Using a Federal Criminal Defense Lawyer

he same general principles apply to hiring a federal criminal defense lawyer as apply to hiring any other criminal lawyer. It is highly recommended that any person hiring a lawyer to assist with federal criminal charges or grand jury proceedings retain a lawyer who has significant experience with the federal system.

The Federal Criminal System

The federal criminal system is in many ways like the state system, but it has some very significant differences. One difference is that the typical United States Attorney's office, responsible for prosecuting federal criminal charges, has significantly more time and resources to direct to any given prosecution than would a state prosecutor.

Federal prosecutors also typically have better academic credentials than state prosecutors, and many have a great deal of latitude in selecting the cases they wish to prosecute through the federal courts. Save for crimes which occur on federal land, those cases which fall exclusively to the jurisdiction of a federal prosecutor tend to be of an interstate nature, and are more likely than a state prosecution to be legally and factually complex.

As a result, federal criminal defense tends to involve cases which are more difficult to defend, and the cost of defense is often very high. In each federal jurisdiction there is also a Federal Defender's office, which can provide legal representation to indigent defendants.

Federal Criminal Investigations

If you are contacted by the federal authorities in relation to a criminal investigation, the first thing you must attempt to determine is if you are being contacted as a potential witness or as a suspect. The second thing you must determine is what statements you can safely make to the authorities without potentially falling into a trap, such as being charged with lying to federal agents. Consider for example the case of Martha Stewart, who was acquitted of any direct criminal wrongdoing but spent time in prison for making false statements to federal investigators.

A federal criminal defense lawyer can help you assess the nature and purpose of the investigation, and why you are being approached. While you should expect your lawyer to instruct you to provide honest answers to any questions from the federal authorities, your lawyer may be able to guide you around any potential traps or pitfalls. When appropriate, a federal criminal defense lawyer can be present during any questioning, act as an intermediary between you and the investigating authorities, or advise you to exercise your Fifth Amendment privilege against self-incrimination. If appropriate, a federal criminal defense lawyer may be able to work out a deal where you will cooperate with the investigation, in return for more favorable treatment when the investigation is concluded. In appropriate cases your lawyer may also be able to secure a letter of declination, in which the U.S. attorney formally declines to prosecute you in relation to a particular offense or investigation.

Grand Jury Testimony

When a person receives a subpoena to testify before a grand jury, as with an investigation, it is not always apparent whether the person is being subpoenaed as a witness or as a potential target for indictment. As with an investigation, a federal criminal defense lawyer can help a grand jury witness determine the likely purpose of the subpoena, how to avoid potential traps and pitfalls when providing testimony, or when to "take the fifth". The lawyer may also be able to work out a deal for immunity, or for use immunity (meaning that the testimony provided before the grand jury cannot be used to advance a criminal prosecution against the witness), in relation to the testimony.

Federal Criminal Proceedings

It is helpful during federal criminal proceedings to be represented by a lawyer who is familiar with the federal rules of evidence, federal rules of criminal procedure, trial procedure, and the federal court system in general. The lawyer should also be familiar with federal sentencing procedures, and with the recent Supreme Court rulings which affect sentencing. It helps to have a defense lawyer who is familiar with the U.S. Attorney's office which is handling the case, and ideally some familiarity with the federal investigative agency which spearheaded the investigation.

There is no such thing as a highly qualified federal criminal defense lawyer who dabbles in federal court matters. Lawyers either know federal criminal defense, or they don't. If you are involved in the federal criminal system, make sure your lawyer, or at least one of the lawyers who will be serving on your defense team, has extensive experience with the defense of federal criminal charges. As previously noted, federal criminal defense tends to be very expensive. You will be paying for specialized experience - so make sure you get it.

Private Criminal Defense Attorneys, Court Appointed Attorneys and Self Representation

In criminal cases, if incarceration is a potential outcome of a criminal case, all defendants must be provided a court-appointed attorney. Defendants, however, may elect to use a private criminal defense attorney or elect to represent themselves in criminal proceedings.
However, the use of an attorney or lawyer provides numerous benefits to defendants, which at first may not be as obvious as they seem. The benefits of using any attorney during your criminal case include:

• Cooperating and negotiating with prosecuting officials, who may refuse to address defendants representing themselves
• Promote pre-trial diversionary programs for defendants
• Provides defendants with a comprehensive and objective view of the potential fallout and other aspects of their criminal charges and pending cases
• Understanding, interpreting, and implementing defenses based on less than obvious court and other legal precedents per their legal experience and research
• Informs defendants of the future fallout from a guilty plea, including civil liability, earning an income, strike legislation, and other stigmas against ex-convicts
• Objectively present expert witnesses, contradicting statements made by prosecution witnesses, and even independently interview eyewitnesses and victims

