By Richard Duquette, Esq, Law Firm of Richard Duquette
Part 1 of 2
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All too often I see prospective clients delay in hiring a bicycle injury lawyer. They have a lot of reasons for doing so, ranging from uncertainty about the merits of their case to wanting to avoid the appearance of being overly litigious. However, injured bicyclists should keep in mind that (1) the risks of hiring a bicycle injury attorney are minimal, and (2) delays can prejudice their case. So, let me offer you a few tactical reasons to quickly hire a trained trial lawyer.
1. Zealous Representation and Contingency Fees Minimize Risk
When you hire a lawyer, you authorize him or her to act on your behalf. In fact, a lawyer has a fiduciary duty to zealously protect your interests.(CRPC 3-110).A zealous and competent advocate brings many benefits to a client. One of the most important things a good lawyer knows to do is to strike while the iron is hot.
It is important to combat a misconception common to the “wait and see” approach. Part of an attorney’s role is to assess the strength of your case. It’s only after they do this that they can begin to craft the best arguments and strategy. This is one reason why personal injury cases are generally handled on a contingency fee basis. The client pays nothing upfront, and the attorney takes the case knowing that they will only get paid if they obtain positive results for the client. A personal injury lawyer is therefore just as invested in the outcome of the case as the plaintiff is.
So while an injured bicyclist’s first instinct might be to wait until you know more about whether you have a good case before they talk to a lawyer, this instinct is wrong. Call a lawyer first. An experienced lawyer will be able to evaluate your case early and decide whether it is worth taking. If someone is willing to take on your case on a contingency fee, it means they believe it’s a good case. An attorney with the confidence and the resources to immediately start work on your case is a tremendous advantage.
2. Investigation and Evidence Gathering
There’s a reason why delaying a claim is one of the three key strategies of insurance companies. Delays benefit defendants, not plaintiffs. Trained trial lawyers immediately begin to collect evidence because they know that the victim (Plaintiff) has the burden of proof. Obtaining favorable evidence early on helps meet the burden of proof.This includes compiling witness statements, taking hospital pictures, scene photos, skid marks to prove speed, “black box” and Garmin computer data, damaged helmets to prove a severe impact, police reports, medical records, and more. As I previously explained in another article (see “Evidence Wins Bicycle Injury Cases”), evidence is essential to winning your case and defeating frivolous insurance defenses.
To that end, it’s critical to hire an investigator to obtain the defendant’s admissions of fault, and insurance policy limits information as soon as possible to beat the insurance adjuster’s advice to remain silent. The police do the same thing in criminal cases. Whenever possible, they obtain evidence and statements directly from the “bad guy” before they get a chance to “lawyer up” (or, in the case of a bicycle injury, before the defendant is told by the insurance adjuster to remain silent).
Having defendant admissions and knowing the insurance policy limits helps the trial lawyer effectively size up the case. Locking in the defendant’s story is key before it changes. Ultimately, this saves clients time and money in resolving the case early, as opposed to resorting to lengthy and costly litigation to pin down the facts. Getting admissions of fault and witness statements while memories are still fresh and before insurance lawyers have had a chance to coach the defendant not only gives you an early advantage in negotiations but also strengthens your case in litigation. The testimony of a well-coached defendant and the best-drafted denials of liability are simply no match for an early admission of liability.
3. Avoiding “Claw Back” Liens
Just because you’re not in a rush to file a lawsuit does not mean that other interested parties aren’t sniffing around for the money that you are entitled to. Hospitals and health insurance companies will attempt early on to discover the bad guy’s deep pockets liability carrier to put a lien against your claim. This slows the settlement process and increases your expenses. You see, if you don’t receive a valid notice of a lien, in some cases you can resolve a case without having to fight the collections agents attempts to “claw back” repayment, and instead negotiate from a position of power having the settlement funds in your possession and not held hostage by conditioning settlement on lien payments. Moving quickly on your case is the best way to protect yourself and ensure that you receive the maximum net recovery.
What unsuspecting victims/plaintiffs don’t know is that while they are in the hospital, financial service agents will approach them for releases to later get medical records and police reports with the deep-pocket insurance carrier’s identity. They make it sound friendly and helpful, but just because they are providing your medical treatment does not mean that they have your legal and financial interests in mind. In reality, these agents are only looking to take a large part of your injury settlement by way of “balance billing” the difference between what your health insurance contractually paid, and the gross full bill not covered by health insurance. In some cases, this is illegal.
In Part 2 we’ll discuss Social Media Pitfalls and Designing a Damages Strategy – Link
So, please do yourself a favor, hire an experienced bicycle injury trial lawyer early on. Don’t “wait and see,” and don’t hire a discount lawyer. Don’t waste your time and potentially sabotage your case with indecision. If many athletes in the bicycling and triathlon community recommend the experienced trial lawyer, hire him and take immediate action. “Speed kills” is a truism across many contexts. In the legal context, speed kills the insurance company lawyer tactics that are designed to deny, delay, and defend against your claim—all at your expense.
Hire a trained professional and win what’s rightfully yours.
Ride safe! Ride strong!
About the Law Firm of Richard L. Duquette
The Law Firm of Richard Duquette has recovered millions in damages for injured bicyclists since 1983. Attorney Duquette is an experienced bicyclist himself and has dedicated his practice to helping this community. He is experienced in all types of cases involving bicycle crashes, injuries, and other legal troubles.
Mr. Duquette serves a wide variety of bicyclists. Whether you prefer road cycling, mountain biking, track riding, Randonneuring, E-Bicycles, Handcycles, Century Rides, Triathlons, Duathlons, or Criterium, Mr. Duquette knows how to best serve your legal needs regardless of the type of bicyclist you are.
Mr. Duquette is an expert at maximizing, proving, and recovering damages.
For more information please visit the Law Firm of Richard Duquette.
The information in this article is for general information purposes only. The focus of this article is on California Law. You should contact an attorney in your state for case-specific advice, as details of the law and procedural requirements vary from state to state. Nothing in this article should be taken as legal advice for any individual case or situation. This information is not intended to create an attorney-client relationship; and the receipt, reading, listening, or viewing of this content shall not constitute an attorney-client relationship. Nothing in this article shall be construed as a warrant, promise, or guarantee about the outcome of your case or any other matter. This information may contain personal impressions or statements of opinion on a subject that do not apply in your case. Further, statements of law reflect the current state of the law at the time of writing and/or recording, and may not reflect subsequent changes in the law.
Image Copyright: Tsung-Lin Wu 1
