Frequently Asked Questions

Injury Attorney in Scottsdale Answers Accident Victims' Questions

The Watkin Law Office has put together a series of frequently asked questions related to personal injury and wrongful death claims. We encourage you to review these questions and answers, but whether or not they answer your particular questions, we urge you to contact us directly and discuss the particular facts of your case, your injuries, your monetary damages, and your other concerns. Call us at 480-281-3838 or submit a confidential case evaluation form.

What is the legal meaning of the term "Negligence?"

Injury and Wrongful Death lawyers use this term all the time, but we sometimes forget that our clients might not fully understand what the word means. "Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. Negligence is the failure to act as a reasonably careful person would act under the circumstances." This definition of negligence is quoted directly from the jury instructions Arizona courts recommend be given in civil negligence cases. (RAJI (CIVIL) 4th.) Negligence may also be defined as any act or omission that needlessly endangers another person. "Needlessly endanger" means there is a safer way to do the same thing; the second-safest method, by definition, contains some danger the safest method does not; so choosing the second-safest method means that danger is "needless," and therefore negligent. The "reasonably careful person" mentioned in the jury instruction language would not needlessly endanger another. (Credit: "Needless Endangerment" to David Ball On Damages, Third Ed. (2011 by the National Institute for Trial Advocacy.)

How much is my personal injury claim worth in Arizona?

That will depend on the severity of your injuries, and many additional factors. Assuming we can prove the other party was at fault (or mostly at fault) and that his or her wrongdoing caused your injuries, we will then focus on what your case is worth. That will be a function of the exact nature of your injuries, the estimated total cost of your past and future medical treatment, and any economic losses you suffered, including time away from work. Obviously, cases involving death, permanent paralysis, permanent disability and the need for lifetime medical care present different considerations than claims for broken bones, cuts or other types of "healing" injuries where the client is fortunate enough to - eventually - return to "normal," such as work, school or retirement. In any event, at your first appointment, I will review the details of your case and perhaps give you a rough estimate of the value of your claim. We will be in a much better position to estimate that value once you have completed your medical treatment and your condition has stabilized.

What if the negligent party has no insurance or not enough?

We will investigate all available sources from which to recover your damages. Those sources might include not only liability insurance, medical payments coverage and the negligent party's personal assets, but even your own insurance. For example, in motor vehicle cases, the party at fault is often completely uninsured or woefully “underinsured,” meaning the value of your claim exceeds the amount of auto insurance coverage he carries. In such cases, we may be able to collect the value of your claim from your own insurance company. If your own auto policy includes provisions for uninsured or underinsured drivers, then your own insurance company must pay the value of your claim in accordance with the provisions of the policy.

Should I speak with the other party’s insurance company?

Should you? No. If you have not already done so, it is generally best not to discuss your case with anyone other than someone from The Watkin Law Office (and your treating physicians.) Statements that you make to others are not privileged and they may (will) be used against you to reduce the value of your claim. Please, just let us communicate with the insurance companies. After all, that is one of the reasons you are hiring us. On the other hand, if you have already spoken with the other party’s adjuster, be sure whatever you told the adjuster was 100% accurate, and also remember to tell us of that conversation so that we may obtain copies of any written or recorded statements given to the adjuster.

Can I handle a personal injury or malpractice claim myself?

The size and types of cases we handle require the knowledge and expertise of an attorney to investigate the claim, interview the witnesses, obtain the medical records and reports, preserve the evidence, negotiate with insurance companies, handle negotiations, phone calls, meetings, paperwork, etc. Unfortunately, many people wait too long before seeking counsel. We often hear: “Gosh, I kept hoping the adjuster would just treat me fairly [and that I wouldn’t have to give any of it to an attorney....]” These expectations and concerns often lead to problems: people miss the statutory deadlines for filing their claims; they commit themselves to “positions” not always in their best interests; they learn (too late) they have overlooked or lost valuable evidence or opportunities; and they end up bringing their attorney (whom they now desperately need) much less to work with than if they had simply gone to him or her in the first place.

How soon will my case be settled?

The process of negotiating settlements with insurance companies usually does not begin until after you have completed most, sometimes all, of your medical treatment and we have obtained all of the records needed to document your injuries and losses. Many cases do settle during negotiations with insurance companies, but this process is often time consuming. Sometimes it is necessary to file a lawsuit if your case cannot be settled. We will keep you updated on the status of negotiations throughout your case.

What is a "Wrongful Death" claim?

