hard to construe and if it is important you do not want there to be any doubt about your answer.
Request a copy of your statement. When you receive it, if there are any errors (misstatements or you inadvertently failed to disclose information that was responsive to a question), clear it up right away.
If the statement is going to be videotaped, dress and groom appropriately. Ultimately, the video may be played to a jury and you want to look your best.
3. Securing Physical Evidence
Following an accident, it is critical to gather and preserve key evidence. The type of evidence and the mechanism for gathering it depend largely upon the type of case. For instance, in a car accident case with a tractor-trailer, it will almost always be important to request "black box" data be preserved. In some cases, you will need to ensure the trucking company preserves the tractor-trailer in its post-accident condition until it can be inspected by an accident reconstructionist and biomechanical expert, engineers, etc. Trip tickets, fuel receipts, the driver's logs, the driver's personnel file and other written documentation must also be secured before it is lost or destroyed.
Sometimes, the physical evidence is not in the possession of the other party but is still subject to being lost. For example, yaw marks, skid marks, gouge marks and other physical evidence at the scene of the accident can disappear quickly due to weather, continued use of the road by other drivers, etc.
Of course, the injured party has a responsibility to preserve key evidence too. For instance, all too often in products liability cases, the injured party disposes of or repairs the defective product or they let their insurance company salvage their vehicle before the other party has a chance to inspect it. Destroying evidence, or allowing others to destroy evidence, can make it very difficult, if not impossible, to prove your case.
4. Claims Against Those Who Do Not Readily Appear To Be At Fault.
Your accident must be carefully analyzed to identify all culpable parties. By way of example, in a car accident caused by a drunk driver, you would definitely have a claim against the drunk driver. But, you may also have a liquor liability claim against the bar or restaurant where he or she was over-served.
Or, if a component of your vehicle failed to perform as designed causing or enhancing your injuries, you may also have a product liability claim. Pursuing these third party claims are sometimes the only way an injured party can receive complete compensation for their injuries.
5. Obtaining Medical Records and Bills
Following a serious accident, you know you are hurt. But, the person you want to write you a settlement check does not know you are hurt. And even if they think you probably are hurt, they want to see if you have ever been hurt before because prior physical problems can affect whether and how much will ultimately be paid to resolve the claim. So, they will want to see copies of your medical records to determine the nature and severity of your injuries. They will want to see what you said about the accident in your medical records. They will want to see how your treatment progressed and if you were compliant with your doctor's instructions. In other words, if the doctor said you needed physical therapy three times a week for 4 months, did you actually go three times a week for four months or did you only go sporadically? If you did not comply with the recommended physical therapy, the insurance company will argue you were not hurt or at least not hurt as bad as you claim. It is important to follow the advice of your medical professionals, and that includes showing up for appointments unless circumstances dictate that you cannot be present.
You will also need to produce accurate copies of your medical bills and out-of-pocket expenses. So, you will need to keep copies of any receipts for co-pays, non-covered prescriptions or things like crutches and walkers.
Gathering all of this information takes time and money so it is best to leave yourself plenty of time to do this. Of course, if you are still treating for your injuries, you will need to update both the records and the bills to reflect the ongoing medical treatment.
Depending upon the nature of your case, it may be necessary for you to hire an expert to prove your case. For instance, in a health care liability case (formerly known as a medical malpractice case), a plaintiff must contemporaneously file with the lawsuit a certificate of good faith if expert testimony is required. The certificate of good faith is a certification that the lawyer or pro se plaintiff has consulted with one or more qualified experts who have provided a written statement that there is a good faith basis to maintain the action. And, Tennessee statutes mandate the expert must be from a contiguous state and be familiar with the local standard of care.
Likewise, in a product liability case, you may need to hire engineers to opine on the defect in the product, biomechanics experts to testify how the defect caused the particular injury, etc.
Even in more straight-forward car accident cases, you may need an accident reconstructionist to testify regarding speeds, pre-impact braking, etc.
Finding a qualified expert takes time. And just as importantly, hiring a qualified expert costs money. In complex cases, the expert fees alone can cost hundreds of thousands of dollars. At the Law Offices of John Day, we advance all these costs on your behalf so you are not out of pocket any money to pursue your rights. If you go it alone, you must be prepared to incur these expenses
The at-fault party's insurance company is not your friend. The adjuster may seem perfectly nice and helpful (at least in the beginning), but do not kid yourself into thinking they are going to do you any favors. In fact, some will drip sugar while they gut your case. Insurance adjusters (also known as claims adjusters ) are trained professionals. Their job is to protect the insurance company, not to help you.
