FROM THE DESK OF GERALD L. MARCUS

THE ANATOMY OF A PERSONAL INJURY CASE

INTRODUCTION

Personal injury claims have become extremely sophisticated over the past 30 years or so. What I=ve heard, used to be a simple fender bender whiplash case worth approximately three times the medical bills has developed into complex medi-legal litigated cases where you must fight to prove each and every element of your claim and component of the injuries, damages, or harm you suffered.

Being the innocent injured victim of a car accident no longer guarantees, or even remotely assures, that you will be treated fairly and adequately compensated by the insurance claims industry. And to the contrary, quite frankly, it is my experience that it is much more likely that you will be treated unfairly, unreasonably, and inadequately compensated, if at all, by the insurance claims industry in your average ordinary run of the mil fender bender type of accident than ever before.

I offer this analysis based on my 30 years of continuous experience as a personal injury attorney limiting my practice to representing the interests of innocent injured victims against the interests of the insurance claims industry. I have represented more than 7,000 clients. I work exclusively on a contingency fee basis, i.e., no recovery, no fee. I advance all costs on behalf of my client to prosecute the case and I fight for my clients every single day. And I love what I do. I believe that one of the reasons I have such a passion for fighting for my clients each and every day, and putting my money where not only my mouth is but where my clients= mouths are, is because I have truly come to understand the insurance industry claims process and realize how heartless, mean-spirited, uncompassionate and untruthful it really is.

The bottom line is, if I believe my client was hurt in an accident and somebody else was negligent and caused the injury, and if they were insured, I will do everything within my power to fight for that person and to put them on the same level playing field as the insurance industry in order to obtain full and complete as well as fair and adequate compensation.

The insurance industry, on the other hand (bottom line), will do everything within its power to not pay the claim. They will lie! They will deny! They will delay! They will make false promises! They will minimize! They will dispute! They will threaten! They will do absolutely everything in their/its power to either get away without paying the claim altogether or otherwise to minimize how much they ultimately do pay out. Why? Profit! The insurance industry simply knows that the longer and harder they make the average claimant/innocent injured victim/and plaintiff personal injury attorney wait and work for compensation, the more likely they will either be to go away for nothing or eventually settle for much less than the full fair value of the injury claim. And, unfortunately, to a large extent, at the expense of the little guy, the average Awhiplash@ victim, they are right. Many people just don=t think it=s worth it to pursue a claim. Some people believe what the insurance industry has brainwashed them to believe, which is that it=s wrong to make a claim if you are hurt. That bothers me. Either you=re hurt or you=re not. And you are either entitled to be compensated for your injuries if somebody else caused them, or you=re not. That=s the law. That is a basic fundamental constitutional principle.

While I can literally write hundreds of pages on the philosophical position and views concerning personal injury claims, the insurance industry and its function and personal injury attorneys, I will proceed by providing a framework of a typical personal injury case, the Aanatomy@ if you will:

1. An accident occurs. This may be a car accident, bicycle accident, pedestrian accident, truck accident, bus accident, trip and fall, slip and fall, dangerous condition, dog bite, or any one of hundreds of other scenarios where someone gets hurt.

2. An injury is suffered. This may be anything from a soft tissue sprain and strain to the muscles to your neck and back to fractures,

laceration, surgery, treatment, brain damage, knee injuries, hip injuries, shoulder injuries or even death.

3. A person calls my office for a free consultation usually wanting to know what their rights are and whether or not they have a case.

4. We immediately interview the person to find out the details of what happened and what their injuries are. If the person informs us that they were not hurt and just wanted advice, we provide them with sound advice as to how to handle their claim and what to expect as they do not have a personal injury claim. If the person was hurt and regardless of to what extent, we proceed with an analysis of the three (3) main component parts to a personal injury case:

a. Liability;

b. Collectability;

c. Damages.

It has been my experience that issues always arise or develop in at least one of the three areas.

a. Liability

This area basically concerns the facts of the accident. The who, where, what, when, how and why. Car accidents have fact patterns that are constant and repeat themselves over and over again. I can usually determine if my client is not at fault at all, at fault completely, or partially at fault, in which case it would be a comparative negligence case, within a few minutes. Premises liability slip and fall or trip and fall accidents are a little more difficult and interesting and generally involve more issues and areas of inquiry. Again, the fact patterns repeat themselves and I am able to assess whether my client was fault free altogether, at fault, or comparatively negligent within a matter of minutes.

Dog bite cases are common and usually straightforward in that the law in California basically provides that the dog owner is strictly liable if his/her dog bites someone. Naturally, there are always extenuating circumstances which must be examined.

There are hundreds of other types of factual scenarios giving rise to personal injury claims, but the above are probably the most common.

