Part 2: Tips for Negotiating Pain and Suffering…
When negotiating a car accident injury claim it’s important to be prepared and confident. This page gives tips and strategies for negotiating your auto accident claim for pain and suffering.
An often heard maxim is that pain and suffering equals 1½ to 5 times hard costs (a.k.a. “Special damages”). That can be true, but unless you know how to convince the adjuster to compensate you for pain and suffering, you may never get past payment for only the hard costs.
There are no U.S. laws which compel a claims adjuster to pay for pain and suffering. There is no reference guide listing compensation amounts to be paid for mental anguish.
Having an adjuster and injured party come to an agreement on fair compensation for pain and suffering is without doubt the most difficult aspect of settlement negotiations after a car collision.
The adjuster usually has the upper hand. He has the money and you don’t. He’s not going to pay any amount for pain and suffering unless you can convince him to.
Pain and suffering (a.k.a. “Mental Anguish”) is not easily quantifiable. The adjuster may believe that you suffered pain and anguish as a direct result of his insured’s actions, but he may not agree with the amount of money you think should be paid as compensation for that suffering.
There are tools and strategies you can rely on to gauge appropriate settlement amounts for pain and suffering in car accident injury claims. They won’t guarantee success but they can help convince the adjuster to pay a fair and reasonable amount for the pain and suffering you endured.
Tips to Negotiate a Car Accident Injury Claim:
As you go through the following tips you will begin to understand negotiation strategies and how they can be successfully applied to your claim.
Tip #1: Organize and Prepare…
Personal injury attorneys do it and so should you. Make sure you have all your documents organized. Know what they are and how to access them immediately. Remember the maxim: “Nine out of ten times, the person who is best prepared will prevail.”
Tip #2: Know What Constitutes Pain and Suffering…
Knowing what is included as pain and suffering, and what is not, is essential if you’re going to successfully negotiate your car accident injury claim. Knowing the difference will streamline negotiations and should command the attention of the adjuster. He will know he’s dealing with someone who understands car accident injury claims and the settlement negotiation process.
Technically, pain and suffering is a measure of how the injuries caused by the collision have caused you to suffer. It is supposed to be payment for the subjective pain. For example, if your back was fine before the collision, and now because of the collision your back hurts every day, the money paid for pain and suffering is supposed to be for that pain you now suffer every day.
You know you are in pain every day. The adjuster sees the X-rays showing the torn disks. He believes you are in pain. The question then becomes how much is that pain worth? And how do you measure what that pain is worth?
Suffering also includes psychological suffering. The fear, helplessness, and terror you experienced was part of the suffering.
Pain and Suffering does not cover resultant inconveniences, such as rental cars, lost wages, or other similar quantifiable amounts. It is for the pain and suffering alone – or at least is supposed to be.
Tip #3: Speak With the Adjuster as You Would Any Other Professional…
You want the claims adjuster to take you and the negotiations seriously. Commanding his attention and begrudging respect will go a long way toward an effective presentation and consideration by the Adjuster.
- Sound in control and organized.
- Your voice should be steady, and never shrill or insulting.
- Do not sound desperate, or like you are in a hurry to settle.
- Pace yourself. You are not going to settle your car accident injury claim on the first day.
Tip #4: Don’t Begin Negotiations Presuming Anything…
You already know the adjuster doesn’t have to give you any pain and suffering compensation. So going into a negotiation thinking it’s all about seeing how high you can “jack him up” is not only foolish, but can set the negotiation back before you even get started.
Remember the adage, “Don’t engage the mouth until the brain is in gear.”
Tip #5: Don’t Attempt to Get Personal With the Adjuster…
The adjuster is not your buddy. Hopefully he will be polite and amiable, but be assured it’s not for your benefit.
He’s probably learned from his training that being angry or mean during business hours reflects poorly on the company and will cause premature burnout or ineffectiveness.
Tip #6: Never Imply or Invite Collusion…
There have been too many examples of injured parties misunderstanding something a claims adjuster either said or implied and using it as an invitation to propose something illegal.
