Every credible study that’s ever been done finds that you’ll net more after fees and costs in every kind of personal injury case when you have a lawyer represent you than you would without a lawyer.
In a motorcycle case it’s even more necessary to have an attorney because you always start out with a skeptical audience. Insurance companies and juries have many prejudices against motorcycles. Non-motorcycle riders believe that motorcycles are dangerous, and anyone who rides a motorcycle is therefore a dangerous rider. They always assume the motorcycle was speeding, they hate motorcycles that split lanes, and they hate motorcycles with loud exhausts, so you’re starting out with a lot to overcome. Representing yourself in when you face these issues is virtually impossible.
The second question, “How do you know that you have the right lawyer?” is a difficult one because there are so many attorneys who advertise themselves as motorcycle lawyers. Many of these lawyers are not motorcycle savvy, but are just interested in the serious injuries that motorcycle riders frequently have. A lot of those attorneys don’t own a motorcycle, have never ridden one and don’t spend most of their time handling motorcycle cases.
So, the first thing is to find an attorney who rides a motorcycle and spends most of his or her time handling motorcycle cases. Second, ask how long the attorney has been handling those cases. I have been doing these things for 40 years. I have handled countless motorcycle accidents. When I see a bike that has been in an accident, I immediately know more about how that accident happened than most attorneys will ever know.
For example, take a motorcycle that hit a car when the car cut it off. By looking at the motorcycle, I can make a reasonable estimate of the speed of the motorcycle at the time of impact. An attorney who doesn’t handle these cases regularly will never realize that the damage to the motorcycle can give you that information. If I’ve got a motorcycle that loses a seat in a rear-end collision, I know that motorcycle was hit hard enough in the back that either the length of the cable on the seat release was changed, or that the seat release was damaged, otherwise the seat would still be attached to the motorcycle.
There are many little things like this that you can only learn over time and with experience. Another example is a rider who flies through the air as he leaves the motorcycle. An attorney who really knows what he’s doing knows how to reconstruct the path of that rider, which tells a lot about the injuries that person has, and how they got them. So, it’s important to find an attorney who has all of those qualities.
Unfortunately, it is a word of mouth kind of thing because there is no index where you can look up and get this information.
Usually in a motorcycle accident, there is no choice. The rider is immediately taken by ambulance to a hospital. What you more often see is a rider who is treated for months and grows tired of their treatments. They feel as if they’ve gotten to a point where they aren’t going to see any more improvement and they start self-treating or just living with their injuries.
This is a problem because the insurance company cannot settle a case for any reasonable value unless they have information about the lasting long term effects of the injury. And, they look to the medical records pretty much exclusively in making that determination. So, if an injured rider stops seeing the doctor, or has huge gaps in his treatment, it seriously hurts the value of their case.
It’s very difficult to come up with a value for a case, but I can give you a very clear picture of how these cases are evaluated. People make the mistake of thinking that it’s all about how painful the injury is. But in our society, people aren’t that concerned with someone else’s pain. What they do relate to is the effect an injury has on someone’s daily activities, and they tend to look at four types of activities.
First, how the injury affects your daily life at home: cleaning, cooking getting dressed, and in extreme cases, even watching television, etc.
Second, how the injury affects you outside your home: gardening, painting, cleaning the garage, washing the car, things like that.
Third, is what I call the social category: going to a wedding, traveling, doing things with friends, going to the mall, softball league, bowling – all those types of activities.
And fourth is, of course, the most important: how does the injury affect you at work.
In every instance, they look at whether there are activities you simply can no longer do, whether you do them despite the pain, in an altered fashion, or whether you require assistance. Those are the most important parts of evaluating your case, because those factors influence juries the most.
Of course, medical treatment and the cost of treatment come into play. Wage loss and future wage loss is also taken into account. All of these things together add up to an estimate of what a jury might do if presented with your particular set of facts.
A jury normally has no experience evaluating personal injury cases, but they do look at cases in a very, very skeptical way and they require a lot of proof before they will accept anything. Both sides evaluate the case by looking at databases, using their experience, and coming up with (in their mind) an estimate of what the jury would do. That’s where the negotiating starts.
Every attorney who does this kind of work works on a similar basis and that involves taking a percentage of the recovery as their fee and reimbursement for the costs of the case, which the attorney advances. The reason for this is pretty obvious. Someone who has been in an accident and isn’t working is normally not in a position to start paying many, many hours of attorney’s fees in order to get a recovery on their case. So it has been tradition for many years that personal injury cases of all kinds, including motorcycle cases, are handled on what’s called a contingent fee. That means the attorney is paid a percentage of the final settlement.
