This page is intended to be a definitive resource for every question you might have about personal injury law in the State of North Carolina. If you have been injured in an auto accident, a trucking accident, from using a defective product, or in any other manner, this page will help answer some of your most common questions about personal injury.
What is a Personal Injury Case?
A personal injury case is a specific type of legal case. Just like a divorce case or a criminal case, a personal injury case arises when someone has been injured through the fault of another person or, in certain situations, a business entity. And just luck other legal matters, there are lawyers who work primarily with personal injury claimants to help them stand up to the insurance companies and recover the compensation they are rightfully owed.
Although they may seem simple at first glance (i.e. I was injured and the insurance company needs to pay my damages), personal injury matters can be extremely complicated and nuanced. In addition, many personal injury cases are extremely fact dependent, so a lawyer is needed to develop evidence that can be used to tell your story in a way that you may not be able to do on your own.
Not only that, but personal injury cases have a number of pitfalls that aren’t present in other types of legal cases. For example, as a claimant you may need to overcome a defense of “contributory negligence”, and will need to fight an uphill battle against a very well trained, funded and prepared insurance company machine whose sole goal in this process is to resolve your case as quickly as possible while paying you as little money as possible.
For that reason, we have developed this website as a wealth of information about the personal injury claims process and how to find a lawyer that can help you achieve the best possible result in your case.
The Process for Personal Injury Claims
On a big picture, macro level, the personal injury claims process is made up of 5-7 different stages, depending on your case. Some cases may only make it through the first 3 stages, while others will need to go through all 7. In some cases, we may decide to bypass settlement negotiations altogether and go straight to filing a lawsuit. What you need to understand from this is that every case is unique and different, with it’s own path towards resolution.
The 7 typical stages are:
- Initial Injury and Filing a Claim
- Medical Treatment and Information Gathering
- Initial Settlement Negotiations
- Filing a Lawsuit
During each of these stages, there are different goals and projected outcomes. As the claimant or “plaintiff”, you will have certain responsibilities and your personal injury lawyer will have another set of responsibilities. Here is a synopsis of what should occur during each of these stages.
Initial Injury and Filing a Claim
After you initially suffer your injury, you will likely file a claim on your own, especially if you were involved in a motor vehicle accident (the most common type of personal injury claim). In other situations, it may not be as obvious how to handle the claim, so you will need the help of a lawyer to get the ball rolling. When you hire our firm as your personal injury lawyer, we will begin the initial process of investigating your claims, determining what (if any) insurance is available to pay your claim, and send out notices to all possible defendants to let them know of our involvement. If you have already notified the insurance company of the claim, that is ok, but you should NOT give a recorded statement, regardless of what the insurance company tells you to get you to do so. Once you have a lawyer, they should no longer be speaking with you about the case.
Medical Treatment and Information Gathering
During stage 2 of your case, your sole responsibility is to heal your body. You must attend all of your medical appointments and follow the recommendations of your doctors. We will be following up with you regularly while you are treating to makes sure your treatment stays on track. The last thing you want to happen is for there to be an extended gap in treatment – the insurance company could use that against you.
While you are treating for your injuries, we will continue to investigate your case. We will search for witnesses, photograph the accident scene, hire experts if necessary, and order copies of your police report and other related documents. Our goal at this stage is to fully “work up” your file so that when you are finished treating, we will be prepared to send out a demand package to the insurance company. Incidentally, this process is the same whether you were involved in an auto accident or if you have a family member that was a victim of nursing home abuse.
Before we send out the demand package, we will prepare a detailed written settlement analysis to go over with you and make sure we are all on the same page in terms of possible settlement values.
Initial Settlement Negotiations
After sending out the demand package, you will continue to seek medical treatment as necessary. We will exchange settlement offers with the insurance company, keeping you informed as to the status of the negotiations throughout the process.
Filing a Lawsuit
If we decide that ongoing settlement negotiations will not be productive, then we will decide whether a lawsuit makes sense. In most cases, the answer will be yes, otherwise we would have reached a settlement prior to filing a lawsuit. But since filling a lawsuit is a big decision, it is not one that we take lightly. However, sometimes a lawsuit is necessary to force the insurance company to do the right thing in your case.
