WHAT IS THE ROLE OF THE ROAD ACCIDENT VICTIM’S LAWYER AFTER A TRAFFIC ACCIDENT?
Some road accident victims still wonder what the role of a personal injury lawyer is in the case of a road accident when the insurance company has already offered to organize an expert opinion and to pay them a deposit.
It is only legitimate that victims of road accidents, who are weak and in psychological distress, want to get out of this nightmare quickly and rarely turn to a personal injury lawyer, mistakenly thinking that the role of the lawyer is limited to litigation.
In reality, the personal injury lawyer who intervenes in traffic accidents has several legal skills: in road traffic criminal law, in civil liability law, and in insurance law and intervenes at all stages of the procedure: administrative, legal, amicable, or contentious, and this, from the beginning and perhaps even for certain road traffic victims, from their admission to the hospital (in cases of contestation of responsibility).
The road accident victim’s lawyer, in his role as adversary to the insurance company.
The road accident victim, in a state of shock, or even post-traumatic stress, is naturally « guided » by his or her insurer to whom he or she has made his or her first administrative declarations (either directly or through his or her family in the case of a severe handicap).
Nevertheless, the victims do not know it, but the insurers settle their disputes among themselves through internal conventions (such as the IRCA convention for bodily injury) when, of course, these insurers are not part of the same group.
Also often, it is the road victim’s own insurance company that will handle the claim directly with its insured and the victim must beware of false good advice.
In fact, when the victim’s insurance company suggests appointing a medical expert or even a lawyer, it is an expert paid by the insurance company, which is supposed to compensate the victim.
The personal injury lawyer counterbalances the power relations in the management of the compensation of the road accident victim.
This is the main reason why victims are not advised to use their own insurance or to let their insurer appoint a lawyer or a medical expert who will only protect the interests of the insurance.
Traffic accident victims are vulnerable people, often unaware of their rights, as the matter is so complex and evolving.
The victim should therefore appoint his or her own personal injury lawyer who will accompany and support him or her from the very beginning.
The road accident victim’s lawyer in his role of collecting information and documents from the day after the road accident.
Once the traffic victim has appointed the personal injury lawyer, either directly or through her family if she is unable to do so, she will tell the lawyer the precise circumstances of the traffic accident.
The idea is that the personal injury lawyer can, in his role of gathering information, analyze the situation and draw all the legal consequences of the accident.
Is the victim responsible for the accident, in which case he or she would not be entitled to compensation unless he or she has a driver’s liability insurance policy (not to be confused with an all-risk policy that covers material damages)?
Is the victim only partially responsible, and in this case the road accident victim’s lawyer will determine the percentage of responsibility according to the Highway Code and not according to the IRCA convention of the insurers, which is very penalizing for road accident victims.
Finally, is the traffic victim not at fault, either because he or she was not at fault, or because he or she is simply a passenger victim?
By collecting this information, the personal injury lawyer will draw from his experience a strategy that he will implement with the road accident victim (amicable, contentious, etc.).
The personal injury lawyer will then ask the road victim for all the documents needed to build the case.
The lawyer will then put on his administrative hat to collect documents from the accident victim.
The road traffic lawyer who assists victims of personal injury and particularly of road accidents, must necessarily have some medical knowledge even if his role is certainly not to substitute himself for a doctor.
The personal injury lawyer will not be surprised to find the « Glasgow Scale » in the victim’s medical documents when assisting a victim of a head injury following a car accident.
The lawyer will then list all of the medical documents necessary for the constitution of the medical file: initial medical certificate, medical certificates, operating reports, medical prescriptions, work stoppages, X-rays, scans, medical certificates… and of course, the copy of the medical file.
The personal injury lawyer will have to check each medical document and, if necessary, ask that the document be written differently for the needs of the legal file (as is the case with the initial medical certificate, which is often poorly written).
The lawyer will also ask for the injured victim’s personal documents such as invoices for expenses incurred, tax notices, pay slips, various photographs of the injured victim’s physical injuries, and various certificates.
The victim’s lawyer will take the time to explain each of his or her claims to the traffic victim.
As soon as the file has been compiled, the lawyer will approach the insurance company to transmit these initial elements and request an initial advance on behalf of the accident victim, even before a medical expertise is held.
Usually, before the expertise, the insurance companies propose a provision of between 500e and 5000e to the victims, but as soon as they are assisted by a victim’s lawyer, the insurance companies revise upwards their proposal of provision which will be between 5000e and 15000e (before expertise, since this provision can be higher after expertise).
The road accident victim’s lawyer in his role as assistant to the victim during the medical expertise.
The medical expertise is the keystone of the compensation of the personal injury victim of the traffic accident and the presence of the lawyer / medical advisor of victims, is essential.
Also, the personal injury lawyer will introduce a medical advisor to the accident victim with whom he is used to working. Indeed, care must be taken because very often medical consultants work with victims but also with insurance companies.
By appointing the doctor, the lawyer undertakes to ensure that this doctor is a victim’s medical advisor, exclusively.
Once the victim’s medical advisor has been appointed, the lawyer will organize a mediation examination before setting up a contradictory medical expertise.
The doctor will get to know the victim and, above all, will listen to him or her because this is the only time when the victim will be able to list his or her injuries without fear. This interview is fundamental because it can take some time…
In addition, the lawyer in charge of defending the interests of the accident victim will call upon his network of experts composed of several specialties: occupational therapist, neuropsychologist, psychiatrist, physiotherapist, an architect (adaptation of the victim’s home).
The idea is to build up a solid file even before the medical expertise.
A mission of expertise will then be drafted (or controlled) by the lawyer in order to frame the medical expertise to be carried out, in order to evaluate the bodily injuries of the victim of the accident.
The medical expertise will be organized and set up, the accident victim being summoned with his lawyer and his medical advisor.
The « lawyer/doctor » pair will then assist the personal injury victim during the medical expertise, one participating in the medico-legal discussion and the other in the clinical examination.
Finally, the lawyer specialized in personal injury law will have the option, after the expertise, of making medical observations (on the instructions of the medical advisor) and legal observations at the pre-report stage within the framework of writings called « DIRE (contentious procedure).
Even after the parties have been notified of the final report, the personal injury lawyer will still be able to challenge the assessment of a particular injury before a personal injury examiner, an insurance lawyer and even a judge.
The victim’s lawyer will then guide the victims, accompany them, advise them and, in the same direction, direct the different personal injury experts mentioned above, give them precise instructions and this with one and only objective: always the same, the safeguarding of the interests of the road accident victim.
The road accident victim’s lawyer in his role of negotiator of the compensation of each item.
The Court of Cassation has decided in a ruling of principle that advice in matters of personal injury compensation was reserved exclusively to lawyers.
This ruling has caused a lot of ink to flow, since the profession of insurance expert (not to be confused with the insurance company’s expert physician), often practiced through front companies and by former body inspectors, or in parallel with another profession, is now considered illegal.
Therefore, the personal injury lawyer also intervenes well before any litigation procedure, which must nevertheless remain an option, in case negotiations with the personal injury inspector or the insurance lawyer fail.
The lawyer will use the final expert’s report as a basis to list all the injury items according to the Dintilhac Nomenclature at a minimum, and to calculate the compensation.
The lawyer specialized in road accidents will meet with a bodily injury inspector from the tortfeasor’s insurance company directly at his office in order to negotiate the various items.
In the event of a total disagreement, the lawyer will refer the matter to a judge for all of the damages, and in the event of a partial disagreement, it is possible to compromise on certain items and reserve the others for litigation.
Once an agreement has been reached, the victim must sign a settlement agreement that has been verified and checked by the victim’s lawyer.
The role of the personal injury victim’s lawyer is to optimize the possible compensation to be drawn from each item of damage.
The intervention of a specialized lawyer can sometimes obtain up to perhaps a hundred times what the accident victim could have obtained alone with the help of a third party (insurer, consultant, insurance experts, etc.).