CapTran is a litigation financial services company that makes working capital loan to law firms as well as pre-settlement advances to plaintiff. Financially stressed plaintiffs come to us for financial help in order to be able to sustain themselves while waiting for their case to resolve. We are not a law firm and we offer no legal advice. However, we do have a great deal of experience investing in personal injury cases. The observations and comments in this article are a result of those experiences.

One of the most common questions we are asked is "Why is my case taking so long?" Many clients get angry as the time between the injury and the claim settlement gets longer and longer. Plaintiffs often vent their anger at their attorneys for the delay when, in most cases, it is not their fault. We constantly hear clients complain that their attorney is "not doing anything" or "my attorney won't tell me anything".

CapTran has invested in thousands of personal injury cases and has dealt with literally thousands of personal injury attorneys and their staffs. Our experience tells us that there are many reasons for the delay and in order to determine whether or not your case is going unusually slow it is important to understand how the claim process works.

First and foremost is the fact that insurance companies are in no hurry to settle. The longer they can hang on to the money, the more investment income they can earn. While many states have bad faith insurance laws that require insurance companies to handle claims in good faith, many continue to move as slowly as they think the law will allow. Certain insurance companies are especially slow to deal with and some have even been successfully sued under the bad faith insurance laws. Most cases settle without a lawsuit.

Notice we say "claim process" and not lawsuit. That is because year in and year out, most personal injury claims are settled without a lawsuit. For example, insurance industry survey data reveals that 95%-96% of all motor vehicle bodily injury claims are settled without a lawsuit ever being filed. Attorneys only file lawsuits as a last resort if the claim cannot be settled through negotiation with the tortfeasor's (defendant's) insurance carrier.

Should I hire an attorney or handle the claim myself? If what you just read about settlement data has you thinking that, if it is so easy to settle a case, maybe you should handle the claim yourself, think again. Study after study shows that claims paid to claimants without legal representation are lower than those with legal counsel.

The claims process

Your attorney will notify the defendant's insurance company that counsel is representing you. The insurance company will assign an adjuster to work on your claim. This is the person with whom your attorney will negotiate to secure the best settlement possible.

There are two parts to the claims process - liability and damages.

LIABILITY

The first part of the claims process is establishing liability. If there is any question of liability the claims process will come to a screeching halt.

Plaintiffs always seem to feel that the question of liability is cut and dried since a police officer may have arrived at the scene and issued a traffic ticket to the defendant. However, it may not be that simple:

The defendant may have subsequently challenged the ticket and won.

The defendant may have a valid excuse such as an emergency situation that made the accident unavoidable. In many states, such 'emergency" actions are valid defenses.

The defendant may be a governmental entity with sovereign immunity meaning they can't be sued.

You may be considered partly (not mostly) responsible and in some states such "contributory" negligence may prevent you from suing.

Your own history and conduct will have an impact on the insurance adjuster's view of liability. Some of the things that will make an adjuster question liability are:

1. If you went to the emergency room and the medical report reveals drugs or alcohol present in your bloodstream. 2. If you have a prior criminal record.

3. Previous injuries. If you have had a previous injury the adjuster may question if the injury is really a result of the previous accident or condition rather than the current accident.

4. Subsequent injuries. If you have a subsequent injury resulting in another insurance claim, the adjuster will begin to wonder if you are a scam artist. At the very least, you will have two insurance companies claiming that your injuries were the result of the other driver's negligence.

While we find that in most cases insurance carriers do not challenge liability without good reason, we cannot emphasize too strongly that only a qualified personal injury attorney can adequately represent you on liability questions.

DAMAGES

Generally, the most time consuming issue is the question of damages. Since your physical injuries are most likely the largest component of your claim value, your attorney must know the answers to the following questions:

1. What were your injuries?

2. What treatment did you receive?

3. What were your medical expenses?

4. Have you stopped being treated and have you reached what is called maximum medical improvement (MMI)? MMI means that additional treatment will not make you any better.

I t is important for you to understand that while you are still being treated your attorney can do very little if anything to move your case along. Why? Until your condition has been fully treated and you have reached MMI, your attorney has no way of determining how much to ask for!

To help speed your things along, make sure that you do the following:

Be diligent in your medical treatment.

Make sure that your attorney receives proper documentation from your medical providers.

Ask your attorney if there is anything further that you need to provide.

When you stop treating ask your attorney when a demand letter will be sent to the insurance company.

DEMAND LETTER

When your attorney is sure that you have reached MMI and that all facts pertinent to your claim are known, a "demand letter" will be sent to the insurance adjuster. The demand letter will contain a recitation of the facts of the accident, theory of liability and demand for payment for the damages you have suffered.

We have seen all kinds of demand letters. Some attorneys treat demand letters like simple business documents and others seem to see them as an art form offering the chance to wax poetically about the grievous nature of your injuries. Insurance adjusters see thousands of demand letters and are expert at plowing through the verbiage to get at the real issues. It is important to ask your attorney for a copy of the demand letter so that you can be sure that your claim is complete.

Be diligent and patient

Once you are satisfied that you have finished medical treatment (and are at MMI) and your attorney has submitted an accurate demand letter, you must be patient and diligent.

If there are no liability issues and your claim does not have the appearance of fraud or buildup, your claim will be processed by the insurance company's adjuster. Time really starts now. All of the time up to this point means nothing. Be diligent in checking with your attorney to see if the insurance company has responded as well as to make sure that there are no issues that have arisen of which you should be ware.

If you have reached this point, be patient. Your attorney wants the same thing you do; to have the case settled to your satisfaction and get paid.

By Wayne C Walker, President of Capital Transaction Group Inc. a leader in litigation financial services www.captran.com.

This information is opinion and not intended to be legal advice. Readers should not act on this information without seeking the advice of a competent attorney. 2003 CapTran