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 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
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
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
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