If you cross the line, the adjuster will probably stop returning your calls. The next communication you receive will be a letter from the insurance company’s legal department ceasing any negotiations with you.
At that point they owe you nothing, and will wait to be contacted by your attorney. Any hope of settling your car accident injury claim without an attorney is gone. These things happen, and although you are probably smart enough never to engage in such behavior, you should be aware of the consequences for people who do.
Here are two examples of actual conversations which took place between an adjuster and an injured party:
- Injured Party to 1st Adjuster: “Look, you and I know you have to pay me. The maximum is 5 times right? So I’ll tell you what I’ll do. We’ll split the difference, but instead of 2½ times, go ahead and give me 3. Then tell me where to mail it and I’ll mail you the difference.”
- Injured Party to 2nd Adjuster: “Don’t try and (expletive) me over pal. My brother’s an attorney and he’s already told me what sleazeballs you guys are. I know how you guys take kickbacks all the time.”
Tip #7: Tell the Adjuster How the Collision Affected You on a Personal Level…
Include such things as the sheer terror of the collision, the helplessness you felt as you were being propelled into the concrete wall, and the belief you thought you were about to die. These are powerful feelings. Feelings like these are certainly not commonplace.
For most people the closest they get to real helplessness is being stuck in traffic. What you experienced were feelings only someone close to death might experience. What are those feelings worth? That is what you have to convey to the adjuster.
There is little argument about how these events affected you physically, but only you know how that horrible day affected you personally. How it affected you at the time of the collision and how it will affect you into the future. You and only you will have to effectively communicate those feelings to the adjuster.
Tip #8: Don’t Be Shy…
This is not the time to be understated or humble. Within the bounds of professionalism you can still be doggedly determined. If you are a natural extrovert then use that trait. If you are a bit more introverted… well, if there was ever a time for you to step out of your comfort level, this is it.
When negotiating your car accident injury claim, one in which there are thousands and thousands of dollars at stake, there will be no dress rehearsals. So again, be organized and prepared.
When speaking with the adjuster your starting point should not be the collision, but the time just before it. Let the adjuster know that up until the collision the day was going as it normally did. Here’s an example of how descriptive your story should be…
You were driving to work, looking forward to the weekend with your friends. It was a beautiful day. You had the sunroof open and your favorite music playing. Then you remember hearing some screeching of tires, and car horns blowing. You turned down the volume and began to be concerned, especially as the screeching and sound of honking horns grew closer.
You continued driving still heading to work when you remember seeing in your rear view mirror a car cutting in and out of traffic. Every time you looked up it seemed the car was speeding and weaving closer to you. You began too feel a little sick to your stomach as an impending fear of something bad started to set in.
The next thing you remember was the terrible sound of glass breaking and the screeching of tires. You sat frozen and felt completely helpless as you found yourself sliding across three lanes of traffic at more than sixty miles an hour. Your feelings turned from helplessness to sheer and utter terror as you saw the concrete wall which borders the expressway looming nearer and nearer. And then you hit the wall.
You remember praying, knowing you were going to die at any second. Your car was sliding down the concrete wall seemingly forever as sparks flew out with every bump of sheet metal into concrete. The next thing you remember were people yelling at you as you lay in your car, slumped over, bleeding and confused. They were trying to get you out of the car but you were coming in and out of consciousness. At some point you remember the paramedics checking you for injuries. You later learned the collision fractured your left clavicle and completely snapped your left tibia.
And there was more…
Suddenly as your head began to clear you felt a sensation of pain like you had never felt in your life. Your leg and collarbone area felt like someone stuck hot knives in and kept twisting them. At one point the pain was so intense you vomited all over yourself.
The paramedics were working feverishly but you didn’t know it. One was clearing your mouth as the other kept trying to get you to tell him if you were allergic to any medications. He didn’t want to administer morphine until he found out if you were allergic to any medications, which in and of themselves might cause a life threatening reaction. To this day there are still some things you can’t remember.
