After the Accident: What To Do Immediately

By Richard Alexander

In twenty-five years of practice I have seen many people suffer serious injuries that were not their fault and then bungle an insurance claim or fail to take action on behalf of a child in a timely fashion, all to their later regret.

What follows is general advice that, if followed, will help anyone avoid common mistakes, but it is not legal advice. That can only come from an experienced lawyer who knows all the facts and the laws of your state.

Q. After an accident, what is the first thing I should do?

A. Immediately speak to an experienced trial lawyer to get specific advice.

Q. What will it cost?

A. Nothing. In 25 years of practice I have never charged anyone for providing advice in an emergency. If you need immediate help call 800.921.1776 or direct dial 408.289.1776.

Q. If I cannot reach a lawyer, what do I need to do?

A. Make a record and preserve the evidence.

Q. What's involved in "making a record?"

A. If you have been in a serious accident, chances are that someone has already made a record of what has happened to you. There already is a police report, an on-the-job worker's compensation report or the like. If your condition required medical care, hospital records will confirm your injuries.

If you were injured at home, report your injuries to your doctor or health clinic and obtain all appropriate medical treatment. Appropriate treatment is that care recommended by a doctor.

If you have developed food poisoning, in addition to seeking medical care, immediately report your suspicions to the restaurant or store and the county or city health department.

Never hesitate to "get checked out" even when you feel "O.K., but shaken up." Many times the onset of physical complaints begins 12 to 24 hours later. Maybe you did walk away from being rear-ended by a truck and only feel "shaken up" but tomorrow morning when you get out of bed it may be different.

See a doctor following the collision will insure a preliminary diagnosis and perhaps minimize the discomfort and future treatment you may need later.

Tell the doctor the complete truth and only the truth. Anyone who manufacturers symptoms and then makes a claim is guilty of fraud.

Follow the doctor's advice. Do not substitute your judgment for that of an experienced medical professional. If you do, it will be used against you whether you over-treat or under-treat.

Q. Is there anything special I should keep in mind when seeing my doctors?

A. When reporting to doctors, take extra care to identify specific complaints, take with you a list of all complaints and tell the complete truth.

If something does not feel "right" your doctor needs to have this information order to render an informed medical opinion.

Even though you feel it is "no big thing" now, a dry mouth, some light headache and a little dizziness, may be evidence of hyperventilation or something more serious. Anything that is out of the ordinary is a symptom and should be reported to assist your doctor in making an informed diagnosis.

For example, a patient who has very slight tingling in the fourth and fifth fingers and a minor crick in the neck, may not report the tingling sensation, which could be the sign of major disruption to a cervical disk. If that disk becomes a complete rupture that requires major surgery it will have been far better to have had the initial medical entry in order to show that the onset of the fracture to the outer wall of the disk was the initial injury, not picking up a bag of groceries three weeks later, as the insurance company doctor will argue to the jury.

Lastly, keep receipts of everything and maintain a calendar of post-accident events that will help you recall later the days you could not work, were unable to enjoy your leisure time or spent Saturday at the physical therapist.

No matter whether it is a personal injury claim or any action in which you are the plaintiff, keep a fully detailed record of the harm you suffered.

Q. What should I do to preserve the evidence?

A. First immediately have someone take physical custody of what ever was involved in causing your injury.

Never hesitate to buy wreckage and if anyone should have second thoughts about buying a wrecked Bronco, a Jeep that rolled or a vehicle that has a gas tank that failed, keep in mind that it is comparatively inexpensive to buy a wrecked car, for example, compared to the value of a successful product liability case and if worse comes to worse it can be sold, but once it is lost it is gone forever.

Once you gain ownership of the defective product, lock it up in a facility that you control.

Never assume that no one will want the wreckage of a destroyed automobile. In two cases against BMW alleging the gas tanks in models 1600 and 2002 were defective, both hulks mysteriously disappeared. In another case in which a four teenagers burned to death in a 1978 Dodge Ramcharger equipped with a plastic tank, an investigating service believed to have been retained by Chrysler Corporation appeared at a wrecking yard before the funerals and offered to buy the burned hulk.

In the case of BMW, investigators for the car manufacturer photographed the evidence six months before the injured plaintiff retained his own attorney. Major manufacturers carefully read newspapers and whenever possible secure evidence to deny plaintiffs the ability to pursue claims.

