Welcome to The Legal Truth, the podcast created to provide you general legal information about South Carolina law, lawyers and the legal process, and hopefully prevent you from being surprised by the unexpected. We will answer many of the questions I've been asked during the past 35 years about South Carolina personal injury claims and workers' compensation claims. We'll also discuss existing laws and propose changes in the law and how they affect you. My name is Dirk Derrick. I'm the founder of the Derrick Law Firm, and I'm your host.
Please see required ethics disclaimers in show notes.
Welcome to another episode of the Legal Truth Podcast. I'm Dirk Derrick. I'm here with Pearl Carey, the co-host of the podcast. Good morning, Pearl. How are you doing?
Good morning. I'm great. How are you? I'm doing
Fine. Yay, I'm doing fine. We're shooting this podcast on Wednesday the day we usually do. Have you had a good week so far?
I've had a great week. How's your week been?
It's been busy. Good. But it's been good.
Right.
The podcast today is entitled The Truth About Whether You Need a Personal Injury Attorney: 10 questions to answer. I think this is a question that a lot of people ask when they have a claim, an insurance claim arising out of an injury. So we don't go through and talk about it and we talk about the 10 questions they should ask themselves and determine for themselves whether or not they need an attorney. We get a lot of calls where we talk to people and tell 'em they don't need it, and we'll try to give 'em some free advice on how to handle the case themselves if it's that kind of case.
Makes sense. Well, I'm excited to talk about it today. Okay, so question number one, what is the kind of the first step that someone needs to take in order to determine if they need an attorney for their case or not?
I think that the first thing you do is decide whether or not you're damaged to a point where you would need an attorney to build a case. Okay. Every case depends on whether there's damages and injuries and there's both actual damages and there's punitive damages. So actual damages are actual harms that people sustain punitive damages or damages awarded to punish the recklessness of the at fault party. Okay. So the first assessment or the first question they would need to ask is, is this the type of case that there's actually actual damages? Not what could have happened to me, but what actually happened to me, or it's just the kind of case where someone was reckless, they were speeding, they were distracted by a phone, they were intoxicated. The more damages someone has, the more likely they'll need an attorney to build that case unless they're comfortable doing a lot of footwork and a lot of building of the case. I guess what I'm going to explain in these questions are the things that attorneys do for people. And so the question's going to be at each one of these steps is the person who's been injured comfortable doing those things themselves. So the first thing is if you're damaged, if you're not damaged and the person who caused the accident or the crash was not doing anything reckless, then you would not need an attorney. There'd be no actual damages and there'd be no punitive damages.
So what might be an example of a case where someone wasn't really damaged or damaged enough in order to contact an attorney?
There's people who call in and there's been a fender bender. Somebody's hit 'em in the rear, they were sore for two or three days, they're fine, they don't have any ongoing problems. The person who hit him just didn't stop in time, but they did not appear to be distracted or intoxicated or doing anything reckless in that case. And they've maybe followed up with the doctor the next day just to make sure they were okay. And the doctor says, you're fine. In that case, it's not enough actual punitive damages for attorney to get involved, but if someone called with those facts, we would explain to 'em, here's what you need to do, get the bill together, send it to the other party's insurance company and get the bill compensated or paid. But you probably wouldn't need an attorney in that situation.
Okay. Makes sense. So let's say I was in maybe a fender bender and I don't have significant injuries or my injuries don't last that long, but I may have a lot of money and medical bills that I need to pay. So would that be a significant case that an attorney might want to take on?
Yeah, those are the damages I'm talking about. I'm saying are there actual damages and are there punitive damages? In that case, if there's a lot of medical bills, those are actual damages. So even though the pain and suffering and the life altering nature of the injury may be shortened because the medical bills are high, you may want to get an attorney involved. Okay. A lot of times in that case, there's cases where we got these huge medical bills for a short amount of treatment and limited insurance coverage where most of our job is getting medical providers to reduce the bills and liens, reduce so that the client can actually receive some of the money from the auto insurance coverage
Or financially recover if not
Physically. So those kind of cases, if you have a short duration of injury, but you got pretty good medical bills and if you have a short duration of treatment, but you got punitive conduct, you got reckless conduct, somebody hit you that was drunk, somebody hit you that was reckless, distracted, speeding. Those cases have value even though the lasting effect of the injury is not very long. Got it. Those cases, an attorney can help you to maximize recovery in those types of cases.
