Any article on Kentucky Serious Personal Injury and Kentucky Wrongful Death in Auto and Semi-Truck Cases must start with an analysis of what it takes to win these type of cases. Any analysis on winning a case would largely depend on your definition of what winning really means. I would argue that there are as many definitions of WINNING as there are claims themselves. However, any analysis would start at the end of the case and work backwards. There are essentially several ways you can win your case!
I. Settlement with the Insurance Company
Winning a Kentucky Personal Injury or Kentucky Wrongful Death Case is often defined by the Client and their Attorney after a careful examination of the Facts, Injuries and the Law. In its Infant State, your Case is really an Insurance Claim. Many of these Claims can be settled with the Insurance Company without the need of Formal Litigation or before your Claim becomes a Case with the aid of an Experienced Attorney. Your Attorney will build and present your Claim to the Insurance Company in much the same way that the Attorney would present your Case to a Jury at Trial.
The Insurance Company employs a Claims Adjuster that will evaluate your case and protect the interests of the Insurance Company. From the date that the Adjuster receives a written Letter of Representation from your Attorney, the Adjuster and your Attorney attempt to work together to resolve the claim. Although the Attorney and the Adjuster work together, most of the time this is in an Adversarial Manner as the Attorney is looking out for their Client and the Adjuster is protecting the assets of the Insurance Company.
I have worked with Numerous Insurance Adjusters on Claims and I consider many of these folks to be friends. However, I NEVER LET the spirit of cooperation and good-faith interfere with the TASK AT HAND, which is representing my client to the best of my ability. I feel that an Attorney must be Tough but Fair in their negotiations.
FACTS (OR WHAT HAPPENED?)
Once I meet with a potential Client, I begin the process of putting together the facts (Or What Happened). This is done by first taking a look at the Accident Report completed by the Investigating Police Officer. Most of the time the information contained in this Report is Accurate. However, there are other times when the information is not entirely accurate despite the best attempts of the Investigating Officer. Many times there is so much Activity at an Accident Site that a Police Officer acting alone or even with the assistance of Other Emergency Personel, cannot possibly examine all of the evidence or interview all of the witnesses. In this type of case it is IMPERATIVE that you have an Experienced Attorney who has handled this type of situation before and one who is used to dealing with Police Officers and Emergency Personel. Also, it is VERY IMPORTANT that the Client discuss the Accident Report with the Attorney and advise the Attorney of any INCONSISTENCIES in the Report.
The Accident Report tells the Attorney several things:
1. Time and Date of the Accident?
2. Who was involved?
3. Who was at Fault? In Ky, Unit One is usually who the Officer initially determines to be at Fault. The report will include any Contributing Factors to the Wreck.
4. Site of the Wreck, to include Weather and Road Conditions.
5. Extent of Damage, Availability of Photographs and whether in the Officer’s determination any of those involved were Under the Influence.
6. Names of the Insurance Company of each of the Parties.
After a careful examination of the Accident Report, I will decide if Key Witnesses need to be interviewed. Witnesses tend to forget as time goes by. In a contested case nothing can take the place of reliable Eye Witnesses. Good cases can be lost if the perceptions of these Eye Witnesses are not captured soon after the Accident (More on this Later). In addition I will make a request for the Official Police Photographs that detail the Accident Scene and the Damage.
In Kentucky, the Police Officer does not always take Photographs. If this happens, it is IMPORTANT that Friends or Family of the VICTIM take photographs of the Scene and the Damage.
Next, I will evaluate the key evidence at the Accident Scene to determine which evidence will need to be preserved. There are several factors to study. These include Skid Marks, Angles of Impact, Speed Limits, History of Wrecks, and the Automobiles involved. I will carefully examine each and decide whether in this situation we will need to hire an Accident Reconstructionist. A Reconstructionist will most often recreate the event to determine the speed and angles of the Automobiles involved. In addition, an Accident Reconstructionist can perform Computer Simulations and Animations that might assist the Attorney in Settling the Case or Winning at Trial. A decision to hire an Accident Reconstructionist is most effectively made, in my experience, within 30-60 days after the Accident. Sometimes the Investigating Police Agency will perform their own Accident Reconstruction.
There are certain situations when the Automobiles involved must be preserved. In most Kentucky Serious Injury and Kentucky Wrongful Death cases the Cars are destroyed or Totaled. Insurance Companies like to pay the parties for the Value of these Automobiles in order to settle the Property Damages Claim. They generally do this as fast as they can and then dispense with the cars. However, when the cars involved are key pieces of Evidence, they MUST be preserved. These Cars can become Key Exhibits at Trial and will likely be examined by an Accident Reconstructionist. There are also situations where the seatbelts, brakes or other equipment inside the Car malfunctions and will need to be kept in order to be tested.
When a Car, Seatbelt, brakes or other important evidence must be preserved, an EXPERIENCED ATTORNEY will normally store this Key Evidence. The Attorney will be able to document the “Chain of Command” of this Evidence so that it can be used to in the Client’s Claim or as ADMISSABLE Evidence in an eventual Lawsuit. This prevents Issues of Spoilage of Evidence and Lack of Chain of Command, which can sometimes limit or kill your Case.
I then detail the nature and severity of the Injuries. This includes the Collection of all Medical Reports and the Itemization of all Medical Bills. Many times the Client is involved in ongoing treatment and this information must be constantly updated and supplemented. There are strict legal requirements for obtaining this information. However, an Experienced Attorney will be able to collect and organize this Important Information in a way that best serves the Client.
If the Wreck results in a Wrongful Death, the Family of the Victim or the Attorney they hire must make a QUICK DECISION as to whether an Autopsy must be performed. There is also strict legal requirements in this situation that can be fully explained by an Experienced Attorney.
In a Serious Injury Claim, Pictures of the Injured must be taken as soon as practicable. The first thing that the Human Body does after a Serious Injury, is to start healing itself. If these pictures of the Nature and Extent of the Injuries are not captured on Film they can never be presented to an Adjuster or a Jury. I have had many experiences where a client comes to me 60-120 days after the Injury and wants me to take their claim. Most of the time they have failed to document this key piece of Evidence so that I can best represent them. Many times we have gone on to get Incredible Results but I often think about how much faster we could have settled or how much more the Client’s case could have been worth had we had the Photographs of the Client’s Injuries.
Part II will detail Settelment of Verdict After The Filing of a Suit