Q. What if the evidence is owned by someone else, such as a rental car, and it cannot be bought?

A. If the evidence cannot be bought, at a minimum, put everyone on notice by certified mail, including owners, tow operators, wrecking yards, police impounds, and the like, that they must take every step to preserve important evidence and the failure to do so will subject them to being sued for allowing evidence to be destroyed.

Q. What should I do if the owner is not cooperative?

A. When evidence is in the possession of a third party or one of the anticipated defendants who is threatening to modify or destroy it, hire an experienced lawyer to immediately get a judge to issue a temporary restraining order and a preliminary injunction to avoid alterations or destructive testing. The temporary restraining order should be carefully drafted so that anyone receiving notice of the order and in control of the article will be required to preserve the evidence or deliver it to the possession of a neutral person and to initiate preventive measures against damage in transit.

Q. If the police have taken pictures, do I need to have more taken?

A. Absolutely. Always take multiple rolls of film of the accident location, crashed vehicles, approaches to the scene and of the person who suffered the injury.

Q. What type of camera is best?

A. A 35 mm with a 50-55 mm lens and an 80-100 mm lens to get photographs of specific details, but if all that is available is a disposable camera, use it.

Q. How can I take the best pictures?

A. Plan on taking three times as many photographs as you think you might need. Take shots from multiple angles and locations.

Use the parallax approach when taking photos. Position your feet. Lean left as far as you can, frame the shot and shoot. Without moving your feet, lean right as far as you can, frame the shot and shoot. You have created a sufficient angle with each set of photos to allow a professional to reconstruct actual distances, should that information be needed in the future.

Q. How long can I wait to take photos of an automobile crash location?

A. You cannot wait at all, especially when trying to capture impending skids. Tires do not immediately lock-up and change from rolling tires to skidding tires. During the braking process the tire begins to leave an imprint on the roadway BEFORE skidding. These marks are impending skids and are faint marks that can be seen on the roadway for only 24 to 48 hours after a collision. An impending skid and a skid mark when taken together gives a very accurate record of the actual speed of a car before a brake application. Lay a yardstick or ruler next to impending skid marks so an accident reconstructionist can readily compute actual distances based on the photographs.

Q. How do I photograph an automobile crash scene?

A. Try and shoot at the same general time as the original collision. Plan on shooting a series of photos showing what each driver saw as they approached the point of impact. ALWAYS HAVE SOMEONE WITH YOU TO WATCH FOR TRAFFIC. Take distant and close up photographs from every point on the compass. When in doubt, take another set. You cannot take too many photographs of the aftermath of a collision, explosion, fire or other loss. Remember that all evidence must be secured immediately.

Q. What do I do if I find debris at a crash scene?

A. Photograph it in place, both up close and from a distance. Make sure the photographs allow you to specifically identify the location where it was found. Once the photographs are taken, take charge of the evidence, transport it to a safe storage location and make a note of the time you secured it at the scene and the time you put it into storage. This is what police do all the time. It's called booking the evidence.

Failure to secure evidence at the scene can be a critical mistake. In once case, relatives visiting the scene of a rollover in which the driver was ejected, found the driver's door still in the median. They did not want the driver's wife and parents to suffer the anguish of seeing the door at the crash site, so they picked up the door and took it to a dump. Several months later, when the victim's spouse hired an attorney to determine the cause of seatbelt and door latch failure, the truth was learned.

Q. Any special suggestions for photographing a car?

A. Be careful not to alter anything and keep other people out of the photograph. Begin at one one of the car and start at a distance where the complete vehicle fills the viewfinder. Move around the vehicle and take photos from the N, NE, E, SE, S, SW, W, and NW. Next make another swing around the vehicle, but this time take close up views of the exterior that will identify collision points, paint transfers, structural crush, ripples in sheet metal, etc. Once this is completed, photograph the complete interior. Look closely for interior impact damage. If the driver's head struck the windshield frame because an airbag did not open, look for the indentation in the frame caused by the driver's skull.

Q. What other pictures should be taken?

A. Verify the victim's condition in the hospital. Keep others out of the photograph and remove anything that distracts from the person being photographed, such as balloons, etc. Take photos over time that show the progression of treatment, special medical equipment and healing of scars, bruises, etc.

In the case of burn victims, a videotape of the multiple washing of burns with sound captures the agony that is suffered.