Okay. And so what would you say is the second question someone should ask themselves before hiring an attorney?
I think you get down to what someone's willing to do. We've talked on some other podcast, somebody says, Hey, do you need a contractor to build a house? Well, no. You can build your own house if you want to. Maybe you can do your own surgery. So it's how much comfort someone has doing the things that we do to get the real value for our clients and get it as fast as possible. The second question they would ask themselves is, do they have the knowledge and capability of doing the investigation to find all the facts that increase value for the claim to preserve all the evidence before the evidence disappears or witnesses to disappear? The value of cases are determined by facts, and it is very, very important that when an incident occurs that all the facts surrounding that and all the witnesses who have any information
Are preserved.
Are preserved. Right. Because if they disappear, no matter what the truth is, it's what you can prove. yeah. And so from our standpoint, we investigate within 24 hours, private investigator on it. We want photos of all the vehicles, skid marks, surveillance. Surveillance cameras are in a lot of places now, but they overwrite themselves after a period. So you have to get them quickly. If something happens inside of an establishment we want to preserve, we send a letter of preservation to the establishment to preserve the video of what happened. So there's a lot of things we're doing early on to preserve evidence and witnesses. So the potential party needs to ask himself or herself, am I comfortable doing those investigations to preserve all the evidence necessary to get a fair value for my claim?
And are there some things in terms of preservation that an average civilian isn't allowed to do because they're not an attorney in terms of investigation? Or would a civilian be able to send a letter of preservation to a bar in terms of a dream shop case or
They could send a letter of preservation? They would. That's something that most people don't have experience doing. What needs to be in the preservation letter, the preservation letters, the leverage it provides is if that case ends up in litigation down the road and these people have gotten rid of evidence, the judge will instruct the jury that the jury can assume that the evidence was bad for 'em if they find that they got rid of evidence after receiving a letter of preservation. So that's leverage to try to make them hold onto that evidence until a lawsuit can be filed and we can actually receive it through the legal process.
So the first question that you asked was whether or not someone has a lot of damages to go off of in terms of their case. And then the second question was, if they're able to complete an investigation by themself, what would you say is the third important question someone needs to ask before hiring an attorney for their case?
First they have to ask themselves if they're familiar with the law, whether they want to learn the law and the law that determines whether or not they have a valid cause of action and whether or not they want to learn the law of the different damages that are allowed in South Carolina. So that knowledge, if someone wants to go and learn that, do the studying of statutes and case law.
So much fun,
So much fun. If they want to learn that they feel comfortable doing that and they could do it themselves. They make us go to school three years to learn all that stuff. I think they can shorten that, but they do make us go three years. And so it's the same thing as a contractor, have a knowledge of how to build a solid house versus me build a house. My wife would to leave me if I built our house
Contractor.
So whether or not they have the knowledge or want to obtain the knowledge or the law and what is needed.
Got it. So let's say someone is willing to do their own investigation and maybe they are willing to do a crash course in South Carolina law and they would like to pursue them-their case themselves. Is there a question that comes after that that they need to consider before deciding whether or not they need an attorney?
I'd say the fourth question is if they want to deal with the insurance industry and the insurance adjusters. I always feel sorry for people who are dealing with the insurance industry before we get involved, hoping they don't make a mistake before they get involved.
Talk to the wrong people, say the wrong thing.
Yeah. There's two things that the insurance industry likes to do. When people are injured, they'd like to take recorded statements from 'em and they want you to sign a HIPAA form to allow them to go through your medical records. Oh, now they say the HIPAA form is to allow them to get your medical records and your medical bills. And the sworn statement is to find out what happened. That sounds pretty reasonable. Where I've seen that hurt people is if they give a statement and they're not clear, they don't finish a thought. They're not thinking, if I don't say this exactly right, some defense lawyer a year from now maybe grill on me about this statement,
Can use it against me
And use it against and reduce the value of their claim. So I usually let insurance companies take statements from my clients, but I'm there to make sure it's clear and that if you're asking me questions, your insurance adjuster, you're asking me questions, how far were you away from the intersection when you first saw my client pulling out in front of you? And I say, I don't know. Um, And I'm thinking, and then you go to the next question,
I cannot, That probably doesn't look too good.
In the transcript, it's going to say, how far was it away? And you say, I don't know.