As an initial point, you should know an insurance adjuster will be thrilled you do not have a lawyer. Without a lawyer, they know they are unlikely to have to produce documents, preserve evidence, pay a fair amount, and so many other things. They can include things in the release that no lawyer in their right mind would allow their client to sign. They can, and often do, drag their feet until the statute of limitations is about to run and then make a low-ball offer knowing you do not have time to do anything about it. The reality is that most folks who are unrepresented are so overwhelmed with their injuries and the process that they do not have the time or inclination to prepare their case as it should be prepared to ensure the best possible outcome.
As part of the settlement, you may need to consider subrogation, the language of the final release, hospital liens, distribution of wrongful death proceeds, approval of minor settlements, etc. All of which are discussed in separate sections below.
8. Where Do You File Your Lawsuit?
I know, you think your case will settle and you will never have to worry about this, but you may be unpleasantly surprised. We get calls every week from folks who have tried to negotiate their own settlement but are unable to do so. While they have been trying to deal with the insurance company, the clock has been ticking. So by the time they finally decide they are not being treated fairly and seek the help of a lawyer, they are sometimes only days away from the statute of limitations. Almost universally, we have to turn these folks away. Even relatively simple cases require time to investigate all at-fault parties, prepare the complaint, order medical records, determine service of process information, etc. In complex cases such asmedical malpractice and product liability cases, it can take months to do the mandatory work necessary to file suit. If there is not enough time for us to do a thorough and excellent job, we must refuse the case.
So if you find yourself in the position of having to file your own lawsuit, you will want to give consideration to all possible venues in both state and federal court. Each jurisdiction needs to be assessed for its judges, juries and awards. First, you will want to investigate who are the judges in each jurisdiction. You want to know how quickly they move their docket and what is their civil trial experience. The more trial experience a judge possesses usually means he or she is less likely to commit error during the trial. In turn, this means any award you receive is unlikely to be reversed on appeal. Another consideration is the jury pool. You need to ask yourself: what is the socioeconomic status of an average juror in the jurisdiction? What is the education level? Is there some reason the jury pool may be tainted in your case i.e, the defendant is the biggest employer in the county? And, what is the likely outcome based on prior jury verdicts in the jurisdiction?
9. Subrogation Interests and Hospital Liens
Subrogation issues are a part of almost every serious injury case. What is subrogation and how does it arise? Subrogation is a legal creation in which one person or company takes over your rights against a third party. It often occurs in the context of medical bills, worker's compensation benefits and short-term disability benefits. But, it can also occur with Medicaid and ERISA benefits.
Here are some examples: if you are involved in a car accident and need medical treatment, if you have health insurance, your health insurance company will pay your medical bills. The insurance company then has the right to recover those payments from the at-fault party. And if you file suit against the at-fault party, the insurance company has the right to intervene in the lawsuit to protect its rights or the company can simply assert their subrogation interest against your recovery.
The same is true in the worker's compensation context. Let's assume you were injured in a car accident while performing your job as a delivery driver. Because you were hurt while on the job, you could collect worker's compensation benefits. But, the worker's compensation carrier has a right to collect from the at-fault party the payments they make to you.
Some subrogation interests are subject to the made-whole doctrine and negotiation of subrogation interests is possible, but these issues are truly best handled by a lawyer experienced in these matters.
10. Approval of Minor Settlements
In Tennessee, settlements involving minors must be approved by the court. If the settlement amount exceeds $10,000, the court may not approve the settlement on the petition and affidavits alone but instead witnesses must testify about the appropriateness of the settlement and the intended use of the money. The court has the discretion to release the money to the child's guardian or require it be deposited with the court until the child reaches the age of majority. T.C.A. § 29-34-105 outlines what must be contained in the petition to the court.
11. Distribution of Wrongful Death Proceeds
This issue can be rather complicated depending upon who survives the decedent. So we suggest you review these pages:
12. Negotiating a Final Release
Congratulations! You have reached a settlement. But the work is not done. You need to negotiate the language of the final release. It is impossible to tell you all of the provisions you might need in your final release because each case is different, but common clauses include confidentiality provisions, liquidated damages clauses for violation of confidentiality provisions, return or destruction of exchanged documents, dismissal of the case and release of any and all future claims even for ones that are unknown or unanticipated, payment of subrogation interests and future medical bills, etc.
As you work through the final documents, be sure to read each and every provision and understand what each clause means. If you execute the document, except under extremely rare circumstances, you will be held to it.
It is possible to represent yourself in personal injury and wrongful death litigation. It is also possible to fix your own car, repair your own lawnmower, draw your own blood, diagnose your own illnesses and figure out appropriate treatment, etc. But the simple fact of the matter is that many times a trained professional can do a much better job, without creating risks, than we can do ourselves. We help people resolve personal injury and wrongful death claims every day, and would be honored to help you navigate through this challenging process.
If you would like to discuss your personal injury or wrongful death case in a free, no-obligation consultation, call us anytime at615-742-4880 or toll-free at 866.812.8787 or simply fill out this online form to schedule an appointment. We handle all injury and death cases on a contingency basis so we only get paid if we recover money for you.