Q. Anything special if the injury was caused by a household product?

A. Let no one destroy, throw away, or leave behind anything that is part and parcel of the any product. Photograph the location where evidence is found and then remove it for safe storage.

Always preserve written materials that came with a product: packaging, inserts, manuals, warranties and similar written materials.

Immediately buy an identical product, preferably from the same retailer. In a case involving a small chain saw that jammed on full throttle, an immediate purchase resulted in a saw identical to the injury causing saw which was discontinued by the manufacturer in several months. The new re-designed saw had a protective slide over the trigger housing to prevent oil and saw dust from clogging the trigger mechanism.

Q. How much time do I have to take legal action?

A. Less than you would imagine.

Every state has statutes of limitations and procedural requirements that place deadlines on when you can file a lawsuit.

Statutes of limitations differ from state to state and depend also upon the nature of the claim.

In California a claim for personal injury or wrongful death must be filed within two years of injury or death. In a few limited cases the law allows an individual to file a lawsuit later than two years if they did not incur an injury until years after a wrongful act or did not discover they were injured until years later. This is referred to in the law as "delayed discovery" and occurs most commonly in serious cancer cases where the victim used a carcinogenic product 20 years ago, but only was recently diagnosed.

There is a major exception to this rule. If an injury or death is caused by a governmental entity [ for example: city, county, CALTRANS, State of California, irrigation district, fire district, etc.] a written claim must be filed with the city or county clerk within six months of the injury or death and following rejection of the claim (45 days after filing if the public entity takes no action, otherwise the date of actual rejection), you have only six months thereafter to file a formal legal complaint with the appropriate court.

Q. How long does a child have to make a claim?

A. In California, if the wrongdoer is a public entity or government, the child's parents must make a claim within six months. If the wrongdoer is not a public entity, the child has one year to file suit following his/her 18th birthday. In cases of sexual abuse by a family member, a child has until age 26 to file suit and in bona fide cases of delayed discovery, even longer, although there are many problems in proving delayed discovery in sexual abuse cases.

Statutes of limitations differ depending upon the nature of the lawsuit or claim. In cases of breach of an oral contract, California allows two years to file suit and up to four years for breach of written contract. Fraud has a three year statute. In any action against a doctor based on professional negligence, a Complaint must be filed with the appropriate court within three years after the date of injury or within one year after your discovery, or through the use of reasonable diligence should have discovered your injury, whichever occurs first.

Other states differ significantly and these rules are different from state to state. The statutes of limitations which apply to your various causes of action may differ significantly in timing, and in some cases it can be difficult to readily calculate when the statute begins to run.

Whatever the time period which applies to a wrongdoer, however, the effect of the Statute of Limitations is the same in each case: in the event no Administrative Claim or Complaint has been filed on your behalf within the requisite time period, your action will be completely barred. In other words, even though your case may be completely meritorious, if you file one day after the time limit allowed by the Legislature, you lose, forever.

Q. Why is it so complicated?

A. Do not blame lawyers for these rules. The limitations are called statutes of limitations because they are laws adopted by state legislatures. Insurance companies heavily influence the time limits and prefer short statutes of limitations in order to more quickly determine if a given book of business is profitable. California has the most antiquated, limited, anti-victim, pro-insurance company/corporate statutes of any state. Most states have a two year statute for injury cases and some states allow up to four years. California has a two year statute.

Q. In cases of sexual abuse or rape, are their any special considerations?

A. Make an immediate report to the police. Victims who delay reporting have great difficulty successfully asserting later claims. If you are interested in a full discussion of sexual assault cases, please read my article on this website entitled: Survivors of Sexual Assault.

Q. What do I do when the insurance company for the other side calls me?

A. Be polite, but decline to talk. Insurance companies' claims adjusters are professional negotiators, with extensive experience in intimidation, "hassling," and using every psychological technique to maneuver a claimant into settling for the lowest possible dollar, including discouraging people from using the professional services of a lawyer.

Never violate this basic rule: never give an oral statement to the other sides insurance company. If you do, you will regret it.

Claims adjusters are from "central casting." They are hired because they "sound good" over the telephone and they are well trained by company lawyers to ask questions in a manner designed to hurt you and help them.

You cannot beat an expert at their game. Do not try it. Simply say "thank you for calling but I am not prepared to discuss this matter with you at at this time and would prefer all communications by mail."