In Arizona, if a person dies as the result of another person’s wrongful conduct, whether that conduct was negligent or intentional, the decedent’s surviving spouse, children and/or parents may file a claim to compensate them for the losses they sustained as the result of the wrongful death of their family member. Almost any type of conduct that leads to another person's death can be grounds for a wrongful death action. Motor vehicle crashes, construction site accidents and medical malpractice are just a few examples.

What is meant by “comparative fault?”

Sometimes an "accident" has been caused by more than one person. In fact, in many situations, the victim is himself partly to blame for his injuries. Arizona law provides that judges or juries in personal injury and wrongful death cases may determine just how much each party was at fault. Let's use the example of a car striking a pedestrian. If you, the pedestrian, were lawfully crossing the street in a marked crosswalk, with a green light, and a driver ran a red light and slammed into you, the driver would almost certainly be considered 100% at fault. In contrast the case of two motor vehicles where another driver pulls out in front of you, causing a collision. Although a jury might find the other driver 80% at fault for failing to yield, it might find you 20% to blame, perhaps because you were speeding! Under that scenario, the defendant would still have to pay you 80% of the total value of your claim. This same comparative analysis is used by juries to determine their awards in all types of negligence cases. The bottom line is: even if you are partially at fault, you may still be entitled to recover a substantial portion of the total value of your claim.

What about closed head injuries?

Closed head injury cases sometimes occur. They may begin as a simple "whiplash" case, with neck and back injuries, or where the client has fallen or been struck by a falling object, followed by a brief “blackout.” Many emergency room doctors and treating physicians fail to properly diagnose or treat such injuries. They are difficult to diagnose because symptoms of injury in one person may not constitute symptoms of injury in another. Most insurance adjusters and jurors do not realize how sensitive the head and brain can actually be; yet, even a relatively minor trauma to the head can force the brain to come into contact with the bony interior surface of the skull and cause microscopic hemorrhaging to the brain, regardless of the force of the blow to the head. Collisions at speeds as low as eight miles per hour can generate five times the force of gravity on a patient’s head. This amount of force has been shown to produce injury to the brain stem, cerebral concussion, and cranial nerve stretch in 50% of experimental subjects. In reality, most cases of rear-end collisions result from incidents involving vehicles traveling well in excess of eight miles per hour. The greater the speed of the vehicles at the time of the collision, the greater the possibility of damage to the central nervous system and to the peripheral auditory and vestibular symptoms in such cases.

If a client suspects he or she has sustained a minor closed head injury, they should ask the treating physician to refer them to a neuropsychologist. Neuropsychology is a specialty that attempts to define anatomical closed head injuries. The neuropsychologist looks for changes in behavior, memory, and other emotional components in diagnosing and prescribing treatment for the patient. Clients get frustrated because they know something is wrong with them but cannot put their finger on it. They complain that things are “different” since the accident. The client may be abnormally aggressive and lack patience since the accident; he may develop memory problems; depression; dizziness; lack of concentration, anxiety, lack of interest in sexual activity, change in sleeping habits, and other symptoms. In such cases, it is imperative that the client and family members, such as spouse, keep accurate records of how the injury affected the client’s day-to-day behavior. The most important documentation is the so-called “before and after” aspects of the injury. Each year, hundreds of thousands of people are hospitalized from minor head injuries. Half of these people suffer what is called “post traumatic or post-concussion syndrome." Unfortunately, some of these people lose their jobs because of subtle changes in their behavior that makes them appear to be malingering.

Can my own health insurance pay for my medical treatment?

Yes. Your number one goal should be to get proper care; that is why you have health insurance. Use it. Your rights to recover damages for injuries suffered as the result of another person’s negligence are not affected by any payments made by your health insurance. If you eventually settle your claim and recover damages from the wrongdoer, your health insurer might be able to file a lien against your settlement, seeking reimbursement of the payments it made for your health care; but at least you will have received the medical treatment you needed, and any reimbursement will not come out of your own pocket.

What other types of injury and death cases does The Watkin Law Office handle?

On any given day there are thousands of people injured and killed, in thousands of different ways, all because of other people's negligence. Auto, truck, motorcycle, construction, boating, bicycling and premises liability cases are the types of serious injury and death cases people hear about most often. We handle all of them. We also deal with the victims of dog bites, carbon monoxide poisonings, OSHA violations, and other instances of serious injury and wrongful death. We handle work-related injuries caused by dangerous work environments and third-parties (including co-workers). There are countless combinations and variations of negligence, often by multiple parties, that can contribute to serious injury. Our job is to figure out what happened, why it happened, whether it could and should have been avoided, who is at fault, and the extent of damages to which our client is entitled. Call us. We will talk about it.