Oh, gotcha. So they may put down that you don't know wrong.
They can't see that we're conversing. They can't see, I'm trying to think about something to come up with an answer.
They just get the transcript.
It's just a transcript. So the clarity of that needs to make, you got to be clear about it. Now if you don't know, you don't know, but we want to make sure that when our client says something, it's what they want to say and mean to say, and it's not taken out of context.
Got it.
The second thing is the HIPAA forms. What people usually don't understand is that once you sign it, they can go back and look all through your medical records.
So through everything
And understand what they do for their job is they're trying to look back to see if there's anything they can blame for the same problems you're having now.
So perhaps a prior injury.
Prior injury, and you're just giving them ammunition to reduce your claim.
So you're saying that having an attorney in the room and hiring an attorney for your case can kind of help mitigate some of those concerns when speaking to insurance adjusters?
Well, it keeps people from making those two mistakes, and both of those mistakes can be deadly. I mean, they can take your transcript of your statement and deny liability based on something you say. Wow. Most people just don't understand the importance of the details, what they're saying and the consequences that they say it the wrong way. So I think the fourth question is, are they comfortable dealing with those issues in the insurance adjuster?
So what would you say is the fifth important question someone needs to ask themself before handling their own case?
The fifth would be whether or not they know how to properly evaluate a claim. A lot of times there's word on the street, there's two or three times medical bills, that's the of a claim. And there small cases, I was talking about the first question about whether you've been damaged, if you don't need a lawyer, if it's damage, but maybe it is, you can use a multiple in that case where there's no real actual damages or very little, but any kind of case that has any substantial part of it, that's not how you determine the value of a complaint. So someone has to ask themselves if they know how to value a claim. We value claims based on what a jury would give someone. Of course, we've talked about focus groups and that's done so many of 'em because what I have found after 30 years of practicing law that lawyers don't know how to evaluate claims. What we thought the value of the claim was based on what insurance companies had paid in the past or what somebody else got at court was not a very good way to evaluate claims.
And that's after 30 years. So someone coming into it fresh might not.
Yeah, you got to ask them, do I know how to evaluate claims? There's some people, it's a small claim and they want to make some quick money and they just take what the insurance company gives 'em. And that's fine if that's what they want to do. But the evaluation of a claim and the facts that determine the value, you need to ask yourself, do you know what those are? There's a lot of them. It's not just medical bills. It's not just lost wages. It's not just how the wreck happened, if the plaintiff was doing anything wrong, was the defendant reckless? And there's all these elements that come into play
And each case is different. Like we said in our prior podcasts.
I mean even I just celebrated my 35th year practicing law.
Congratulations. Yes.
And still we get new cases and we run it by a focus group right because after 35 years, I do not know what the value of that real value of that claim is because the value is determined by juries and it's determined by people who aren't lawyers, who aren't insurance adjusters, who aren't defense lawyers, and who aren't the injured party
Groups of various third parties.
So probably that question is, and they know how to value a claim, and are they willing to settle a case without fully understanding and working up the case to get the full value.
So if someone determines that they are capable of finding out the real value of their claim by themself, what's the following step,
Following step be whether or not they're feel comfortable in building the case? We're talking about getting evidence and we're talking about determining what evidence is going to determine value. But then you have to build the case
And that's part of putting all the elements together. Correct.
You have learned Pearl in podcast work,
Basically an attorney.
It is. It's putting all the elements together. We've compared it to a contractor. You have all these elements go in the house and the value of that house is going to be determined by the elements, the facts of the case, but also who installs the elements in the house, whether I install the marble counter or whether someone who knows what they're doing, install counter. Same thing with cases. There's a lot of parts of cases when we build that needs an expert to install. One example is a doctor, you have to prove that you were injured by the incident and that the injury was caused by the incident and the medical bills were incurred because of the incident. And in court we need a doctor to testify to that. The doctor has to be able to say that based upon a reasonable degree of medical certainty, it is more likely right than wrong that this incident caused this injury, caused the need for this treatment and will continue to cause these problems in the future if somebody's having those problems.
