personal injury victims want the maximum compensation as soon as possible. One of the
best ways to achieve that goal is to send a strong settlement demand prior
to beginning litigation. Obtaining compensation without litigation provides
our client with their recovery sooner and also increases their recovery
by avoiding the expenses of litigation, which can be significant. While
an attorney must be ready to file a lawsuit and take a case to trial,
it is usually better for the client to attempt to settle before proceeding to court.
In nearly all cases, the only way to obtain a settlement without filing
a lawsuit is by making a settlement demand. This is because prior to filing
a lawsuit, a settlement demand is the injured victim’s best opportunity
to go on the record and explain the accident, the resulting injuries,
and the effect of those injuries on the victim’s life, including
medical treatment, lost wages, and pain and suffering. Putting these things
in a well-organized and persuasive letter allows a plaintiff’s attorney
to be sure that the defendant, his or her insurance company, and any lawyers
hear directly about the plaintiff’s case. Phone calls and recorded
statements can be helpful, but are rarely sufficient by themselves.
However, a poorly drafted settlement demand can damage a case. For example,
a settlement demand that demands too little can result in an inadequate
offer while one that makes an unreasonably high demand will accomplish
nothing, lead the defendant to think that the plaintiff is unknowledgeable
or being unreasonable, and lead to litigation. Thus, a demand letter must
be written with care and only sent when a plaintiff has the information
he needs to value his case.
There are several elements of a good demand letter. First, a victim must
clearly explain why the responsible party is responsible. This includes
attaching police reports, photographs and any other evidence that proves
that the responsible party was negligent. It is vital that the injured
victim and his or her attorney understand not only what happened, but
the law that governs the accident. The settlement demand must highlight
all favorable facts and law and attempt to deal with any unfavorable facts and law.
Second, a settlement demand must include documentation of all the injuries
the victim suffered. This includes itemized billing statements and a complete
set of medical records for all hospitals, doctors and other medical providers.
If a bill or record is not included in the demand, any offer will likely
not be maximized. A victim must also explain and calculate any claim for
missed time from work or other economic losses. A victim may want to include
tax returns, signed statements by employers, and any other evidence documenting
any time missed. Finally, any other out of pocket expense – car
repairs, damaged personal property, taxi costs, decrease in value of damaged
property – must be listed, explained and, where possible, documented.
Third, drafting a settlement demand requires judgment by the attorney.
It can often be helpful to withhold certain information from the initial
demand in order to shield it from disclosure or to allow the responsible
party (or their insurance company) to go on the record without the benefit
of that information. Sometimes the victim’s attorney can catch the
negligent party making a false statement or taking an unreasonable position,
which can help in settlement discussions. Facebook posts and witness statements,
in particular, may be worth withholding in order to defeat an initial
denial of a claim.
Fourth, while a lawyer should draft a settlement demand, the injured victim
should be involved. The victim was actually involved in the accident and
actually suffered the injuries, so their input is crucial to providing
a comprehensive claim and obtaining the highest settlement possible.
Finally, timing is crucial. A plaintiff or attorney who sends a settlement
demand without being asked for one or before the parties are in a position
to understand the case and their respective positions risks appearing
too eager to settle. Defendants and their insurers will then respond with
low offers, thinking the plaintiff is desperate to settle.
To consult with a Washington, D.C. personal injury lawyer at Simeone &
Miller, LLP, please call (202) 888-0872.