What is Watkin Law's fee for handling my personal injury or wrongful death claim?

Our firm accepts personal injury and wrongful death cases on a contingency fee basis. That means we only collect a fee when money is recovered on your behalf. Here is an example based on a claim for personal injuries sustained in a motor vehicle collision. Let's assume we take the case on a one-third contingency fee. That means our fee is 33 & 1/3% of the total (gross) amount recovered, plus any costs we incurred or advanced on your behalf. For purposes of this example, let's say we expend $4,000 in out-of-pocket expenses for experts, deposition transcripts, reports, medical records, filing fees, etc. If we ultimately recover (collect) $90,000 for your claim from the opposing party, our law firm portion of the gross recovery would be: attorneys' fee of $30,000 (one-third of $90k), plus $4,000 for the costs we advanced on your behalf, leaving $56,000. Unless you were obligated to pay medical or other liens from your share of the recovery, you would receive a net settlement distribution check from us for $56,000 (i.e., $90,000 - $30,000 - $4,000 = $56,000.)

Keep in mind, costs are separate from attorney's fees, and clients remain responsible for paying these costs, regardless of the outcome of the claim. Our contingent fees are sometimes higher than one-third, and sometimes lower. We sometimes provide for an increased legal fee percentage in the event formal litigation is filed and the case is actually set for trial. Similarly, percentages for wrongful death, products liability and medical malpractice claims are generally higher than for motor vehicle claims, particularly when they necessitate additional procedures, such as the filing of probate actions.

Important Personal Injury Points

Doctor and hospital records, as well as the testimony of treating health care providers, are among the best means of proving damages for pain. Therefore, the client needs to know that obtaining treatment from the most competent and respected physicians in their given fields will add credibility and (usually) real value to their case. Clients should treat with the best doctors and always clearly communicate to them the full extent of the symptoms suffered since the injury.

Post-injury and post-operative photographs another method of providing solid tangible evidence to support a damage claim for pain. Suffering, which is equally difficult to define in objective, measurable terms a jury or insurance adjuster will understand, is frequently demonstrated by the "before and after" comparison of the client's activities and lifestyle.

Injured clients who are not, themselves, primarily at fault are entitled to recover money "damages" for the following: (a) past medical bills; (b) future medical bills; (c) lost wages or past income; (d) future lost wages or income; (e) past pain; (f) future pain; (g) past suffering; (h) future suffering, including damages for disfigurement, disability and anxiety experienced as a result of the injury; (i) loss of companionship or consortium; and (j) incidental expenses (e.g., reasonable auto rental charges, towing, storage, etc.)

Pain and suffering are actually two separate elements of damages. Pain is the physical sensation experienced as a result of an injury (or the corrective surgery or therapy to treat that injury). Suffering includes the emotional and mental aspects of that pain. Together, damages for the client's bodily and/or emotional injuries, including the actual pain and the mental suffering, are often the most significant element of the client's total damage claim. But these damages are often difficult to quantify and prove.

If you have been injured by the negligence or recklessness of another person, please talk to your lawyer before speaking to insurance investigators or adjusters, and before giving any sort of written or recorded statement to anyone. You need a personal injury attorney in Scottsdale who truly cares about you, your rights and what is best for your family.

Also, seek out the right medical specialists as early as possible. Many health care providers are willing to provide care and wait for payment until you settle your claim. We will identify all possible insurance from which to obtain recovery and fully investigate your claim. Personal injury claims are resolved through settlement, mediation, arbitration or trial. We have successfully represented victims in each of these.

If you or a loved one has been seriously injured or killed in Scottsdale, allow our firm to help you during this difficult time. (These matters are typically handled on a "contingent" or percentage-fee basis; there is no charge for initial phone consultations. Clients pay no attorneys' fees until there is a settlement or recovery.)

Clark Watkin of The Watkin Law Office, PC is an attorney who represents serious personal injury and wrongful death clients throughout Arizona, including Scottsdale, Phoenix, Tempe, Mesa, Chandler, Gilbert, Glendale, Peoria, Cave Creek, Carefree, Fountain Hills and Paradise Valley.

IMPORTANT: If an insurance agent for the person at fault calls to "interview" you, decline -- at least until you have spoken with an attorney. Despite what the insurance agent might tell you, he is NOT "just trying to help."