How to Use Self-Representation in Criminal Cases

Overall, self-representation is typically highly unsuccessful in criminal cases, and in reality, a very small percentage of individuals actually elect to self-represent. Defendants are allowed to request to represent themselves, however, a judge must determine that they are not legally competent based on factors such as age, educational background, English-speaking ability, and the seriousness of the charges faced. Sometimes, individuals may elect to represent themselves, while retaining legal counsel, or “coaching”. In cases of public defenders, a defendant’s best decision is to accept representation from a public defender, but remain active in their case, which may require requesting access to legal books and other court documents while on trial, even if incarcerated. Self-representation, without any form of legal guidance or counsel is a bad strategy for a number of reasons, including:

• Self-defendant’s anxiety and inability to present cases to a jury seemingly in an objective manner
• Convictions are not a light matter for most crimes and may result in years of incarceration
• Self-defendants with previous criminal records are viewed unfavorably by jurors
• Self-defendants, unless otherwise trained, typically are not practicing or experienced in law
• Self-defendants are not guaranteed, but typically granted, access to legal materials and books

How to Use Private Defense Lawyers in Criminal Cases

Private criminal defense attorneys often operate in a specific geographic location and serve the interests of private clients for strictly criminal matters. In most cases, a practicing criminal defense attorney has held a public position in the government court system before turning to private practice. Often, these attorneys work alone or in connection with a group of partners. The problem with getting a private defense lawyer for most defendants, however, is their cost. Most private defense attorneys require payment, or partial payment, upfront for their services, which may follow a number of billing schedules. This factor is probably the foremost reason not every defendant utilizes a private criminal defense attorney. If you can afford private defense representation, you now face several other hurdles, including finding the right private criminal defense attorney to defend your case.

Choosing the right criminal defense attorney is extremely stressful for defendants facing criminal charges, who virtually are putting their freedom in the hands of a stranger in many cases. Additionally, cost becomes an issue in many defendants’ decision to work with a given private criminal defense attorney. Some important questions to answer before electing to go with a given attorney should be posed, including:

• Has the attorney defended against similar criminal charges as those you are facing?
• When and where did this experience occur?
• What were the outcomes of these cases?
• How much time can a lawyer dedicate to your case, both personally and via their staff?
• How communicative is the lawyer and willing to hear your input, suggestions, and concerns?
• What is the individual strategy a given attorney has for defending your case?
• Are there any reasons, events, or any other factors that may negatively influence or hamper an attorney’s ability to work exclusively in your best interest?

How Much Does a Criminal Defense Attorney Cost?

The cost of a criminal defense attorney greatly varies, depending on a litany of factors, including:

• The nature and number of charges you are facing
• The location of your case
• The level of experience an attorney posses

There have been studies to assess the average cost of mounting a criminal defense, and according to one study done by Consumer Reports, the median cost was $1,500. Before even selecting an attorney, defendants will want to assess that particular attorney’s method of tabulating fees. One method attorney’s utilize is billable hours, which essential assign a negotiated pay rate per hour to your case that an attorney dedicates. Additionally methods include case billing, which is a fixed amount charged per case according to the terms you and your attorney draw up before making the agreement. Most attorneys will require a retainer fee, or money upfront, before they commence working on your case. Determining the cost, what services you can expect, and any other variable is carefully noted in your attorney-client agreement, which should be scrutinized before any agreement is made.

How to Use Court Appointed Lawyers in Criminal Cases

Not all criminal defendants are entitled to lawyers at government expense. In fact, each state and municipality possesses individual laws pertaining to the qualifications to receive a public defense. In most cases, a defendant must request a court-appointed legal defense and submit to a financial eligibility questionnaire to determine the financial feasibility of mounting a private defense. The financial eligibility is based on the sole individual’s income, and the determination will not take into account your spouse or other family members’ financial status. Additionally, the courts determine an individual to be partially indigent, which allows for partial reimbursement of legal defense costs at the conclusion of a trial typically at significantly reduced rates.

Individuals should keep in mind that some states offer court appointed attorneys, while others offer free legal representation for qualified indigent defendants through a public defendant or indigent panel attorneys. Many individuals may feel cheated when being represented by a public or court-appointed defender, but statistically speaking, private defense attorneys on a whole typically only produce marginally better conviction to dismissal rates. Additionally, public defender’s often have extensive knowledge of the specific court system your case is being tried in, and may even have established personal connections with virtually every party present, aside from the jury, at your trial. This can go a long way during plea bargaining negotiations and obtaining non-required permissions from the presiding judge.