Tip #9: Tell the Adjuster How Extremely Painful the Collision Was…
Explain in excruciating detail everything that happened. For example, (presuming the following events were true…) speak of how your head slammed into the driver’s side window, and then snapped violently back toward the passenger side. Tell him your body jerked forward and backward as if it was a punching bag.
Tell him your front airbag didn’t deploy because you hit the concrete wall sideways. And because you weren’t able to afford one of those fancy new cars where airbags seem to deploy from a million places, your shoulders, knees, and entire upper torso banged off the driver’s side door and window repeatedly and painfully.
If the preceding characterizations don’t fit those of your car accident injury claim, you can still follow a similar form and substance, while incorporating your unique circumstances.
Tip #10: Tell the Adjuster How Extremely Painful Your Treatment Was…
Talk about both the immediate treatment and the recovery period afterwards. Talk of enduring the setting of your bones, and the pain and discomfort as you lay in the hospital bed for days and nights. Tell him about the embarrassment and indignity you suffered while in the hospital bed unable to clean yourself and manage personal needs.
Tip #11: Go to the Sources of Information…
Courthouse records and online sites are excellent sources of information on the amounts juries have awarded in cases similar to yours. Online sites provide information of every kind. These days for a reasonable price you can research as many sources in one hour as it used to take in one day. One such site is VerdictSearch.com
You can research the amounts juries have awarded in similar car collision cases in and around your county. You specifically want to see how much juries have awarded victims in car accident injury claims similar to yours. Make sure to look at jury verdicts in your state and especially in your local counties. You’d be surprised at the disparity in verdict amounts from one state to another, and even from one county to another.
Tip #12: Tell the Adjuster You Have a Copy of his Insured’s Driving Record…
Also get the criminal record if applicable. You can be pretty sure the adjuster has copies as well but was hoping you weren’t sharp enough to know about them or have copies of them.
For example, presuming the following is applicable…
You could refer to his insured’s driver’s license suspension a year before this collision. The suspension was a result of too many moving violations including speeding, reckless driving, failure to maintain a single lane, and following too closely.
After going over his insured’s terrible driving record, move on to his insured’s criminal record – a record which includes convictions for two DWI’s within the last five years, and a felony conviction for possession of drugs.
Tip #13: Make the “Before and After” Clear to the Adjuster…
Say that before the collision you never had any real physical or psychological problems. You were healthy and enjoyed working out, playing golf, basketball, and other sports with your friends. Until the collision you enjoyed a healthy personal relationship with your spouse.
Then suddenly his insured’s recklessness changed everything. Just like so many others who’ve suffered back injuries and had multiple surgeries, your pain and discomfort has not abated. It remains, and it reminds you every morning and throughout every day how your life has been so seriously altered.
You have tried get back into the swing of things, but the pain and discomfort are so intense that you’ve lost any pleasure you used to have while engaging in sports, dancing, and intimacy with your spouse.
The loss of intimacy with your spouse is a very sensitive subject and one which you certainly would prefer not to speak with the adjuster about, but the lack of intimacy is considered a recoverable damage. It’s part of your overall pain and suffering and is refered to as “Loss of Consortium”.
Tip #14: Remind the Adjuster that You Will Require Additional Treatment…
Tell him that your doctor’s final narrative clearly indicates you will require additional treatment, including, but not limited to more MRI’s and CAT scans to gauge your rate of recovery.
What is all of this worth?
You’ve done all you can to make a professional presentation of your case. Car accident injury claims are much easier to write about than to actually negotiate. When writing or talking about the process there is no one to argue with you or to interrupt or disagree with you.
The actual negotiation process will require:
- command of all the information you’ve accumulated and prepared
- the ability to present all the information in a cohesive manner
- the ability to engage forcefully, effectively and professionally in a dialogue with the adjuster
To do all this will take skill.
The next page presents excerpts of dialogues between adjusters and injured parties. Much of what follows is taken directly from notes and records of negotiations in actual car accident injury claims…
Check out Part 1: More Tips on Negotiating Car Accident Settlements.
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