General questions about claim process & expenses of suit

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Latest post Thu, Sep 8 2016 11:43 AM by Taxagent. 37 replies.
  • Tue, Mar 22 2016 3:16 PM

    • DanWard
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    General questions about claim process & expenses of suit

    When an attorney speaks of the expenses to file suit what are those expenses and how much? They should already have the medical records and located near the court. Expenses seem minimal.

    It seems the lawyer for the insurance company would have far greater expenses due to their location and lack of medical records. However they should or might have an in house lawyer being a large company = ?

    ----------------------------------------

    When should the demand letter be sent if the deadline to file suit is say 3 years. It was suggested it needed to be sent 6 months before the deadline. Wouldn't there be a greater chance of a settlement if the demand letter was sent before 6 months left or do settlements not take anywhere close to 6 months. With both sides being experienced they should have a good idea of what the claim might be worth before the demand letter is even sent.

    Can a settlement be reached or suit filed if the patient has ongoing medical issues and has not been released by the doctor. If the release must be done first what happens. Does the patient ask to be released?

    Since it seems that both sides want to avoid a suit how does this mutual desire affect the settlement talks. Legal fee goes from 33 to 40% if there is a suit so does that extra 7% cover the legal fees for the injured?

    Quit a few questions and I did not use a ? on all of them. Thanks.

  • Tue, Mar 22 2016 8:27 PM In reply to

    Re: General questions about claim process & expenses of suit

    The expenses, aside from the cost of the attorney, include the filing fee; fee for service of the summons/complaint; fees for discovery, including deposing the defendant doctor and any other witnesses and getting any necessary records including medical records, that are needed; expert witness fees (and experts are not cheap); travel expenses (and not all lawyers have offices right next to the courthouse); copy fees, administrative expenses, and various other stuff. 

    The lawsuit may be filed before all the treatment for the injured person is done, and indeed the suit might have to be filed before that to ensure that the statute of limitations is met. 

    Settlement can be reached at any time, even after filing the lawsuit.

    How quickly the parties settle (if at all) depends on a lot of factors, including how closely they each come in their evaluation of the merits of the case and what the damages are. 

     

  • Wed, Mar 23 2016 8:16 AM In reply to

    • DanWard
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    Re: General questions about claim process & expenses of suit

    Taxagent:

    The expenses, aside from the cost of the attorney, include the filing fee; fee for service of the summons/complaint; fees for discovery, including deposing the defendant doctor and any other witnesses and getting any necessary records including medical records, that are needed; expert witness fees (and experts are not cheap); travel expenses (and not all lawyers have offices right next to the courthouse); copy fees, administrative expenses, and various other stuff. 

    The lawsuit may be filed before all the treatment for the injured person is done, and indeed the suit might have to be filed before that to ensure that the statute of limitations is met. 

    Settlement can be reached at any time, even after filing the lawsuit. 

    Can you give some approximate total for the expenses to go to court? The legal fee jumps from 33% to 40%. I'm not sure how much of the extra 7% (if any) might go to the "other" expenses.

    Can the lawsuit get to court and be completed and over and done even though the injured has not been released by treating physician.

     

  • Wed, Mar 23 2016 10:38 AM In reply to

    Re: General questions about claim process & expenses of suit

    DanWard:
    When an attorney speaks of the expenses to file suit what are those expenses and how much?

    Since you're posting on an auto accident board, I'll frame my answer accordingly.  Almost always, the court will charge a filing fee.  Depending on where the suit is filed, that could be less than $100 or nearly $500 (I don't think I've seen any civil court with a filing fee for an ordinary civil lawsuit in excess of $500).  Then you have the cost to serve the summons and complaint on the defendants:  generally around $50 on up, per defendant, depending on how difficult it is to find/serve each defendant.  Some courts charge for pretrial motion.  I think the highest fee I've seen for that is $100.  Depositions cost upwards of $1-2k for the party noticing the deposition.  Other parties may buy a transcrips for a few hundred dollars.  Probably the biggest expense is for expert witnesses.  The range of expert witness fees is huge, but my guess is that it'll be a minimum of $2,500 and could easily exceed $10k.  Of course, it's possible to settle before depositions and experts are needed.  On top of that, attorneys commonly charge for copies and other internal services of that sort.

     

    DanWard:
    They should already have the medical records and located near the court.

    It's not clear who "they" are (especially given your reference to "an attorney").  Any attorney filing a personal injury lawsuit should obtain the client's medical records in advance.  Maybe the client provides them; maybe the attorney gets them directly from the doctor(s).  Either way, the client is going to pay for copies.  The lawyer's proximity to the court is of relatively little relevance unless the lawyer bills the client for mileage.

     

    DanWard:
    It seems the lawyer for the insurance company would have far greater expenses due to their location and lack of medical records. However they should or might have an in house lawyer being a large company = ?

    I'm not sure who "they" are.  All insurance companies have in-house lawyers.  However, very few insurance companies have in-house lawyers who serve as counsel of record in litigation matters.  Most use outside counsel for that, and they don't hire lawyers who aren't reasonably close to the courts.