After a lawsuit is filed, we will go through a period called discovery. During this time, we will submit a list of written questions to the defendant, and they are likely to submit a list of written questions to you. Both parties may exchange certain documents, and it is possible that we may need to take the deposition of the defendant and other witnesses. (This is a formal interview under oath in the presence of a court reporter). The defense attorney may want to take your deposition. After discovery has been completed, we will begin preparing for a trial date.
After discovery has been completed, we will conduct a jury trial in North Carolina, typically in the county where the injury occurred. Depending on the complexity of your case and the number of witnesses, a trial could take anywhere from a couple days to several weeks.
One of the nice things about a trial is that one way or another, you know your case will be over. As personal injury lawyers, we don’t get paid unless we are able to recover a financial settlement for you. That, combined with the fact that we spend a lot of money to try a personal injury case, means that we want to be fairly certain we will be able to win your case before we file a lawsuit. We conduct this analysis months ahead of time when we prepare the settlement analysis letter before we send out the demand package.
Frequently, an insurance company will change their previously immovable “final offer” after a lawsuit has been filed. Every case that starts down the path of a trial doesn’t necessarily get all the way there. Many personal injury cases settle on the courthouse steps.
How do Personal Injury Cases Work?
When we are evaluating a personal injury case, we are looking at several factors. Were you injured and was someone responsible or “liable” for that injury? Although there are many legal requirements for a personal injury claim, the most important elements are liability and damages.
™If you have been injured and you are wondering whether you have a personal injury claim, you must first ask yourself, “is someone to blame for your injury?” If you were the person who caused your own injuries, then the answer (in North Carolina anyway) is typically “no”. Conversely, if someone acted negligently, but they didn’t actually cause an accident or injure you, then there is no claim for personal injuries.
Just this past weekend I was driving my son to a play date and saw an incredible case of road rage. A car was weaving in and out of traffic on the highway and sporadically slamming on his brakes. Was he being negligent? Absolutely. But nobody (thankfully) was hurt as a result, therefore there is no personal injury claim.
So if you are reading this trying to figure out whether you have a personal injury claim, think first whether you or someone you love suffered any damages, and then determine whether someone is to blame for the injuries. If the answer to both of those questions is “yes”, then you should consider filing a personal injury claim or calling a lawyer to help you.
How Do You File a Personal Injury Claim?
Filing a personal injury claim is actually a pretty simple process. If you were involved in a car crash, you would simply call up the at-fault driver’s insurance company and tell them that you were injured by their “insured”, the location of the accident, and that you are seeking medical treatment. Don’t tell them anything more than that. Don’t tell them that you are “ok”, even though they will ask. Tell them that you aren’t sure and you are going to the doctor/emergency room/etc.
If you or someone you love were injured in some other fashion, you may need to seek out a personal injury lawyer to help you. This is because sometimes is is not always clear who is at fault, or where the insurance is. Several years ago I was involved in a case where we had to file claims against 6 different defendants so that we could determine which entity was to blame for the accident. Ultimately, we were able to find the at fault defendant, but until we could, all 6 defendants denied the claim. We were forced to file a lawsuit and depose everyone to figure out who was truly to blame for the accident.
So if you aren’t sure who is to blame for your injuries, or you aren’t comfortable filing a claim on your own, you should seek out the help of a personal injury lawyer to take care of this for you.
When Should You File a Personal Injury Claim?
The question of when you should file your personal injury claim is an interesting one. The answer will depend in large part on the type of injuries you have sustained and the accident that caused your injuries. Generally speaking, if you have been in an auto accident or a trucking accident, you will want to call both your insurance company and the insurance company for the at-fault drive as soon as possible after the accident, typically within 24-48 hours.
However, if you have sustained injuries as a result of medical malpractice, nursing home neglect or because of a defective product, you may not even realize you sustained any injuries for some time after the event that would have caused you harm. Generally speaking, the more complicated the potential case, the sooner you will want to retain a personal injury lawyer to help you so that they can properly investigate your claim and research potential defendants and determine who to present the claim to.