In addition to the fee, there are costs for filing fees, investigation, deposition reporters, exhibits used at trial, etc. All that has to be paid for up front. The attorney advances those costs to the client and is paid back at the end of the case out of the recovery money. The attorney doesn’t make any money on those expenses, and there is no interest charged. Anything the attorney earns comes out of the percentage of the recovery that is the fee. Virtually every attorney works on this basis. It’s usually one-third of the settlement, and up to 40% after that, if the case goes to trial, for example. Attorneys like me who tend to file suit almost immediately know that it’s not reasonable to go to 40% at the filing point, so the 40% doesn’t come into play until much later in the case when it is set for mediation, arbitration or trial.
Once a case is set for mediation, arbitration or trial, a lot more time and money goes into the case because these are adversarial proceedings and require a lot of preparation.
A few lawyers advertise crazy fees, or quietly charge more. If an attorney is charging something that’s very, very different from the one-third to 40%, something is wrong. Some of these attorneys charge as much as 50% and on the other end are attorneys who advertise teaser rates where they will charge a very, very low rate if the case is settled in six weeks. This is not fair. Attorneys know that cases are almost never settled within six weeks, so it’s easy to offer those kinds of teaser rates.
If insurance companies wanted to put personal injury attorneys out of business, they could do it very quickly by valuing claims fairly and making prompt payments. In my experience, that happens very rarely. Insurance companies are in the business of delaying claims, denying claims and fighting claims and keeping the premium dollars invested, which is where they make tremendous amounts of money.
If you get into a motorcycle accident with someone who doesn’t have insurance, there are several options. The first and obvious option is to see whether you have uninsured motorist coverage on your own policy. Uninsured motorist coverage also gives you some protection if you are hit by someone who has a minimum policy and your uninsured motorist coverage is larger than their inadequate liability coverage. If you add up the number of people who have no insurance and the number of people who have very little insurance, it’s a large number.
Sometimes, neither of those things are available. A good attorney will look at alternative causes of the accident. For example, there may be a bad street design, or maybe the accident happened in an intersection and the lights weren’t working correctly. Maybe the accident happened at an entrance to a shopping center and the entrance was poorly designed. Sometimes a case can be saved by taking other avenues, but not always.
In states where the negligence of both parties is compared, it is possible to get compensated even though you were partially at fault for the accident. The way that works is the percentage of fault on each side is compared, and each side can recover their damages times the percentage of negligence of the other party. For example, if you are 20% liable for causing the accident, you can recover 80% of your damages from the other side. In practice, if your percentage of negligence gets to be substantially higher than 50%, juries tend to ignore the fine points and find that kind of a driver completely at fault for the accident, so there are limits on how the comparative fault system works.
The worst thing to do following a motorcycle accident is to act discourteously to the other driver or to the policeman investigating the accident. Behaving badly will never benefit you.
The second mistake people make following a motorcycle accident is talk too much. They will make a thoughtless statement to the investigating officer, or they will give a recorded statement to the insurance company and this creates problems that will last as long as the case is pending.
The third mistake is to start off trying to handle the case yourself. You will have created all kinds of problems by the time you get around to hiring an attorney.
It’s very common for motorcyclists to be the victims of prejudice by judges, juries and insurance companies. A good lawyer, who’s experienced in motorcycle accidents, can do things to minimize that prejudice, but it’s just a reality that makes it all the more important that your case is presented in the best manner possible by the best attorney.
It’s very difficult to overcome prejudice against motorcyclists who were not wearing a helmet in any case, and nearly impossible in a case involving a head injury. This is true even though the overwhelming number of head injuries do not involve a fractured skull, but rather involve the brain impacting the rough inside surfaces of the skull. Despite the fact that helmets are only limited protection against injury, the prejudice in favor of wearing a helmet is enormous.
Most people would say the worst motorcycle injury is death. I find that the hardest motorcycle injury to deal with is a serious brain injury because the prospects for the rider are so bleak and the injury is devastating in every facet of that person’s life. I much prefer to work on cases where the injury is a serious fracture because I know that even with a serious fracture, there is a good chance the rider will recover enough to live a reasonably normal life and, hopefully, even ride a motorcycle again.
There are many different kinds of insurance and insurance policies that you deal with in the course of a motorcycle accident. You may have medical payments insurance on the motorcycle, which will pay some small amount of your medical bills. Your regular health care provider will pay the bulk of your medical bills; your vehicle insurance may cover repairs to your motorcycle; the other side’s insurance may cover repairs to your motorcycle. The other driver’s liability coverage should pay the largest portion of your damages. If there is no insurance, or not enough insurance, on the other side, your uninsured and underinsured motorist coverage may come into play.
It’s very important that you have someone advising you who understands the interplay of all of these different insurance coverages because they must all be made to work together.
You could still have a case, but if it is truly just road rash, and if it’s minor, it’s not going to be much of a case. Of course, if there is scarring, the case becomes more significant because a scar is a permanent injury and, depending on where the scar is, it may affect the quality of your life. For example, if you have a facial scar, it may change your social interactions. But if all you truly have is a bit of road rash, it’s going to be difficult to make a significant case out of it.