Q. I have not suffered any serious injuries and I now feel fine, how do I negotiate the settlement of my case?

A. Just like you would negotiate the sale of anything else.

First, determine your settlement goal based on your total expenses and what you have to go through because of the other person's negligence.

Anyone who negotiates directly with a carrier probably will not be hiring a lawyer but keep the threat alive. While this sounds like an ad for lawyers, the truth is that studies have shown that experienced lawyers can negotiated settlements that are multiples of what individual claimants can negotiate for themselves. If you have suffered a serious injury, always hire an experienced trial lawyer to represent your interests.

To successfully negotiate a claim with an insurance company the basic rules of negotiation MUST be followed.

First, set a realistic goal before you begin negotiating. This is critical. Do not begin a negotiation until you are absolutely sure that you know the full extent of your injuries and damages. If the damage has not run its course or if there is a chance of future damage yet to unfold, do not begin a negotiation. It is too early.

Second, just because an insurance adjuster calls and talks does not mean you have to talk. Do not get into a discussion, no matter how tempted you may be to do so. Use the occasion to listen and when its over say: "I will think about it and get back to you."

Three, never bid against yourself or always negotiate in turn. If you make a "demand' [an offer to settle by a claimant], then wait until the carrier makes an "offer." In other words don't make a demand for $15,000 at the beginning of a conversation and then at the end tell the adjuster you will take $10,000 today. All that you will have done is to PROVE to the adjuster that you are a greenhorn that can be had for much lower a price. Make your demand and then wait for the carrier to make an offer.

Fourth, take your time. When you receive an offer, think about it. Do not respond immediately. Claims adjusters know that if they can keep a claimant negotiating with the adjuster then there is a high probability of a successful settlement in favor of the insurance company. Do not expect to settle your case in one or two calls. Give the process time. "No good wine before its time" also applies to negotiating with carriers. Once you receive an offer tell the adjuster you will "think about it."

Fifth, do not listen to anything but the number. Insurance company adjusters take courses written by psychologists to use words and approaches that will give them the upper hand. They may sound nice on the phone, but these folks are professionals who eat claimants for breakfast. No matter what they say, ignore the words. The only thing that counts is the number. Once you hear the number end the conversation: "I will think about it." Then go think about it before calling back with your responsive demand.

Sixth, carriers want to save litigation expenses. You may obtain the best offer in the 30 to 60 days before the statute of limitations runs out on your claim, but if you cannot bring your claim to a final agreement before the statute runs, you will need to have a lawyer file a lawsuit for you to protect your right to collect the damages you have suffered.

Q. How do I find a lawyer to do the best job for me?

A. Read my article on "How to Hire the 'Right' Lawyer" on this website. Check the lawyer's record, types of cases they have tried, and references. Only hire a lawyer rated "AV" by Martindale-Hubbell [available in all libraries] and one with special experience in maximizing recoveries. All good lawyers keep a professional resume commonly referred to as a curriculum vitae, or "c.v.," that contains a list of accomplishments. To see a c.v. of an experienced lawyer who has substantial trial experience open http://www.alexanderinjury.com.

Q. Do all lawyers charge the same?

A. Almost. Contingency fees of one-third to settle and 40% to try are very common, BUT how it is computed is significantly different. Read my article on this site on "Understanding the Fee Agreement."

© Richard Alexander, 1997-2007.

Richard Alexander is a specialist in personal injury litigation with 30 years in-depth experience. Emphasizing working relationships with clients has led to an exceptional record of success. He has served as a member of the Board of Governors of The State Bar of California, President of the Santa Clara County Bar Association and the Board of Governors of Consumer Attorneys of California. He is a founding member of the National Association of Consumer Advocates, and heads Alexander Hawes, LLP.

Alexander Hawes, LLP is a California law firm that specializes in personal injury, wrongful death, and financial losses caused by negligence, defective products, toxic chemicals, corporate misconduct or insurance fraud on behalf of consumers, small investors, injured workers and small businesses. In addition to individual cases the firm prosecutes class actions for large groups of individuals who have suffered financial loss as a result of corporate fraud, defective consumer products, and environmental pollution. The firm holds Martindale-Hubbell's highest rating and is recognized in the List of Preeminent Law Firms in the U. S.

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