If you have suffered an immediate injury in some other manner than a car crash, (a slip and fall, for example) you will want to make sure an accident report is prepared that documents what happened for your records. Since cell phones with cameras are ubiquitous now, you will want to make sure you have photographed or videotaped the scene of the accident, as well as any injuries you sustained (if possible).
Personal Injury Damages
We have previously written a substantial post on the various types of personal injury damages, but here is a quick summary. There are two main types of damages in a personal injury case, special damages and general damages.
Special damages are your out of pocket expenses, such as your medical bills, prescriptions, lost compensation, etc. There can be past damages, in other words the income you have already lost as well as the medical bills you have already incurred, as well as future damages. If you anticipate substantial future damages, such as extended time away from work, future surgeries, and other long term medical bills, it is likely that you will need an expert witness to review your file and provide an opinion as to what your future damages will be. A personal injury lawyer can assist you in retaining these experts.
General damages are also known as pain and suffering. This is the mental and physical anguish you endured as a result of your injuries. Like special damages, general damages can be both past and future damages. If you suffer from anxiety, depression, PTSD, and other related mental illnesses as a result of your accident, you will need an expert witness to explain your damages and what those damages will require in terms of compensation. Depending on the nature and extent of your injuries, general damages can vary greatly from case to case.
How Long Will My Personal Injury Claim Take?
The time is takes to resolve a personal injury claim will depend on several factors, the biggest one being the nature and extent of your injuries. We do not like to start settlement negotiations until our client has reached what is called MMI or “maximum medical improvement”.
Until a claimant has plateaued with their medical treatment, we can’t say for sure what the permanent effect of the injury will be on them. Will they have a disability? Will the pain go away? Are there going to be long term impacts on their ability to earn a living or enjoy their daily lives?
We can’t answer these questions while you are still receiving your medical treatment and therapy.
However, in most cases, the medical treatment will last anywhere from 3-9 months. Once medical treatment has completed, it may take another 3-6 months to reach a settlement. If the insurance company digs in and a lawsuit is necessary, it will take even longer. However, in general, a typical case will take anywhere from 1-2 years to resolve.
How Will Your Personal Injury Settlement Affect Your SSDI?
SSDI, otherwise known as “social security disability income” is a federal program that is funded through payroll taxes. If you have accumulated sufficient work credits and become disabled, you may qualify for SSDI. Once you qualify for SSDI, you will also receive Medicare.
However, if you are already on SSDI when you become injured, receiving a personal injury settlement would not directly impact your SSDI benefits. However, if Medicare paid for your medical treatment related to your injuries, then the Federal Government will require that you pay them back out of your settlement proceeds.
This is what is known as a “Medicare Lien” and is very common in personal injury cases.
On the other hand, if you are receiving SSI, or supplemental security income, then receiving a personal injury settlement that is not properly structured could effectively terminate your SSI. Not only would this cut off your monthly checks, but it would also cause you to lose Medicaid, which is available to recipients of SSI. There are various options available to SSI recipients who will be receiving a personal injury settlement, including putting in place a special needs trust to hold the settlement proceeds. However, you must be aware of this potential issue so as to avoid the problem in the first place.
Are Personal Injury Awards Taxable as Income?
Generally speaking, personal injury awards are not considered taxable income and you will not need to report the settlement on your tax return. This is because personal injury proceeds are considered “compensatory” and therefore not taxable as income.
However, there are several notable exceptions that you need to be aware of and consider:
- Medical Expenses that you previously deducted. If you deducted any of your medical expenses in a previous year and received a tax benefit as a result, you must include the amount that you deducted as income once you receive your settlement.
- Lost Wages. If you receive a settlement for lost wages or profits from a trade or business, the portion of the proceeds attributable to the carrying on of your trade or business is considered net earnings and is subject to self-employment tax.
- Interest. Interest on any settlement amount is generally considered “interest income” and therefore subject to Federal tax.
- Punitive Damages. Although rare, punitive damages are intended to punish the defendant, not compensate you. If you receive punitive damages, they are taxable as income and need to be reported as such.