     

    DanWard:
    When should the demand letter be sent if the deadline to file suit is say 3 years.

    When the facts dictate it is appropriate to do so.  Among other things, damages should be reasonably clear and fixed.

     

    DanWard:
    It was suggested it needed to be sent 6 months before the deadline.

    Suggested by whom?  And why on Earth would one want to wait so long (unless the facts are so unclear or damages so uncertain until then).

     

    DanWard:
    Wouldn't there be a greater chance of a settlement if the demand letter was sent before 6 months left or do settlements not take anywhere close to 6 months.

    The "chances of settlement" have little, if anything, to do with how soon before the SOL expires a demand letter is sent.  The "chances of settlement" are far more dependent on the merits of the claim and how much or how little the plaintiff inflates his/her non-economic damages.

     

    DanWard:
    Can a settlement be reached or suit filed if the patient has ongoing medical issues and has not been released by the doctor.

    A settlement can be reached at any time.  Settling while treatment is still ongoing is often not the best plan because the plaintiff risks being undercompensated.

     

    DanWard:
    Since it seems that both sides want to avoid a suit how does this mutual desire affect the settlement talks.

    If both sides want to settle, it typically makes it more likely that they will settle.

     

    DanWard:
    Legal fee goes from 33 to 40% if there is a suit so does that extra 7% cover the legal fees for the injured?

    I don't understand the question.  Obviously, the plaintiff's lawyer will do additional work if a lawsuit is filed.  Where the plaintiff's lawyer takes a higher percentage after suit is filed, the higher percentage recognizes this additional work.

  • Wed, Mar 23 2016 10:45 AM In reply to

    Re: General questions about claim process & expenses of suit

    DanWard:
    Can you give some approximate total for the expenses to go to court? The legal fee jumps from 33% to 40%. I'm not sure how much of the extra 7% (if any) might go to the "other" expenses.

    I'm not sure if we're talking in generalities or if you want to discuss a particular lawyer-client retainer agreement.  If the latter, you'll have to tell us all of the relevant provisions.  If the former, all anyone can tell you is what I just told you in my response to your original post (so I won't repeat it here).  To some extent, the 1/3 or 40% contingent fee is completely arbitrary, and I doubt any lawyers undertake extensive financial analysis to determine an "appropriate" percentage based on their overhead and other factors.  It's also important to note that the contingent fee percentage may or may not include hard costs (e.g., filing fee, depositions, etc.).

     

    DanWard:
    Can the lawsuit get to court and be completed and over and done even though the injured has not been released by treating physician.

    Of course it can.  Whether that's a good idea depends on the relevant facts.

  • Wed, Mar 23 2016 11:04 AM In reply to

    Re: General questions about claim process & expenses of suit

    DanWard:
    When should the demand letter be sent

    When the claimant is fully recovered or has reached maximum medical improvement and the claim can be quantified.

    DanWard:
    Wouldn't there be a greater chance of a settlement if the demand letter was sent before 6 months left

    No.

    DanWard:
    do settlements not take anywhere close to 6 months

    Settlements can take as little as a 5 minute phone conversation immediately after receipt of the demand letter. Or, it could take longer. There's no way to predict.

    DanWard:
    Can a settlement be reached or suit filed if the patient has ongoing medical issues and has not been released by the doctor

    Yes.

    It's done all the time.

    DanWard:
    Since it seems that both sides want to avoid a suit how does this mutual desire affect the settlement talks.

    The same way people negotiate to buy cars or houses or anything else. You know, a lot of this stuff about settlement value has been discussed in your other thread:

    http://community.lawyers.com/forums/t/168643.aspx

    There's really nothing for you to gain by rehashing the same questions over and over again. Eventually people will get tired of responding.

    DanWard:
    Legal fee goes from 33 to 40% if there is a suit so does that extra 7% cover the legal fees for the injured?

    If you mean, the lawyer's expenses - no.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Wed, Mar 23 2016 12:24 PM In reply to

    • DanWard
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    Re: General questions about claim process & expenses of suit

    ca19lawyer2:

    It's not clear who "they" are (especially given your reference to "an attorney").  Any attorney filing a personal injury lawsuit should obtain the client's medical records in advance.  Maybe the client provides them; maybe the attorney gets them directly from the doctor(s).

     

    A settlement can be reached at any time.  Settling while treatment is still ongoing is often not the best plan because the plaintiff risks being undercompensated.

     

    They is the lawyer referenced in the previous sentence. We got some medical records and paid for them and the legal firm said they could only use medical records that "they" acquire.

    In general, and not specific to any one accident, an injured person could be under doctor's care for years and may have medical cost for an indefinite period of time. "Maximum medical improvement" may not occur by their state's deadline. Those costs should have a way to be calculated despite some state's deadline.

    -----------------------------------------

    I guess those lawyers who want to withdraw do so many weeks ahead of time. Otherwise a plaintiff could re-consider a previously rejected offer in the few days before the hearing.