So you have to be able to get a doctor on your side to
Speak. The experts needed to build your case. Got it. Same thing with future lost wages, and whether somebody has a loss of earning capacity, we get a vocational expert who has to come in and testify as an expert as to why someone's earning capacity has been lowered based upon the limitations that they now have because of an injury. So it's not just finding out the facts that somebody has a medical condition or that someone now has lost some earning capacity. You have to build those cases with people who the court finds can lay a proper foundation. So a lot of those elements require expert testimony. Got it. So the question or potential is do they want to take that on? Do they want to take on the task of trying to build their case with the facts, with the witnesses, finding the right witnesses to say, talk to all the witnesses, getting affidavits, getting what they need, and then building the case with experts as needed in order to get the real value.
So if someone does determine, you know what, I'm ready to put all these pieces together and build my case and I'm ready to go. What would you say is the next question someone needs to ask Theself about? In their case?
Do they want to work for the DAR law firm?
That's a good question. You're hired.
The next question would be if they felt they could build their own case, is do they feel comfortable in knowing they have everything that adds value to a case In South Carolina? There are many, many things that add value. It can be a type of person that the plaintiff is the type of person,
Character.
Character that adds value to cases. People don't think about it. The character of the defendant adds or to subtracts value because they affect how juries think about people, the integrity, their credibility,
Everything's on the line,
Their past medical records. Can they explain past medical expenses? I mean medical records or injuries, whether or not they got well, can they bring the medical records up to show that there's a huge gap? They were doing fine for 10 years after an accident 10 years ago.
So after someone evaluates that they are ready to build their claim by themself, what is the seventh question that they need to ask themself before proceeding with their own case?
Seventh would be whether or not they feel comfortable negotiating the settlement of a case. Got it. Whether an insurance company or a defense lawyer and that they were comfortable with the first six, they may be comfortable with negotiating negotiations can be frustrating, can be drug out. And as attorneys, we're always building leverage for our clients leverage to negotiate. Understand the insurance adjuster job is to hold onto as much money as possible to serve their shareholders.
Absolutely.
So the way to get them to pay your claim is to not only prove the value, but prove leverage the truth and leverage that they may lose more money in the future if they don't pay you now. So if they're comfortable negotiating, they feel they can apply leverage that increases the risk on the insurance company and they will negotiate their own case.
Yeah, absolutely. And so going off of that, after someone maybe does successfully negotiate their case, what would be the eighth step that someone needs to take or question that they need to ask themselves.
Whether or not they have knowledge on how to settle cases? Settlement of cases. You have paperwork and paperwork has meaning. So whatever documents you sign when you're selling a part or all of your claim have legal meaning. So for example, I've had people who settle insurance companies offer firm $600 early on because they think they're fine. They sign it, they find out they got something that was not diagnosed early. They want to reopen. They've settled the case. So they have signed a document with an insurance company that has waived any future payments.
Oh no.
In South Carolina, the first insurance we usually go after is liability insurance car or on the entity that caused the injury. Sometimes the damages exceed that coverage. If they say, we'll pay you all the coverage. If you sign this release and you sign the release, you now have prevented yourself from going after other coverage. That's it. That's it. Yeah. So we have something called the covenant not to execute and allows us to sign it, take that first policy and still pursue further recovery that a lay person, somebody who doesn't work in the legal field wouldn't know that. But people can and have waived future benefits by signing the wrong document
And just by not knowing,
They need to know that they're comfortable with what kind of documents they can and cannot sign without messing themselves up.
So let's say someone's comfortable with that, they're ready to sign a covenant not to execute. They know all of this stuff. What would you say is the ninth question that someone needs to ask themself about their case at this point?
I think the ninth question. If you have damages, I think the question they need to ask is, and I think a lot of people ask this question, am I going to get more money with a lawyer or by handling it myself? And that's a very fair question. If I was not attorney, I asked myself that question, right? There's been some studies done, I'm not quoted because I don't know, but they can Google how much of an increase a typical personal injury claimant gets with the use of an attorney versus doing
It by themselves.
And it's because of the last 10 questions we just talked about. Sometimes people don't know what lawyers are doing or if they're doing anything. There's a lot that goes into building cases.
Absolutely.
So they need to ask it. They need to research what the research shows 'em as far as what people get on their own versus with an attorney. And it's not to come down to what they're comfortable with.
So it obviously can vary. Yeah.
Understand that if you're not an attorney and you're negotiating, you have a limited threat to the insurance industry. They know before they ever got to pay you a dime, you got to get a jury verdict
So they can drag out litigation
Well before. The only way you can make them pay you is a jury verdict. And right now you're negotiating with somebody who doesn't know how to practice law
And they know that. They know that. Yeah.
