What Is Alternate Dispute Resolution (ADR)?

When you are injured due to another person’s negligence and you submit a claim for damages, is it better to mediate or arbitrate your claim, or just press on to a trial?

It’s almost always better to attempt settlement of your claim before going to trial. The various methods of resolving claims prior to trial are referred to as Alternate Dispute Resolution (ADR).

What Is Mediation?

The most common form of ADR in Idaho is mediation.  Both sides agree on a mediator, who is usually an attorney or retired judge with experience in handling personal injury cases.  Both parties meet at the same place but in different rooms.

The mediator conveys offers back and forth between the parties (sort of like a shuttle diplomacy), discusses with each side the strengths and weaknesses of their respective positions, and tries to help the parties ultimately agree on an amount of damages for which they are both willing to settle.

What Is Arbitration?

Arbitration is another form of ADR. The parties make an informal presentation of their cases to an individual arbitrator, or a panel of arbitrators.  A decision is made by the arbitrator(s), usually in writing. If it is non-binding arbitration, then it is advisory only and either party can reject the decision and proceed to trial.  If both parties agree on the decision, they settle the case.

Even if both parties do not agree with the decision, it is helpful for them to see the amount of damages an independent third party assigns to their case and this can lead to a later settlement.  If it is binding arbitration, the parties are bound by the decision and there is no appeal.

I rarely recommend binding arbitration to my clients because the decision is made by only 1 person (or possibly a panel of 3 persons), rather than having the benefit of 12 members of a jury making the decision.  Twelve people usually come up with a decision that is fair; one person making the decision creates a greater risk of getting an odd result and there is no appeal.

Mediation or non-binding arbitration has real advantages over going to trial: (1) the parties are in charge and they decide what they are willing to settle for, instead of taking the risk of putting that decision in the hands of a jury; (2) it saves the cost of going through an expensive trial; (3) it avoids the anxiety and emotional stress of a trial; and (4) it gets the case settled much sooner than if it goes to trial.  Most of the cases I take to mediation settle.

However, if the opposing party just isn’t reasonable in discussing settlement at mediation or rejects a non-binding arbitration decision favorable to you, then sometimes you do better by presenting your case as effectively as you can to a jury of your peers.

An experienced attorney can advise you as to which is best: mediation, arbitration, or trial.

GARY MONTGOMERY

Gary Montgomery is one of Idaho’s senior attorneys.  He began his career as Assistant Attorney General for Idaho, and then as Assistant U.S. Attorney for the District of Idaho.  He has tried over 100 cases, and has a remarkable win/loss record, prevailing over 90% of the time.  He has represented clients in cases resulting in millions in settlements and verdicts.

It will help to understand what damages you are entitled to recover if we divide them into two categories: (1) economic and (2) non-economic. Economic damages compensate the injured person for losses that can be measured or calculated mathematically, such as medical bills or lost wages.  Non-economic damages compensate the injured person for more subjective kinds of losses we cannot calculate mathematically, such as pain and suffering, but which are very real.

When you have been injured due to another person’s negligence, you may be entitled to recover the following damages:

ECONOMIC DAMAGES (sometimes referred to as “specials”):

• Medical bills, both present, and future, for treatment or prescriptions.
• Repair or replacement of damaged property (such as damage to your vehicle, or personal items like a computer or cell phone).
• The diminished value of your car even after it has been repaired.
• Lost wages (if you receive a salary or are paid by the hour) or loss of income (if you are self-employed or work on commissions), both past and future.
• Mileage for travel to and from your medical care providers for treatment.
• Cost of necessary help with domestic or household services or home maintenance (such as cleaning or other household chores that you cannot perform because of your injury).

NON-ECONOMIC DAMAGES (sometimes referred to as “general damages”):

• Pain and suffering.
• Mental and emotional distress or anguish.
• Loss of cognitive functioning (due to a concussion or traumatic brain injury).
• Loss of enjoyment of life (such as inability to engage in recreational activities or hobbies).
• Physical impairment (such as loss of strength in an arm or hand).
• Scarring or disfigurement.
• Loss of consortium (a spouse of an injured person may receive damages for loss of the emotional and intangible elements of marriage, such as loss of companionship, affection, solace, society, intimate relations, and support).
• Lost opportunities (such as inability to continue with schooling, or take a vacation you were planning on).

Your attorney will help you determine which of the above damages you are entitled to recover, and what documentation you will need to support such damages.

In future blogs, we’ll discuss some of the types of damages listed above in more detail.

GARY MONTGOMERY

Gary Montgomery is one of Idaho’s senior attorneys.  He began his career as Assistant Attorney General for Idaho, and then as Assistant U.S. Attorney for the District of Idaho.  He has tried over 100 cases, and has a remarkable win/loss record, prevailing over 90% of the time.  He has represented clients in cases resulting in millions in settlements and verdicts.

