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Common Client Mistakes Detrimental to A Favorable Outcome in A Personal Injury Claim

Oct. 18, 2021

Interviewer: What would you say are some of the mistakes people make unintentionally or intentionally that hurt their ability to get compensation and that hurts their case?

Guy S. DiMartino: There's no order of this. There's probably like five or six repetitive big mistakes. The first mistake that I see is that if somebody does not hire a lawyer quickly after the accident, they really need to document what transpired in the accident. They need to make sure that they've taken photos of the vehicles, photos of the accident scene and photos of themselves because, say, the window broke and you have all these little scars because it shattered and cut your arm. In three months or six months or a year, if a jury is going to be looking at this, the cuts will be healed up and the jury is not going to understand; the same thing with the vehicles. A lot of times, folks will come in, a month, two months, three months after an accident and I'll ask them for pictures of the cars and they say, “Oh, I thought the body shop took pictures”, or, “I thought the insurance company took pictures”.

It Is Imperative that The Scene of An Accident and Injuries Be Properly Documented by Taking Pictures

Sometimes they do, sometimes they don't, they are very difficult to get and a picture is worth a thousand words. The picture can actually show an insurance adjuster or a jury what transpired in the accident. The same thing with the accident scene, you know, there might have been a tree that was blocking somebody's vision, there might be gouge marks on the road, there might be skid marks, all that stuff washes away, you know, trees get cut and things like that happen and then, if you're trying to put this together three months down the road or six months down the road, it's sometimes very difficult. If there is a dispute regarding either the nature or extent of the injuries or what happened in the accident, and if we don't have pictures of the scene and we don't have pictures of the vehicle or we don't have pictures of the person, it really can cause the case to go down the tubes.

One of The Common Defenses that Insurance Companies Use Is that The Claimant Was Not Wearing a Seat Belt

I can tell you that I had a case a while back where I never thought that the defendant was going to allege a seatbelt defense. One of the defenses that the insurance companies can use is that, “You weren't wearing your seatbelt and because you weren't wearing your seatbelt, your injuries were more severe”. This person had bruising because of the seatbelt. My investigator was too embarrassed to take photos of the area that was bruised. So, a year or two years down the road, we had difficulty reproducing the actual bruising pattern which a jury would have really latched on to. So, it's really important to document every little piece of information because you never know when you're going to need it. It's when you don't have the information that you need it.

It Is a Mistake to Believe that An Insurance Company Is a Car Accident Victim's Friend

The second mistake that I see is that clients think the insurance company is their friend. This is especially true with the insurance company on the other side because a day or two after the accident, the insurance adjuster is going to call up, they're sort of skilled, they're nice, they appear to be friendly and they lull people into a sense of security. And a lot of times, people will talk without thinking. What happens is a lot of times, the insurance adjuster will say something like “We're really sorry that the accident happened. I really need to find out the facts of the accident and believe me, if we're at fault, we're going to take care of you and it's going to be quickly. In order for me to do this, can I record your statement?” So, the adjuster seems to be really friendly and really wanting to do the right thing, so what does the client say? “Yes”.

The Insurance Adjuster Will Ask in A Statement About Speed, Time and Distance

But when you and I are talking in a normal conversation, we talk a lot of times without thinking. Especially when it comes to speed, time and distance, these are the three biggest mistakes when it comes to the liability questions that insurance adjusters will ask in a statement. What happens is that somebody will get an innocuous question that says, “Well, how long do you think it was from the time that you saw the other vehicle until the time that the crash occurred?” In the potential client's mind, they're saying, “Oh, it was a short time”, but without thinking, they'll say something like “3 seconds”, when it's really a split second. So, then later on, the insurance adjuster when they have this written down and it's on audio or it's in a transcript, they'll say, “Look, 3 seconds, the car was going in a 40 something feet a second or whatever the calculation there is based on speed, you have plenty of time to avoid the accident”, and the client say, “Well, no, I didn't mean that. It was only a split second”.

Injured Folks Shouldn't Give Statements to The Other Insurance Company

Any time somebody is injured in a car accident or any personal injury case has to explain things away and backtrack; it goes back to the whole credibility issue. So, giving a statement to the other insurance company, you don't have any duty to do it and there's never anything good that comes out of it. So, that's how it works out on the liability issue. On the damages issue or the injury issue, it usually works out something like this; it never works out for their benefit. Say they went to the hospital and they had like a broken wrist, but they also injured their back but when they go to the hospital because the wrist was what was broken, all the doctor's focus is on the wrist. They cast the wrist, they give pain medication for the wrist, and the client is focused on the wrist. So, what happens is a few days after the accident, the adjuster calls up and says, “Well, can you tell me about your injuries? I want to make sure that your bills get paid”, and so, the client is worried about her wrist.

Nothing Good Ever Comes out Of Giving the Adverse Insurance Company a Statement

So, then she says, “Well, I hurt my wrist”, and she's taking pain medications and she's thinking about her wrist, she's not really thinking about her lower back. This is actually transcribed into some type of transcript. So, then, three weeks later or four weeks later, her back starts to hurt, she goes and gets treatment because the pain meds have worn off from the wrist, the wrist is healed up in six to eight weeks and the person ends up going and having back surgery because they got a huge herniated disk and a pinched nerve and now, the insurance company takes the position, “Hey, you never told us anything about a back injury. What you're doing is exaggerating. You're lying. Come on, if your back was hurting, you wouldn't have known it 3 days after the accident or 4 days after the accident”, so there's nothing that's really good that ever comes when the adverse insurance company wants to take your statement. It's not going to get a case settled quickly, it is not going to help you, and it's only going to hurt you.