So it's not unusual. They play chicken with people. They offer 'em 10%, 20%, 30% of the value to see if they can get 'em to go away. And it happens to non-lawyers. It happens to lawyers that they know take the case to trial.
Oh, yeah.
So if you do not have the ability to build a case and try a case, the risk to them is minimal. You've got to have the ability to build the case and try the case in order to get the full value.
Otherwise they might have leverage.
They have leverage. Yeah. They've always had leverage. They've always had leverage of having more money than people
Time
You've learned,
Learn
The podcast. They've had the leverage of money, time. They drag stuff out, they're holding that money, they got their money invested in things, making money, you're not getting it. So the longer they can drag it out, the better it is for them. And the third thing is the uncertainty. They always play that card well. You never know what a jury's going to do. Well, you never know what a jury's going to do. It scares people or people are going through bad times and need their medical bills paid. They need lost wages.
They need it over with.
It over with. So they've always had that leverage. And the question is whether you can create that leverage and think you can do as well without the leverage as an attorney who's experienced, who has the leverage and the threat of going to trial and willingness to go to trial.
So if someone can confidently answer yes to all of the previous nine questions that we've brought up in this podcast, what would you say is the 10th and final question someone needs to ask themselves before taking on their own case?
What is the appropriate attire in the courtroom if they wanted to go try the
Case? Absolutely think we can't all agree look profess, right?
Don't wear a whole lot of jewelry and be yourself when you present your case to the jury.
Right.
I'm kind of joking about some people who do represent themselves. That's a scary thought to me. But I think it's kind of whether or not you want to carry everything we've talked about in all questions on your shoulders and try to do it off the cuff
On your own,
Having a professional do it and whether they hire us or hire somebody else, there's a lot. What we do is stressful. Our attorneys live stressful lives representing people. Try to get the real value for them as quickly as possible and doing everything and building the case, right? Their lawyers who have been practicing years, we've got- we've got over 250 years of total legal experience in the firm wow and it's still stressful for them. The question is whether or not you want that stress and that burden on you, whether or not it's
Completely.
Hiring somebody who knows what they're doing and removing it. And when people hire us, I try to tell 'em, trust us. Work with us.
Be honest. We
Didn't need to be teammates with you. We're going to be honest with each other back and forth, but let us carry your burden. I mean, that's what you're paying us for. So the 10th question would be whether or not they want somebody to carry the burden or help carry the burden or they want to carry it themselves.
That emotional involvement, I'm sure can be a big deciding factor. Well, thank you so much for telling me a little bit about what people need to think about before they decide to take on their own case. I really appreciate you being here today.
And I would add that if anyone has a question as to whether or not they have a claim that needs an attorney, we'll talk to 'em for free. We won't charge 'em anything. I've told our attorneys when they talk to somebody and if they have something that they don't need a lawyer to give 'em some free advice. Yeah,
Be open about it.
I know yesterday I was driving back from Greenville and somebody called and said, Hey, somebody gave Dorsey five star and Dorsey gave him free advice and he settled his own case. Oh wow. So give a Google five star review for taking some time. So that's
Really nice.
We don't mind talking to some people if we see, in that case it was big damages, but the insurance was limited and they didn't need a lawyer. Wow. The Dorsey spent the time and explained it to 'em and he settled the case himself. We don't mind helping people that way.
So whether we take your case or not, we still are going to be there to answer any questions you might have.
Absolutely.
That's so good to know. Well, thank you so much for joining me today. I learned quite a bit.
Alright, thank you.
Thanks.
Thank you for joining us on The Legal Truth Podcast. If you have questions that you would like answered on a future episode, please send them to the [email protected]. If you would like to speak to us directly, call us at (843)-248-7486. If you find the podcast valuable, please leave us a five star review and share the legal truth with your neighbor, friend, or family member who is seeking reliable information about a South Carolina personal injury or workers' compensation claim. Dirk J. Derrick of the Derrick Law Firm Injury Lawyers is responsible for the production of this podcast located at 901 North Main Street, Conway, South Carolina. Derrick Law Firm Injury Lawyers has included the information on this podcast as a service to the general public use of this podcast and any related materials does not in any manner constitute an attorney-client relationship between Derrick Law Firm Injury Lawyers, and the user.
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