During part of the analysis, we basically ask the prospective client what happened. Beyond that we find out what evidence might exist to support the claims of negligence and fault against the other party. This would usually be in the form of witnesses, accident reports, incident reports, traffic collision reports, surveillance videos, scene diagrams, scene photographs, ambulance reports, property damage photographs, repair estimates, injury photographs, and anything else the prospective client might have or know exists in order for me to start the investigation process.

b. Collectability.

This is basically the insurance coverage part of the analysis. While it is still required by the Financial Responsibility Laws in the State of California that every motorist be covered by liability insurance coverage, unfortunately there is still a fair percentage of people who simply cannot afford or otherwise just don=t have insurance. If the other party is insured, we move forward with the claim. If the other party is not insured, we do have several investigative methods to verify whether in fact the other party might otherwise still be covered by someone else=s policy, i.e., employer, registered owner, legal owner, principal, or resident household relative. However, even if the other party is uninsured, we ascertain whether our client had full insurance coverage with uninsured motorist bodily injury liability coverage. There are additional coverages such as medical payments benefits which may apply.

In premises liability cases, we are attempting to verify either a homeowners liability policy or a general commercial liability policy. However, some large business and franchises or chains might be self insured.

The key here is to determine whether there is a source of collectability. People pay a premium to insurance companies to be protected and to have peace of mind when, in the event of an accident or injury, they are covered. That is the purpose of insurance.

If, for whatever reason, we determine that there is simply no insurance - no collectable source - then we may have to conclude that it simply is not economically feasible or practical to pursue the case.

c. Damages.

This is the injury or harm part of the analysis. Injuries and harm suffered come in all shapes, sizes, and levels of severity. What might be a very minor non-serious injury to one person might be a very serious complex injury to another. Whether it=s a soft tissue injury, sprains and strains, or fractured bones requiring surgery and hospitalization, lacerations with permanent scarring, disc herniation, or death, we take each and every client=s case personally and seriously.

Again, I can write hundreds of pages on injuries and damages but the most important point I need to make is that the innocent injured victim only gets one bite at the apple, one opportunity to prove his/her injury, one opportunity to prove how the injury impacted his/her life. How he/she suffered and was inconvenienced, and yes, how he/she recovered. Damages includes all of the economic components such as ambulance bills, hospital bills, chiropractors and medical doctor bills, specialist consultation bills, i.e., x-ray and MRIs, future medical bills, and loss of earnings and earning capacity. In addition to the bills themselves, we must evaluate the actual nature and extent of our client=s injuries, the diagnosis and prognosis. Further considerations such as age and general medical condition prior to the incident are also factored in. In short, the more serious an injury and the more medical care and treatment, the more evidence of pain and suffering, anxiety, ordeal and interference with life and lifestyle is all factored in wh en attempting to maximize our client=s recovery based on the injury.

After the preliminary consultation and evaluation of liability, collectability and damages, we make the decision to accept or reject the case. Assuming we accept representation, my team of attorneys, I investigators, and paralegals immediately start working on the case so that we can protect your interests, prosecute your case and maximize your recovery.

Typical questions that we encounter from our clients are (1) How long will the process take and (2) how much is my case worth. Both are very legitimate questions. The average case will take as little as approximately 6 months to approximately 36 months. Every case is evaluated individually and issues arise during the course of the case that can change the value for the better or the worse. As such, in my opinion, it is somewhat irresponsible for any attorney to jump the gun and evaluate the case prematurely and prior to at least receiving the preliminary medical and hospital records, reports and bills.

What will the insurance claims industry do?

It is my experience that the insurance claims industry trains its claims adjusters and representatives to do everything legally reasonably possible to pay out and/or compensate an innocent injured victim nothing or as little as possible.

I must say, without any qualification whatsoever, that if you were injured in an accident and it either was not your fault at all, or you were partially at fault, and if you are not represented by an experienced plaintiff personal injury attorney, you don=t stand a chance! You must be represented in order to level the playing field. You must know that the insurance claims industry and the adjuster handling your claim are not your friends in need. You cannon and should not trust them! They are not working for you! They work for the insurance company. They are not looking out for your best interests. They will literally lead you to believe they will Ado the right thing@ and that you don=t need an attorney. Then, several months later, when it might be too late to retain an attorney, and after you=ve played into their trap, they will transfer the file to another adjuster to deny or dispute your claim or hide behind the decision of a supervisor to override their earlier decision to pay the claim. I hear this and see it all the time.

If you get anything at all from this article, it should be for you to call a personal injury attorney immediately after an accident for a consultation and then to retain an attorney to protect your interests.

To handle your own claim against the insurance industry is like performing surgery on yourself. As importantly, you must hire an attorney who limits his/her practice to plaintiff personal injury law. Someone who knows the industry and the ins and outs and how to deal with the insurance industry.

If you break a bone, you go to an orthopedist not a dermatologist. Similarly, if you suffer an injury in an accident, you should retain a personal injury attorney not a criminal defense or family law attorney.

Beyond that, and whether you are represented or not, the insurance industry will do everything in its power to defend the three areas of analysis I=ve discussed above: