10 Ways to Improve Your Car Crash Demand Letters

According to the US Bureau of Justice Statistics, 98.2% of all civil cases settle prior to filing a lawsuit.  Of the 1.8% tort claims that are filed, most of those resolve prior to trial. This means that nearly 100% of tort insurance claims will settle or terminate prior to a jury trial.

While many lawyers know Trial Guides as the leader in books, audio and CLEs on trial methods, the company started with a book about how to obtain maximum settlement value in auto cases. The groundbreaking book Colossus: What Every Trial Lawyer Needs to Know, featured Trial Guides founder Aaron DeShaw’s insights from years of researching the insurance company’s bodily injury software, and how lawyers could use the information to obtain maximum settlement offers for their clients in motor vehicle cases.

While our Colossus book has been out of print for many years, some of Trial Guides’ top selling educational products address the topic of personal injury settlement include Nick Rowley and Courtney Rowley’s book, Running With the Bulls (also available in e-book), as well as other videos on Colossus style demand letter for spinal injury cases, specialty demand letters in traumatic brain injury cases, how to write trucking crash demand letters, and using decision science to write your demand letters. DeShaw’s Colossus Legal Forms for collecting information to increase settlement values also remains available, and are discussed below.

If you are a personal injury lawyer looking for practical ways to immediately improve your auto settlements and personal injury practice, consider these ten ways you can save time and maximize settlement offers. 

1. Start Collecting Key Evidence During Your Client Intake

Many lawyers think writing a great demand letter is the first place to start preparing for the settlement of a claim.  However, in order to write an effective demand letter – one that elicits maximum settlement value – you must ensure that you and your legal staff are gathering the right information and sending the right letters to the insurer, starting at the client’s intake. As Aaron DeShaw, and leading demand letter consultant, Charlette Sinclair, urged in their live Trial Guides Demand Letter CLE, you must know how to effectively prepare your client’s case for the demand letter in order to maximize settlement value.

While proper case selection is a crucial component of any good personal injury practice, your work to prepare for settlement of an injury claim begins at intake. As soon as you meet your client you should start preparing for their trial, and in doing so, you will be preparing for a more successful settlement.

Collecting Case Documents

There is a plethora of documents and information required from an injured person when they hire a lawyer to represent them in a car crash, premises liability, medical malpractice or other type of personal injury claim. As such, legal assistants and paralegals, seek to efficiently track down necessary documents to prepare for a personal injury lawsuit.  But there are a few things you should ask the client to bring to your intake meeting, or send to your office before the intake if you are doing the intake by Zoom, Google Meet, Microsoft Teams, WebEx or another video platform.

DeShaw and Sinclair stress that gathering all necessary information is key when it comes to preparing for settlement or trial. While you should collect as much information as you can at the intake stage, there are key pieces of evidence that you should pay special attention to during intake, in order to best prepare the claim for settlement.

In addition to the legal retention and fee agreement, the items you want at the intake meeting include; A completed intake form, photocopies of the client’s driver’s license and insurance card, copies of photos of the tortfeasor’s license or insurance card, your client’s insurance policy contract and declarations page (or that of any other party who may have insurance for the incident), any medical records they already have related to care for the incident, and photographs or videos of the event, the scene after the event, or the injuries caused by the event.  In addition, you will want to get releases for medical records, school transcripts and other necessary documents.  Check with the client to determine what health care facilities were seen for injury care.  Beyond these basic items, it is your law firm’s responsibility to obtain additional documents and reports for the claim.

2. Consider the Jury Instructions and Your Opening Statement for the Case

Trial legend Rick Friedman has long suggested considering your pattern jury instructions during and after the client intake.  But why do that in a case you are likely to settle?  The reason is, if you know the jury instructions from the beginning of the case, you will know whether it is a viable case, how you should win or lose, and start formulating your arguments for your demand letter and trial during your intake.  If it isn’t a legally viable case, or you don’t think you can win the case based upon the jury instructions and laws of your state, it may not be a case you want to invest time and money into for the next few years. 

If you believe it is a good case that you will accept, you may want to sketch out an opening statement about the case so that you have it for reference as you move through the case, and when you start the demand letter.

3. Investigating Insurance Coverage

Think through all of the parties and their potential insurance coverage.  If there is legally viable insurance coverage for the loss, make claims under all of the policies. If the client has moderate to significant injuries, coverage will become important, and you should consider this issue fully at the beginning of the case.

Study insurance coverage – should there be insurance coverage for one of the parties even if it is initially denied?  Are there multiple policies that apply within one type of insurance coverage (such as State Farm writing several separate auto policies for one client? Or auto and a separate umbrella policy that covers an uninsured or underinsured loss? Or coverage by multiple third parties?) Investigate more. The first step in preparing for settlement is finding all the insurance coverage.

In cases where a client’s own insurance may be available, a lawyer or support staff should always retrieve copies of the client’s insurance policy, including the declarations page, and information for any and all other coverage that may exist for them, such as umbrella policies or a policy belonging to a member of their household that may cover the individual in an auto accident.

Finding all the coverage available to the tortfeasors can be a more difficult task.  Some states require the disclosure of all insurance available to the at-fault party.  Others do not.  Seek information regarding the tortfeasors insurance policies, and information for any and all other coverage that may exist for them, such as umbrella policies or policies belonging to a member of their household that may have covered the individual in an auto accident. Was the car owned by an employer? Was it a rental car? A parent’s car? What is the family purpose doctrine limits of your state? Consider how each of these might impact every case.

In other cases such as rideshare cases, consider whether you can get coverage both from the rideshare company, the driver’s own policy, and any additional party such as a car rental agency that owns the car involved in the crash (such as the Lyft-Hertz lease agreements).  In workers compensation cases, consider whether in addition to employer or fellow employee liability, whether there is also one or more third parties at fault for the injury (including an equipment manufacturer). In trucking cases, look to determine if there is separate insurance for the cab, the trailer, the trucking company, the broker, or the driver.

Experienced personal injury lawyers also recommend prior to any settlement that you have the liable party or parties provide an affidavit of assets and insurance coverage, to ensure you have a legal basis for litigating the case if you later find that they misrepresented their assets or coverage.  

In a vehicle vs. pedestrian case, for instance, you should collect and review all auto insurance policies for the victim as well as the bad driver. If your client is injured in a premises liability incident, investigate the business and property owner insurance to determine any party who is covering the loss. 

4. Investigating the Case

In a motor vehicle case, request a police report or Department of Motor Vehicle incident report. What is the adverse driver’s name? Do you know their drivers license number or their license plate number? If so, check DMV records for auto insurance coverage on file, or the driving history.

Databases rarely contain all viable information on a defendant.  Finding a string of driving infractions or criminal history can be significant in driving settlement values.  So, run a combination of a general background check with a service such as LexisNexis Accurint, a criminal background check with the state court system of the defendant’s state and a driving history with the state Department of Motor Vehicles (or its equivalent). This is particularly true if the driver was driving a commercial vehicle.  Trucking cases are not merely “big car cases.”  You will need to understand the laws of intrastate trucking vs. interstate trucking and how these differences could impact your case. As a starter, watch our comprehensive trucking CLE, What’s Your 20.  For more join the Academy of Truck Accident Attorneys and attend a seminar on how to handle trucking litigation.

Interview percipient witnesses, seek the video from businesses nearby, or even red-light cameras. If it is a rideshare vehicle or a Tesla, it may have an onboard video capture system. Then seek witness statements from people close to your client as to the impact of the injuries on your client.  If liability is in doubt seek an investigation by a crash reconstructionist or biomechanist.

Depending upon the nature of the case, there could be much more to do in establishing liability, causation and damages. One of the best resources on learning how to fully investigate a case from the beginning for settlement and trial is Rick Friedman’s book The Elements of Trial.

5. Obtaining Medical Records

Requesting a client’s complete medical records is one of the most important parts of preparing for a personal injury settlement. The tedious task of sending specifically worded form letter requests to multiple medical providers is usually a task owned by a legal secretary, assistant or paralegal.  As any support staff member can attest, it can quickly get the best of you and your day if you let it.  In fact, some legal polls demonstrate that collecting medical records is the most challenging aspect of running a personal injury settlement practice.

Leading demand letter consultant, Charlette Sinclair of Settlement Intelligence, recommends immediately requesting ER records, and all other trauma records available in the case at intake. With few exceptions, you should request key trauma records that demonstrate an injury has occurred as a result of the incident as soon as you get the case, if applicable. It is crucial to understand your client’s damages as they exist at intake. This is very important for getting the insurance company to set aside sufficient money to settle the case – a process called “setting reserves” discussed below.

Time is of the essence with medical record requests. If you thought it took a long time to receive medical records in response to your HIPAA compliant requests before COVID-19, delays are even longer now. While many lawyers wait until the client is medically stationary to request records, long delays in receiving records means you should request records early, particularly if the client will not return to that facility (such as an ambulance, hospital, or imaging facility.) Before your law firm starts sending the medical records requests, check back with the client to determine what health care facilities were seen for injury care, as opposed to health care that is not applicable to your case.  Find out of there are pharmacies or medical supply companies where they incurred additional charges for care. There may be several more since the intake meeting, as well as pre-injury health care facilities or providers that they forgot to disclose during intake.

You should request your client’s prior medical records regarding any pre-existing injuries that may have been aggravated by the injury or incident, or any treatment that they were receiving at the time of the incident. This will allow you to determine the extent of any aggravation, and help your client seek the necessary medical opinions to support the changes.  (This will help you best address any “activation” of prior silent medical conditions, as well as the aggravation of active conditions or worsening of injuries at the time the client was injured and then address how a jury would consider those based upon the pattern jury instructions in your state within the demand letter.)

You will want to collect medical records from 5-10 years prior to the incident, in addition to all health care records and bills associated with the incident.  Do not wait until the insurance claim adjuster requests prior records after you’ve sent your demand and/or are approaching a statute of limitations - especially concerning records 5-10 years prior to the injury.  They will almost certainly request the pre-existing records.  Obtaining these 5-10 years of past records is a process that takes a considerable amount of time to complete, and therefore should be initiated as soon as possible. A failure to seek the pre-existing records can result in delays when the adjuster seeks the past medical records before making an offer.  Given the long timeline available between the date of loss and the demand letter, it is best to simply order everything at once rather than wait until the adjuster asks for them and you may be up against the statute of limitations. (* The only potential danger is in the cost of a large and expensive pre-existing medical file in cases where the injuries are not significant and the value of the claim is small.)

While many experienced settlement lawyers recommend requesting medical records only after the injured person has reached their “maximum medical improvement” and finished treatment, more seriously injured people are still treating at the time of their statute of limitations.  Sinclair recommends that you request medical records at least six months after intake if the person is still treating, so as to start preparing a medical chronology or “Treatment Timeline” - a searchable summary of the medical records. (More on records review below.) If treatment continues, you then need to request the remaining records at the latest, six months before the statute of limitations.

After the COVID-19 pandemic it’s more important than ever to stay ahead of medical records requests. Long delays have become much longer.  It’s no secret that hospitals and medical offices lost staff due to COVID-19 and this appears to have directly impacted the administrative staffing that responds to medical record requests. While some state statutes provide a clear deadline for which providers are required to respond to medical records requests, many states do not, resulting in six month delays or longer

Scheduling medical records request reminders in your client management system is the most efficient way to ensure you receive medical records in time for settlement. Legal staff can also calendar these requests using a calendar application such as Google Calendar or Microsoft Outlook.

Following a timeline for medical records retrieval, setting reminders for when to request updated medical records, and delivering request letters shouldn’t be a cumbersome chore. Always keep handy a form letter with up-to-date statutory guidelines concerning HIPAA, in plain language. Also include a clear date range, usually from the date of loss to the present, or the date you last received the records through the present to eliminate duplicate costs. 

Once you’ve created your form medical request letter, save it to the client’s digital file and simply edit the provider information and date range that you wish to receive the records from for each subsequent request.

Calendar reminders for you or your staff to also place a phone call to the release of information department of the provider to ensure that your request was received, and that no other documentation or information is necessary in order to fulfill it. Too often are medical records requests getting lost in the shuffle.

Don’t let your medical records request sit in a pile or digital queue for several weeks─follow-up right away, and continue to set reminders to follow-up until the records are received. Obtaining all medical records in a timely manner is crucial for preparing for a demand letter and auto settlement.

You could also outsource this task, although please thoroughly review medical record vendors to ensure they have a strong track record of obtaining the client’s full records in a timely manner.

6. Setting and Resetting Reserves

Insurers are legally required to set an amount of money aside for claims, so that they always have sufficient funds available to pay pending claims. But, without your insights about the injuries, costs and other facts of the case, they will set a low reserve that is used as an average across all claims.  If you then submit a demand letter with much higher value, the insurer will not have sufficient money set aside to settle your case for a fair value.

As Aaron DeShaw points out in the online CLE, Writing Demand Letters for Paralegals, it is important to set reserves with insurance adjusters at the beginning of your representation. Obtaining key records such as ER records, positive radiology records, specialist records and surgery notes, and submitting those to the insurer with a “reserves letter” will help the insurer set aside more money for larger injury claims. For example, provide something like the following in a letter to an adjuster, setting reserves for an auto accident case:

“For the purpose of adequately setting reserves for this claim, I would like to disclose to you that my client sustained a traumatic brain injury and multiple fractures of her left clavicle, which required surgical intervention, and will require future treatment including additional surgical procedures. Please ensure that reserves are set accordingly.”

Every time you get an important medical record from a specialist (or expert) confirming or demonstrating an injury, need for surgery, or something significant, provide an additional reserves letter with that document.  This notifies the insurance company to set aside enough money to settle the case. To comply with most state laws, they must continue to reset the reserves based upon the information you provide them.  (Whether they do that in accordance with state law requirements is a separate issue.)

Getting an insurer to set reserves correctly means you should have an appropriate reserve and an adjustor with appropriate settlement authority assigned to the case when you send your demand letter. 

7. Fully Document the Property Damage

Obtain the Auto Property Damage Final Repair Bill, Total Loss Reports, Comparable Vehicle Values, or get an Independent Vehicle Damage Assessment.

A property damage claim is almost always handled separately from a bodily injury claim. If a lawyer is not representing an injured person in regards to their property damage claim, she/he may not find it important to obtain the vehicle damage estimate or bill at intake.

 Even if you aren’t handling the vehicle damage claim, however, it’s important to review the estimate and final bill for vehicle repairs concerning all auto injury claimants your office represents.

In their on-demand CLE called Mastering Motor Vehicle Cases, Arthur C. Croft, an Epidemiologist, Doctor and an expert in biomechanics, and accident reconstruction, addressed how insurance defense experts use average velocity to mislead jurors into thinking people aren’t injured.

Insurance companies start to form their “MIST” defense right away. When a property damage bill is under $2,500, for instance, most insurance companies arbitrarily classify the claim as minor impact soft tissue, and transfer it to the “special investigations unit” where it is likely to be significantly undervalued or even denied.

The vehicle damage final bill will provide insights on the actual damage sustained, even if the photographs reflect minimal visible damage to the car’s body. It can also help prove causation, as Aaron DeShaw discusses in Overcoming “Minor Impact” Defenses in Auto Cases, an on-demand webinar. (DeShaw also recommends a vehicle “tear down” analysis in cases where the car shows minimal external vehicle damage but the client has notable injuries.)

Let’s say your client hit their head upon impact, resulting in a forehead laceration and mild traumatic brain injury, but the insurance adjuster denies causation due to the property damage totaling only $1,499 in repairs. Not only is this an opportune time for you to review the property damage bill, it’s also a great time to refer to any photos you might have of the vehicle damage.

Important factors you should take into consideration when reviewing the property damage final bill includes any seat belt malfunction or subsequent breakage, undercarriage or frame damage, head-rest placement (sometimes referred to as “head restraint geometry”), and any trailer hitch components that may have been involved.

Some of these factors, which are normally found only if you review the entire property damage bill or estimate, can help you navigate your client’s claim out of the “minor impact soft tissue” (“MIST”) department of an insurance company, to the general population of claims for full consideration.

Another important factor to look out for within the property damage estimate and bill is the use or recommendation of any used or “after-market” / non-Original Equipment Manufactured (“non-OEM”) parts. Both used parts and non-OEM parts reduce the vehicle repair estimate significantly, causing the vehicle damage value to appear lower than it really is. Non-OEM parts can also result in diminished value of the target vehicle or void it’s warranty leading to a larger diminished value claim than is inherent to the vehicle being damaged alone.

Practice Hint: Neither the property damage nor bodily injury insurance adjuster will direct you to this information─request the vehicle repair estimate and final bill documents directly from the auto repair shop, along with any photographs from all auto insurers and the repair shop directly.

 Focus on obtaining this key information starting at the intake phase, in order to efficiently prepare for the settlement of a personal injury claim during the pandemic. The sooner you request these documents, the faster you’ll be able to provide an offer of settlement to the insurance company or adverse party. 

8. Obtain Photographs, Video, Imaging, and Graphics.

This one might seem obvious, as the old adage goes, “a picture is worth a thousand words” - that is especially true when it comes to personal injury claims. Scene or damage photos, imaging screen shots, and graphics showing injuries should be visualized whenever possible.

If photographs of the incident, scene, damage, or subsequent injuries exist, you should request color copies from your client, the insurance companies, body shops, premises (store, hotel, parking lot, etc.) witnesses, et al. If they don’t already exist, you should take photos to graphically demonstrate the scene or loss in the case.

If you know that your client had a demonstrable injury that are visible on imaging, whether it be an MRI of the spine, a radiograph of a broken bone, or CT of the skull, prior to the liability incident, it is important to retrieve those imaging studies as well. Get a list from your client, of all the providers/facilities they visited prior to the liability incident you represent them for during intake, so that you’re prepared to request records when necessary.

Also, calendar a reminder to ensure the client follows up for repeat imaging studies to compare pre and post liability incident pathology, if applicable. Immediately obtaining copies of photographs and imaging studies will help you prove and visualize the damages involved in the case.

As litigation visual strategist Tyler Komarnycky notes, the use of visual aids in the demand letter, mediation, arbitration, or trial, can result in a significant increase in case value, no matter what type of case it is. Visual aids are especially effective in pre-litigation settlement negotiations, arbitration and trial. High Impact®️, MediVisuals, DK Global or other litigation graphics companies can help bring your client’s medical imaging to life.

In auto cases, photographs depicting significant body damage can help you overcome the popular “minor impact” (or what insurance companies like Allstate refer to as “MIST”) defense that most insurance adjusters use to try and settle the claim for much less than it’s worth. For example, when the adjuster uses the minor impact defense, perhaps after seeing a low property damage bill, but no photographs─you could point them to a photo showing visible vehicle damage, and explain to them how a jury will reject a MIST- style defense. 

9. Learn How to Write a Settlement Demand Letter Correctly to Obtain Higher Offers

In the past 30 years, the number of tort claims filed in state courts has dropped by 80%.  With fewer and fewer plaintiff lawyers going to trial, the American plaintiffs’ bar is starting to take on the appearance of the British legal system’s Solicitors, with very few Barristers left trying cases.  We raise this point because without trial (and arbitration) experience, the difference in settlement offers made to settlement lawyers and those made to trial lawyers can be very substantial.  The most effective methods of writing your demand letters is similarly very different from settlement lawyers to trial lawyers.

Writing Settlement Lawyer Demand Letters

Writing a good settlement demand letter in many areas of personal injury law, doesn’t involve how well you can describe your client’s feelings, creative legalese, or outlining every symptom and medication since the incident. Writing the best demand letter involves understanding your client’s medical records and knowing what you’re up against when the insurer evaluates your client’s claim.

An example is this – despite over 90% of auto claims in the US being evaluated by insurance claims software, and this same software being used in the US since the early 1990s, many lawyers are still unfamiliar with the insurance bodily injury assessment software programs or how they evaluate claims. Ever since Allstate first adopted claims evaluation software in the 1990s, as a tool to reduce bodily injury claim payouts, Colossus and other programs such as Liability Navigator (formerly Claims Outcome Advisor  or “COA”), ClaimIQ, and others are gaining more popularity amongst auto insurance companies worldwide. 

Aaron DeShaw, the nation’s leading author on Colossus, wrote Trial Guides’ first books on these insurance software programs. 

When they receive your demand letter, insurance adjusters rely on personal injury software programs like Colossus, Liability Navigator and ClaimIQ while reviewing your client’s medical records, in search of factors that fit into certain injury parameters and severity levels. The software program assigns a monetary value to each injury and treatment factor to generate an offer of settlement to the injured party.

No matter what the lawyer’s demand letter says, the medical records are the only source of information used by the adjuster to obtain injury data for Colossus software, instructs DeShaw.  Consultant Charlette Sinclair notes, “if it isn’t supported in the medical records, it doesn’t belong in your demand letter.” Furthermore, you should always reference a physician’s opinions wherever you can within your demand letter.

The best way to understand your client’s injuries is by analyzing their medical records. Whether you outsource for a medical chronology, or task your legal assistant or paralegal with preparing a treatment timeline - Charlette says having an accessible, searchable, chronological summary of the plaintiff’s treatment is ideal when preparing to write a demand letter, and preparing for settlement.

This will ensure you’ve pinpointed each and every factor that is valuable to your client’s personal injury claim without relying on the adjuster or Colossus software to accurately locate the value drivers important to the software, such as, ICD codes and diagnoses, prescribed medication, immobilization, objective testing, and duties under duress.

When you can quickly search and note each time a symptom, injury or treatment is mentioned in the records, you can more effectively write the demand letter and then negotiate settlement with the insurance adjuster. After all, the adjuster is likely to find reasons why the medical records are insufficient or “missing” information, either to deny, delay or defend their position that your client is not injured as a result of the incident at issue in the claim.

Do not send a demand letter until you have all records and bills unless there is no way to get them.

Sending demand letters before the lawyer has all of the medical records and bills is becoming a more common, and very bad practice. As DeShaw recently noted in a post on the Settlement Intelligence web site FAQ;

We strongly advise against this. We cannot reinforce this point strongly enough.  We have significant concerns as we are seeing an increasing number of lawyers engaged in this practice.

The short answer why you should not do this, is that adjusters at some insurers get penalized for re-running a client’s case in their [bodily injury] software.  As an example at Allstate, [the company’s consultant] McKinsey & Co. saw that adjustors were [trying to avoid the low settlement offers provided by] the software by re-running claims in hopes of getting a higher settlement range.  [McKinsey advised Allstate to stop this practice] by penalizing adjustors who re-ran their claims.  (Similarly, [McKinsey advised Allstate to track adjusters based on] whether they settle a case within the high and low range of their first run in the software, to ensure adjusters are complying with the company policies in place to maximize an insurer’s savings by using these programs.) 

If the adjuster violates company policies they won’t get a raise and will not get considered for promotion.

Adjusters can only enter information from the medical records and bills they have been provided at the time they run your claim.  So, when you send a demand letter to an adjuster with only part of the client’s records and bills, you are either intentionally getting your client’s case undervalued, or you are going to resubmit the case later and result in a negative personal review for the claims adjuster that will prevent them from getting promoted.  So, it is an awful idea to submit claims with only part of the records and bills.” 

The only exception to this would be in small policy limits cases where the available records will result in a policy limits offer.

How to Format a Demand Letter for Claims Handling Software

So, how do you write a demand letter optimized to maximize settlement value?

Best practices for auto, workers comp, and some premises liability cases is now available through Settlement Intelligence.  The company, co-founded by Trial Guides founder Aaron DeShaw, and legal consultant Charlette Sinclair, helps lawyers, paralegals and legal staff walk through the demand letter data collection, then generates the demand letter for you in the optimal format. This allows you to claim all of the “value drivers” that provide monetary value within the insurance claims software.

Once you have obtained the information necessary to proceed to the demand letter phase, such as: information regarding coverage (demand letter recipients), medical records, medical bills, property damage reports, photographs, information regarding lost wages, pain and suffering, etc., and you’ve read your client’s medical records, you’re ready to begin drafting a demand letter to trigger personal injury software, or enter that data into Settlement Intelligence to seek all the necessary data, and do the formatting for you. The format of the demand letter changes based upon the facts of the case, and the information you enter into the platform.

ICD / diagnostic codes are the injury diagnosis codes. These should be located in the medical bills (and hopefully the medical records) for each diagnosis made. It is important to remember that an insurance adjuster is likely to argue the injury does not exist until they’ve located the corresponding ICD code in the medical records or bills.

The most valuable part of a claim are the diagnosed injuries.  You must prove your client’s injuries are legitimate and documented, by pointing to them in your demand letter, outlining every diagnosed injury.  If there are injuries that are not diagnosed with an ICD number, you must get that injury diagnosed by a doctor.

Practice Hint: ICD codes are usually found in the “Assessment” portion of a traditional SOAP note─but, if you can’t locate them in the chart notes, check the billing statements. ICD codes are required for health insurance reimbursement claims and therefore they can also be found on HCFA (Healthcare Finance Administration) health insurance claim forms.

Permanent impairment is important in a personal injury claim evaluation. The American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition dictates the amount of impairment of an individual subsequent to an injury.  (There are problems with the 6th Edition uncovered by the Iowa Workers Comp Task Force [since removed from the internet], which explains why the 6th Edition should not be admissible and should not be used for legal claims.)  In Spinal Injuries, Part III, DeShaw shares an important way to consider economic and noneconomic damages in any case with a permanent impairment.

Example of the Impact of Obtaining all ICD codes and Permanent Impairment Rating

Sinclair recalls a case that she and DeShaw consulted on after a claimant was t-boned.  The claimant’s vehicle flipped multiple times before coming to rest upside down in a large tree, suspended from the ground over a busy roadway. Although she did not lose consciousness, the driver suffered a mild traumatic brain injury (“mTBI”) from the collision, and then waited over an hour (while upside down, stuck in the tree) for emergency responders to extricate her from the vehicle.

She was later diagnosed with PTSD after suffering debilitating symptoms, including the inability to drive due to extreme fear and anxiety. One of the problems with the initial demand letter was that because the claimant was treated in a non-PIP state, the billings did not fully reflect all of the diagnoses in the case.  The two suggested the lawyer seek a narrative report from one of the claimant’s doctors, seeking all diagnoses and ICD codes. Second, although she was diagnosed with mTBI and a demonstrable shoulder injury as well, she didn’t seek very much treatment but for her PTSD symptoms.
After a low offer (well under $100k) from the corporate insurance carrier the new lawyer referred his client to a psychological specialist who used the AMA Guides® to provide a 10% Mental and Behavioral Disorders Impairment, after already receiving a permanent impairment rating using the Fifth Edition Guides for the shoulder injury, at the recommendation of DeShaw and Sinclair.
The case settled for policy limits of $1m a few weeks after the demand letter was sent. DeShaw’s expert advice concerning the discussion of traumatic brain injuries, permanent impairment, and loss of earning capacity in the demand letter, coupled with Charlette’s experience and expertise preparing demand packages tailored for Colossus, helped this lawyer settle his first case for a $1,000,000 policy limit, and gave him confidence and experience to bring to his subsequent cases.
It is assumed that the insurance adjuster who received the claim initially, did not review photographs of the vehicle suspended in the tree. Instead, they likely reviewed the property damage bill, which was surprisingly low for a roll-over accident, thanks to the large bushy tree catching the small SUV’s final impact - another great example of why you can’t rely on the vehicle damage repair bill to determine the value of a car accident case.


Making Duties Under Duress & Loss of Enjoyment of Life Claims

Duties Under Duress and Loss of Enjoyment of Life are two of the top five value drivers in insurance claim software used to evaluate over 90% of the auto claims in the United States, as well as in Canada and many other countries. DeShaw’s forms for Duties Under Duress and Loss of Enjoyment of Life including factors and subfactors that provide claim value are exclusively available on Trial Guides’ Colossus Lawyer Forms.

In order to make a Duties Under Duress claim for a computer claims evaluation, all of the following must apply:

  • The injured person must continue to perform the duty despite their pain;
  • The injured person must express the pain symptoms to their doctors, and a doctor must note it in the records;
  • The lawyer must make a specific claim setting forth the factors and subfactors in the claim, including the duration of the symptoms, and an explanation for why they continued to perform the duties, within the demand letter.

Loss of Enjoyment of Life occurs when a person is unable to perform a certain activity as a result of the injuries sustained in the car accident. Proper Loss of Enjoyment of Life claims require the following steps:

  • The injured person must be unable to perform the activity despite their pain;
  • The injured person’s doctors must note their inability to perform the activity, and also note it in their medical records;
  • The lawyer must make a specific claim, including the duration of the loss or diminished activity, and whether or not it is permanent, in the demand letter.

Aaron DeShaw’s Colossus Lawyer Forms provides client forms for duties under duress and loss of enjoyment of life, that allow a personal injury lawyer to collect this valuable information from their clients during intake.

DeShaw also produced Colossus Forms for Physicians, which include many other helpful forms for doctor’s that they can implement in their practice to better serve their injured patients with auto accident cases that are later evaluated by insurance claim software. We recommend these forms to all lawyers representing auto accident victims, as well as the physicians treating patients injured in a motor vehicle collision.

It’s also important to educate your client on the use of personal injury software programs that will be evaluating their claim, and why it is exceedingly important to discuss all of their injuries, their symptoms, and factors related to duties under duress and loss of enjoyment of life with their doctors. They must be in the chart notes and claimed in the demand letter in order for them to be provided value in their claim.

This rule in preparing for a plaintiff personal injury settlement cannot be over emphasized: If it isn’t supported in the medical records, it doesn’t belong in the demand letter. So, if you know the client has injuries, symptoms or has been impacted in ways not discussed in the medical records it is important to get a full evaluation by an expert witness capable of fully addressing these issues.

Don’t Be Discouraged by Pre-existing Injuries

Another case analysis Charlette and DeShaw discuss in their Trial Guides Demand Letter CLE provides a great example of how to use disfigurement and pre-existing conditions to increase the value of an auto injury claim:

A 16-year-old high school sophomore soccer athlete sustained her third concussion as a passenger in a vehicle that was rear ended.

While most would consider this a difficult case to settle, due to her two prior recent concussions playing soccer, pre-existing condition, and less extensive physical treatment, DeShaw represented her TBI using scientific research and visual aids about “second impact syndrome” - that there is a cumulative effect to these concussions that can exponentially increase brain injury symptoms, and that his client was subject to longer recovery time, persistent symptoms, as well as potentially increased lifetime risk of psychiatric and neurological problems such as Alzheimer’s. 

DeShaw also outlined, with brief narrative and a visual timeline of photos, the girl’s bloody forehead laceration (resulting from her boyfriend’s license plate, which was left sitting atop the vehicle’s passenger dashboard, before striking her in the face upon impact), as well as subsequent 3 cm scar in the middle of her eyes, which was somewhat akin to Harry Potters’ famous facial scarring. 

The fact that this claimant - an attractive young woman with a long life expectancy - suffered visible, permanent scarring to her face, increased the value of this claim, because DeShaw knew to make a separate monetary demand for the scarring within his demand letter, and he used photo representation to provide a compelling summary of the injury. While the photographs were unenhanced the insurer sent an adjustor to meet the client and view the scar in person. The case settled for policy limits before a lawsuit was filed.

This case study is a good example of why you shouldn’t be discouraged by your client’s pre-existing injuries, as an aggravation could actually increase the value of your claim if properly outlined in the demand letter.

Pre-existing conditions are very common in all types of personal injury cases. As discussed by leading Kentucky lawyer, Gary Johnson in Winning the Unwinnable Case, you can use “Judo Law” to turn what the defense believes is its best defense, into a strength in your case by embracing the fact that pre-existing conditions make the client more susceptible to injury, and more likely to have a permanent injury.  For more on the increased likelihood of injury and increased likelihood of permanent injury, see the medical literature in Dr. Arthur Croft’s Whiplash and Mild Traumatic Brain Injuries, or join the Trial Guides Spinal Injury Litigation Listserve to search the document library filled with medical literature on this issue and many other issues pertaining to spinal injury cases.  Keith Mitnik also addresses the issue of pre-existing in common sense ways that resonate with jurors (and maybe even insurance adjustors) in his books Don’t Eat the Bruises and Deeper Cuts. The way he frames the issue for trial can be used in your demand.

Practice Hint: When applicable, reference your state’s jury instruction regarding aggravation of pre-existing conditions, exacerbation of prior infirm conditions, or both. This helps remind the insurance adjuster that you plan on educating the jury on why this should not, and cannot, be held against the plaintiff in court, or reduce the amount of damages awarded.

10. Learn How to Try Cases Because You won’t get maximum value for your clients by settling every case

One thing is clear from internal claims manuals and interviews with former claims adjusters and claim supervisors; you will not get full value on claims if you don’t try cases.  This is the reason why Trial Guides started as a company with books and forms on settlement, and then evolved to teaching lawyers how to try cases. 

Non-protected depositions reveal that software programs used by insurers are implemented to save money, and usually are set up to intentionally underpay claims.  Then as settlement lawyers accept these smaller offers, the insurer “tunes” the system to pay less. 

Lawyers have been tracked by federal tax ID number for decades, and insurers keep track of lawyer’s trial reputation, settlement history and potentially much more.  So, even if you format your demand letters perfectly, you will still be getting underpaid on claims unless you either litigate cases yourself, or have an ongoing relationship with trial counsel that gets good outcomes. This becomes even more important as third party databases such as Premonition, gather data on every attorney and then share it between insurers via the bodily injury software systems.

Using the Colossus forms and formatting your demand letters for the insurance claim software being used by an insurer will almost certainly result in higher settlement offers.  But unless you are trying cases, you will never be offered a full and fair settlement value for your client’s cases.

Next: Writing Demand Letters as a Trial Lawyer

Demand letters sent by well-respected litigators may be more effective taking a very different approach. For a discussion of how successful trial lawyers can use methods in Nick Rowley and Courtney Rowley’s book Running with Bulls, visit this blog post.