So no, for many people their personal injury settlement will not be taxable. But understand that there are exceptions and if you have questions you should contact a personal injury lawyer or tax advisor for further clarification.
Can a Personal Injury Case be Reopened Later?
Rather than go into the whole “it’s possible” explanation, (because it is possible to reopen a personal injury settlement after the fact, but it is extremely rare and you should not rely on this happening ever), I’ll just say that and emphatic “NO”, you may not reopen your personal injury case after the fact.
Once you sign the settlement release and waiver from the insurance company, your case is closed. If you realize after the fact that your injuries are more severe than you thought, or you decide to run to Vegas and gamble your entire settlement away, then that is too bad. What’s done is done and you will not be able to reopen your personal injury lawsuit later.
How Do Personal Injury Lawyers Get Paid?
You’ve probably heard the common phrase “we don’t get paid unless you get paid”, and for almost all personal injury cases, that is exactly how it works. One of the great things about personal injury cases is that we, as lawyers, can help people that otherwise would not be able to afford legal help. We can do this by charging what is called a “contingent fee”.
A contingent fee is basically a fee that is contingent on the result we obtain for you. If we secure you a settlement, we get to keep a percentage of that settlement as our fee. Depending on the firm, this fee can vary from 33 ⅓% to 40%. That’s what MOST law firms charge.
At The Hart Law Firm, we believe that in today’s technology age, lawyers no longer need to charge a ⅓ fee. That’s why we charge a 25% fee if your case settles prior to filing a lawsuit, 30% if we need to file a lawsuit, and 35% if your case settles within 90 days of trial.
In addition, if you come to us with a settlement offer in hand, we will never charge you on the amount that you have already received as an offer.
What do Personal Injury Lawyers Do?
There seems to be a common misconception among the general public that personal injury lawyers do nothing more than write a few letters to an insurance company and collect a big settlement check. This is a myth that is perpetuated by the insurance company lobby that would like nothing more than for all plaintiff’s lawyers to go out of business so that they can continue to take advantage of unsuspecting claimants.
The insurance companies would like you to believe that by hiring a lawyer, you are costing yourself more money in contingent fees than if you just handled the case yourself. In reality, a study conducted by the Insurance Research Council in 2004 (and this is an organization created and funded by the insurance industry) found that claimants who hired a lawyer received three and a half times the amount of money for their settlement as claimants who did not have lawyers.
But aside from recovering more money for their clients, what else do personal injury lawyers do? Here’s a quick list:
- Meet with and counsel their clients
- Answer questions whenever a client calls to discuss their case
- Investigates the claim, finds witnesses, gathers evidence to prepare for trial.
- Orders and reviews medical records and bills
- Hires expert witnesses that may be required for trial (and pays their bill)
- Drafts and prepares demand packages to initial settlement negotiations.
- Handles all communications with the insurance company and the adjuster so that you don’t have to.
- Coaches the client through the process and makes sure they stay on track with their medical treatment, doctor recommendations, and appointments.
- Prepares a written analysis of the facts of the case, damages, and expected settlement range.
- Drafts and files a lawsuit if necessary.
- Conducts discovery, and takes witness depositions. Defends your deposition if necessary.
- Prepares trial exhibits, notebooks, etc.
- Prepares the client’s testimony.
- Prepares the client for cross-examination.
- Conducts jury selection and presents your case at trial.
- Reviews and edits settlement paperwork.
- Negotiates any medical liens and reimbursements.
- Disburses final settlement amounts to client, medical providers, etc.
Can I Handle a Personal Injury Case Without a Lawyer?
Whether or not you can handle your own personal injury case without the help of a lawyer depends on the type of case, the extent of your injuries, and you. The more complicated your case, and the more extensive your injuries, then the harder it will be for you to adequately represent yourself.
However, if your damages are minor (less than $2,000) and you didn’t miss more than a week of work, then you might be able to represent yourself. We have put together an entire online guide (no email required) to share with you everything you need to represent yourself, as well as an e-book that you can download to review the specifics of what it will take to represent yourself in an auto accident case.