GARY MONTGOMERY

Gary Montgomery is one of Idaho’s senior attorneys.  He began his career as Assistant Attorney General for Idaho, and then as Assistant U.S. Attorney for the District of Idaho.  He has tried over 100 cases, and has a remarkable win/loss record, prevailing over 90% of the time.  He has represented clients in cases resulting in millions in settlements and verdicts.

When I first visit with Clients, they usually want to know what happens when they hire an attorney.  What’s the process?  What are the fees? How long does it take? How will they pay their medical bills?  These are all great questions.

So I put together a quick overview of the entire process to help give you a feel of what you can expect if you hire an attorney.  Over the next few weeks, I’ll be adding articles to expand on each step in the process, so be sure to check back.

Step 1: Free Evaluation

First thing you want to do is meet with an Attorney you think you might want to represent you.  This can happen by phone, by video conference or in person.  The attorney will ask you simple questions about your case, explain what kind of damages you are entitled to recover, answer any of your questions about the legal process, and explain how a ‘contingency legal fee’ works.

Step 2: Hire – ‘Retaining’ – an Attorney

Once you’ve found an attorney you want to hire, you sign an agreement called a ‘Retainer.’ This simple agreement lists what he or she will be obligated to do in your behalf, and what his or her legal fee will be.

Step 3: A Letter of Representation

The first step for your newly hired attorney is to notify the ‘At Fault’ insurance company that he or she is representing you.  This is called a ‘letter of representation.’ The ‘at fault’ party is usually referred to as the ‘Defendant.’

Step 4: Gathering Medical Records

Next, your attorney will work with you to gather all your medical records and bills.  Often, if you need help finding the right doctor, an experienced attorney can make recommendations.

Step 5: Working with Creditors

If you are being harassed by creditors, your attorney can contact the creditors and work out an agreement with them so they stop calling and writing to you until the case is resolved.

Step 6: Demand Letter

When you’ve completed your medical treatment, your attorney will prepare a ‘Demand Letter.’ This typically includes:

• a statement of the facts of the accident
• an explanation of why the defendant was negligent and liable for damages,
• a summary of your treatment,
• an itemization of your medical bills,
• a discussion of damages you are entitled to recover,
• and a demand for a specific amount of settle your claim.

A complete set of your medical records and bills will be sent with the demand letter, which is usually referred to as the ‘demand package.’

Step 7: Negotiate a Settlement

Your attorney will aggressively negotiate with the claim representative for the defendant’s insurance company to settle your claim for the highest amount possible.  He or she will keep you advised of each step of the negotiating process, and will not agree to any final settlement without your approval.

Step 8: Release 

If a settlement is reached, your attorney will process all the settlement documents, including the formal ‘Release’ you have to sign.  The Release sets forth the amount you will receive in exchange for releasing the Defendant from any further liability for damages.

Step 9: File Suit

If a settlement cannot be reached, your attorney will file a lawsuit for you. An experienced attorney can settle 90% of all cases he or she is retained to handle, for the top dollar amount, without needing a lawsuit.

Step 10: Mediation

After filing suit, your attorney will attempt to resolve your claim through ‘mediation,’ which is an informal process where both sides come together with a 3rd party acting as an impartial arbiter.  This process is non-binding but often helps get the case settled.

Step 11: Preparing for Trial

If your case goes to trial, your attorney will guide you through the process.  I’ll go into more detail on this in another post, but it involves answering written questions from the defendant’s attorney called ‘Discovery,’ and undergoing a ‘deposition’ where the defendant’s attorney will ask you questions about your case. Your attorney would represent you at the deposition.

This is just a quick overview of the process, but hopefully, it helps answer some of the basic questions you have about the legal process.  One of the easiest things to do is have a simple evaluation with an attorney.  This is a very casual conversation, where you can ask questions and get answers, and determine if submitting a claim is a good idea for you.

To schedule a free evaluation with Montgomery Law, simply click the link here, and someone will reach out to you.  If you have any questions about your case, please call or email us.

GARY MONTGOMERY

Gary Montgomery is one of Idaho’s senior attorneys.  He began his career as Assistant Attorney General for Idaho, and then as Assistant U.S. Attorney for the District of Idaho.  He has tried over 100 cases, and has a remarkable win/loss record, prevailing over 90% of the time.  He has represented clients in cases resulting in millions in settlements and verdicts.

So you have been in an accident and have questions as to whether or not the insurance company is treating you fairly.   You are not alone.   However, it can be daunting to look through the phone book and see the crowded field of personal injury lawyers.