The sooner you get to a lawyer after the accident, the better the lawyer is going to be able to improve the outcome you have from that accident. A lawyer who can get involved while the motorcycle is still available to be seen, while witnesses’ recollections are still fresh, and while it’s still possible to see marks on the roadway where the accident occurred, is in a much better position to help you than an attorney you call six months or a year after the accident. If you wait too long, it will be too late to do many of the things that will help you. Worse, if you wait too long, your case may be barred by the Statute of Limitations or a special claims requirement, such as when a governmental entity is involved.
In theory, any personal injury attorney can handle a motorcycle case but in practice, nothing could be further from the truth. That’s like saying any doctor can do brain surgery, but in fact, a skin doctor would be a poor choice of a brain surgeon. You really need, in a serious motorcycle case, to have a personal injury attorney who concentrates heavily on motorcycle accidents and has handled many, many of these cases. Motorcyclists suffer different types of injuries, and are injured in a different way than people who are sitting in a padded car with seatbelts and airbags. The operation of a motorcycle is very, very different from the operation of a car and the interaction of a motorcycle with a car or truck has very little in common with two cars or two trucks hitting each other.
There really isn’t an alternative to having an experienced attorney who has handled many, many motorcycle accidents with success.
It’s not uncommon following an accident involving serious injuries for someone to be unable to work for a long period of time. A significant percentage of people who are injured that severely will also find that they can no longer reasonably continue in the same occupation they were in before the accident. In that case, evidence has to be developed about what the job requirements are, which of those job requirements the individual can no longer perform, and what kinds of jobs the individual could do if they were able to find other employment.
A calculation then needs to be made as to the cost of retraining, if any, and the anticipated amount of time it will take to make a career change. Someone has to crunch the numbers and figure out what the overall loss is, given the individual’s life expectancy and how many working years they have left. It’s a very complicated process, but it is something that can be evaluated. If that number goes for many years into the future, it will be reduced to reflect the fact that a single lump payment made now will accrue interest or earnings.
The calculations are complicated and probably not appropriate for someone to attempt who is not an attorney and hasn’t made these calculations before.
The vast majority of motorcycle accidents that are not single-vehicle accidents are caused when someone in a car cuts off the motorcyclist. Usually, this occurs at an intersection where an oncoming car makes a left hand turn either into the path of a motorcycle, or into the motorcycle itself. Another common way accidents happen is when someone pulls out of a driveway or a side street. And the other way is when a car hits a motorcycle in the course of making a lane change.
The biggest misconception people have about motorcycle cases is that, because the injuries are typically great, an insurance company will be anxious or willing to settle the case quickly and without the use of an attorney. The opposite is true because the amount of money involved is typically larger than with an automobile accident. The insurance company has much more incentive to fight the claim and to delay payment while they keep the money invested and earning interest.
The second mistake people make after a motorcycle accident is thinking that they can obtain their own medical records, get their own medical reports, deal with negotiating liens from their medical care provider, get proof of their wage loss, get proof of their future wage loss and correctly present evidence about the significance of their injuries without an attorney. Just looking at the list, this is impossible for virtually everyone.
The third mistake people make is failing to understand the importance of documenting all of the damages and all the effects their injuries have had on all aspects of their life. An insurance company simply does not accept somebody’s statement that they are having problems after an accident. They want to look at medical records or other written documentation that effectively proves every element of the claim.
Crotch rockets are more at risk for accidents that result from the acceleration characteristics of a fast motorcycle or from a tendency to accelerate too quickly or make maneuvers at too high a speed. The chopper type of motorcycle is more at risk in accidents involving drinking, riding with too many in a group without correct safety practices, and accidents that are peculiar to riding a motorcycle in crowded traffic conditions, including the many events that tend to attract a lot of these riders.
Riding motorcycles can be done safely on any type of motorcycle, but you can only control your own riding. There are a lot of distracted and careless motorists out there who pose a risk to any motorcycle rider.
In the type of case that I handle, no one decides not to pursue their accident case. When you have significant injuries, unfortunately, there really is very little choice. Individuals facing multiple surgeries, are out of work for extended periods of time, have their lives turned upside down – now and in the future – really have no other options but to pursue the case. This can really be an unfortunate situation if it turns out that the person who caused the accident had either no insurance or inadequate insurance.
The main thing to concentrate on is whether you have found an attorney who understands how to handle a motorcycle case correctly. It’s important to work with him or her on an ongoing basis to make sure everything is documented in the correct way. Insurance companies not only need documentation, but they need the documentation in a form they recognize and can easily integrate into their evaluation system. This is the main benefit that an attorney can bring to the table, and it should be your focus in dealing with your attorney since it’s the most valuable part of the representation.