     

  • Wed, Mar 23 2016 1:06 PM In reply to

    Re: General questions about claim process & expenses of suit

    DanWard:
    In general, and not specific to any one accident, an injured person could be under doctor's care for years and may have medical cost for an indefinite period of time. "Maximum medical improvement" may not occur by their state's deadline. Those costs should have a way to be calculated despite some state's deadline.

    Future medical costs that an expert attests that the plaintiff will require based upon his current condition and plan of treatment certainly can be computed and added to the judgment. These future costs don’t have to known exactly, but do need to be sufficiently certain that one can say the patient is likely to incur them.

  • Wed, Mar 23 2016 2:40 PM In reply to

    Re: General questions about claim process & expenses of suit

    Taxagent:

    Future medical costs that an expert attests that the plaintiff will require based upon his current condition and plan of treatment certainly can be computed and added to the judgment. These future costs don’t have to known exactly, but do need to be sufficiently certain that one can say the patient is likely to incur them.

    I fully agree.

    In every state but two (I think), the statute of limitations for personal injury cases is at least two years.  If it has been two (or more) years since the indcident that caused the injury, then you're almost certainly dealing with a very serious injury.  In such a case, the plaintiff's lawyer may retain a life care planner to work with the plaintiff's treating doctors to create a life care plan, which will outline the expected future treatment and the present cost of the treatment.  The life care plan will then be analyzed by an economist to the present value of the future treatment based on expected inflation and investment rates.

  • Wed, Mar 23 2016 8:17 PM In reply to

    Re: General questions about claim process & expenses of suit

    DanWard:
    They is the lawyer referenced in the previous sentence. We got some medical records and paid for them and the legal firm said they could only use medical records that "they" acquire.

    It's standard procedure for an attorney to get medical records directly from the patient's providers to avoid the possibility of the records being tampered with or selectively provided.

     

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Thu, May 12 2016 2:43 PM In reply to

    • DanWard
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    Re: General questions about claim process & expenses of suit

    A neighbor had a worker's compensation injury a few years ago and she told me that the doctor gave a disability rating in the form of a percentage. Is that the way the treating physician estimates future medical for someone injured in an auto accident?  If not how is it estimated.

    Does the estimate of future medical just become a part of the medical expenses or is it considered in some other way? 

     

  • Fri, May 13 2016 9:15 PM In reply to

    Re: General questions about claim process & expenses of suit

    DanWard:
    A neighbor had a worker's compensation injury a few years ago and she told me that the doctor gave a disability rating in the form of a percentage. Is that the way the treating physician estimates future medical for someone injured in an auto accident?  If not how is it estimated.

    A disability rating and future medical expenses are two different things. A claimant can have one or the other or both.

    Yes, a disability rating could be based on a percentage or it could be based on the loss of use of a part of a body.

    As usualy, you are asking about generalities that might or might not have anything to do with your own claim.

    DanWard:
    Does the estimate of future medical just become a part of the medical expenses or is it considered in some other way? 

    A demand for compensation (or an award of compensation) is generally divided into categories with an amount for each category. Past medical expenses and future medical expenses are generally listed as two separate amounts.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Mon, May 16 2016 10:43 AM In reply to

    Re: General questions about claim process & expenses of suit

    DanWard:
    A neighbor had a worker's compensation injury a few years ago and she told me that the doctor gave a disability rating in the form of a percentage. Is that the way the treating physician estimates future medical for someone injured in an auto accident?

    Treating physicians do not "estimate[] future medical."  Generally speaking, doctors know very little about the cost of the care they provide and hire staffs to deal with billing.  As I said elsewhere in this thread, in cases involving serious injuries and defendants with the means to compensate the injured person, a life care planner will work with the plaintiff's medical providers to come up with a treatment plan and estimate costs.  An economist will typically also be used to reduce the future costs to present value.

     

    DanWard:
    Does the estimate of future medical just become a part of the medical expenses or is it considered in some other way?

    Not really sure what this question means.

  • Mon, May 16 2016 12:05 PM In reply to

    Re: General questions about claim process & expenses of suit

    DanWard:
    A neighbor had a worker's compensation injury a few years ago and she told me that the doctor gave a disability rating in the form of a percentage. Is that the way the treating physician estimates future medical for someone injured in an auto accident?  If not how is it estimated.

    Worker’s comp cases are very different from other personal injury situations because there is no fault determination and the compensation scheme is different. Don't look to worker's comp cases for help in figuring anything on your auto accident claim.

    DanWard:
    Does the estimate of future medical just become a part of the medical expenses or is it considered in some other way? 

    You'd need experts to testify as to what future medical care you would need, what it will cost, and what the present value of that future cost would be. Typically you'd need at least two experts to do this: a medical expert to opine on the care you need and an economist or other finance specialist who can provide the computations needed to show what that would cost and what that would translate to in present day dollars.

  • Thu, Jun 2 2016 8:36 AM In reply to

    • DanWard
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    Re: General questions about claim process & expenses of suit

    adjuster jack:

    As usualy, you are asking about generalities that might or might not have anything to do with your own claim.

    If they may or may not apply with own claim, then where do we ask them?

    ---------------

    Where to ask questions where the answers might benefit other people.

    Every question we ask could apply to us that is why we ask.

     

     

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