They are on the TV, radio, billboards and now are invading the internet.   THEY ARE EVERYWHERE.   in this article, I will outline just a few of the main kinds of questions you will want to ask a personal injury lawyer to make sure you find the right fit.

1. LEVEL OF EXPERIENCE

You can find lawyers that will promise you the sun, moon, and stars, but if they haven’t been to battle with the insurance companies or in the courtroom, then you are taking a huge risk on your case.   Remember, you have only “one bite at the apple” and you want someone that knows how to play the game.

First, ask your potential lawyer about their specific experience on your case. (car accident, sl, p and fall, dog bite).   You should look for an attorney that has worked the type of case you have from start to finish and has experience in negotiating with the insurance company that you are fighting.  Experience means more than just common knowledge in the area.

It means that he/she is familiar with the common legal issues as well as connections with investigators, medical personnel and experts to help on your particular case.

Second, ask your potential lawyer if he/she has ever been to a jury trial on the type of case that you have.   While it is true that most personal injury cases do not go to trial, you don’t want a “newbie” or a “novice” taking the wheel on your case.  The reason is simple.

If your attorney has no reputation of going to trial or is fearful of the courtroom (trust me, some lawyers are), the defense and the adverse insurance company will take note and make a lower settlement offer and not take your case as serious.   Next, sometimes winning your case isn’t so much about skill as it is experience.

A seasoned attorney who has been to trial knows the rules of evidence and how to navigate through the judge’s rulings and how the present the case in front of a jury.  Most of the time, this is learned through the good old fashioned school of hard knocks and trial and error.

In short, find a lawyer that knows what to do and that can take your case all the way to trial if it so requires.

2. HOW MUCH IS MY CASE WORTH

This is the “million dollar question” right?   Keep in mind that there is no formula or exact science to determine what the value of your case might be at the beginning.  Be very wary of an attorney that promises huge $$$$ on your case right from the get-go.   Personal injury cases can be very unpredictable and lots of things can happen, even in the middle of a trial that can affect the value of your case.

However, your potential lawyer should be able to provide a rough prediction regarding your chances of winning and what type of settlement or verdict you can expect.  (Keep in mind that an attorney is not going to take your case if he/she doesn’t think he/she can recover $$$ on your behalf.  Lawyers don’t work for free).

WHAT IS YOUR FEE?

Nearly all of the personal injury cases are handled under a contingency fee agreement.  That simply means that the lawyer will not be paid unless they can recover money on your behalf.  It is standard in the personal injury field for the lawyer to take a fee of 33% of your total gross settlement.

In simple terms, if you settle a case for $100,000.00, your lawyer will take $33,333.00 as a fee for the work.   Most of the time, case expenses, medical expenses, and medical reimbursements are then deducted before you will receive your final amount.  ALWAYS talk to your potential lawyer about questions you may have in this area.

3. DO I LIKE THIS POTENTIAL LAWYER?

This is a person that you will be spending some time with on the phone, and likely in person.  Ask yourself, do you want this person on my side?  Do I trust this person?  Is this potential Lawyer a good fit?  If you have doubts, then pay attention to your feelings.

Ask lots of questions and try to get a good read on his/her genuine responses.   Also, make good mental notes and hold the lawyer to what he/she committed to do from the outset.

The mark of a good lawyer is following through with what he/she promised to do for you and that they keep you up to date on what is going on with your case.  Ask what the Lawyer intends to do to keep you fully advised as to progression on your case.

WARREN DOWDLE

Warren W. Dowdle has established himself as one of Idaho’s best trial lawyers.  He represents people who are injured by the negligence and carelessness of others. He also defends clients who have been sued and are in need of representation.  Mr. Dowdle has been lead counsel on 40+ jury trials and has tried case throughout the state of Idaho.

The free evaluation is a very informal setting.  We simply meet to discuss your case.  This is a no pressure conversation.  We want to determine if there are damages that you may be entitled to recover, but beyond that, we want to help answer any questions you may have about your case, and give you the information you need to feel comfortable moving forward.

With a personal injury case, Clients usually have a lot of questions about simply navigating the process.  How to pay your medical bills, or what to say to the ‘at-fault’ parties insurance (the other sides insurance)?  There are also things you need to know to protect your case, like things you probably shouldn’t say or do on social media.

We want you to leave the consolation knowing what to expect from the legal process, and feeling confident and relaxed about your role in that process.

Here’s a quick list of some of the items we’ll cover:

GARY MONTGOMERY

Gary Montgomery is one of Idaho’s senior attorneys.  He began his career as Assistant Attorney General for Idaho, and then as Assistant U.S. Attorney for the District of Idaho.  He has tried over 100 cases, and has a remarkable win/loss record, prevailing over 90% of the time.  He has represented clients in cases resulting in millions in settlements and verdicts.