Defendants cannot select the public defender or court appointed attorney that represents them in most cases. If a defendant feels their attorney is working against the case, or does not respond to the defendant’s requests, a defendant can request different counsel through Motion for Substitution of Attorney. Typically, unless there exists concrete evidence of malpractice, bad faith and dealing, or a lack of communication caused by the public defender, judges frequently deny these motions. Another option for defendants is to request their public defendant to motion for voluntary request for a substitution, which judges frequently approve.

Criminal Defense

Criminal Defense laws are some of the most important in the US. Not only are they designed to ensure a fair trial for anyone charged with a crime, but they are designed to ensure that innocent people are not sentenced to punishment for a crime they did not commit. When facing penalties including steep fines, jail, or even prison time, it's extremely important to have legal counsel with experience in the criminal process.

Arrested: Defendants Rights at Arrest

Can Law Enforcement Make Warrantless Arrests?

Typically, there are only two circumstances where an officer can make a warrantless arrest, which include:

• If an officer is present when a crime is committed, a warrantless arrest may occur
• If an officer has probable cause to believe a given suspect perpetrated a felony, either in or outside of the officer’s presence

Other situations, known as “exigent circumstances” allow an officer to make an arrest if they believe a suspect to be an immediate threat to themselves, the officer, or other civilians. Also, if an officer is in active pursuit of a suspect, warrantless entry and warrantless arrests can occur until the pursuit and factors surrounding the pursuit are determined.

Illegal and Justified Use of Force during Arrests

First, an officer apprehending a suspect typically must follow a procedure known as “knock and notice”, which makes police announce their presence, give occupants time to come to the door, and prevents law enforcement from barging into your home unnecessarily. However, “knock and notice” procedures can be ignored for different reasons, including:

• Eminent danger to persons inside a dwelling
• Active or hot pursuit of suspect
• Believe that announcing presence could afford suspect time to destroy evidence
• Believe that announcing will put officers’ safety in danger due to resistance of arrest

The amount of force an officer is allowed to legally use during an arrest is generally determined by the amount of resistance a suspect offers. The courts determine if force used was “excessive” or “use of unnecessary force”. However, depending on the situation, an officer has several non-lethal and lethal choices to protect him or herself and complete an arrest. Generally, law enforcement can only use lethal force if a suspect points a weapon at officers, is about to commit a violent felony, or threatens the safety of third parties. For many cases, being in a car chase immediately endangers the safety of officers and third parties; therefore, use of lethal force is permissible.

How to Make a Citizens Arrest

Your best bet is to not. Realistically though, almost every state provides citizens the right to make an arrest if they personally see the commission of a crime, or have probable cause to believe a suspect committed a felony. However, detaining your “suspect” might actually be considered false imprisonment or even kidnapping if you violate someone’s legal rights in the process. That is just the criminal liability you may endure. In addition, there is the question of civil liability you may incur from detaining your “suspect”. Some states, however, have specific laws allowing individuals to protect their “domain” or home and property with lethal force. In addition, if any individual threatens your safety, you can use lethal force to prevent this from happening. Making a citizen’s arrest of a person that threatened your safety would be hard to prove however, if you managed to gain full control and custody of that person. Typically, the courts look extremely harshly at citizen arrests and are not too thrilled about individuals actively exercising these rights.

Booking and Bail Process

How Booking Works

Defendants arrested for a crime must be booked following their arrest and prior to posting bail. During the booking process, an official arrest record is made. This process will record a number of things about a defendant, including:

• Recording defendant’s name and the arrest charges they face
• Making photo records of the defendants, or taking their mug shot
• Removal of all personal items from suspect, which will be returned upon release
• Recording of suspects fingerprints
• Submission to a body search ranging from a frisk pat down to a strip search
• Assess whether or not a defendant has outstanding warrants in other jurisdictions
• Screening of arrestees for contagious diseases such as tuberculosis or identifying those that are HIV positive or with AIDS

Arrestees are not entitled to an attorney during the booking process, and any evidence or statement they make during the booking process can be used against them later. The courts will appoint an attorney for all critical legal proceedings, but per the court’s ruling, the standard booking procedure is not a critical legal proceeding. Additionally, most states allow suspects to make one or more local phone calls following the completion of the booking process.

How to Arrange Bail

Bail is some form of cash or collateral held in escrow by the courts in lieu of allowing a defendant to remain free until the resolution of their criminal case. Acceptable mediums of bail include cash, property at the value of the cash value of the bond, and collateral provided by friends or family members. In addition, defendants can purchase a bail bond for usually a ten percent non-refundable premium to secure their release. Defendants can arrange their own bail without the assistance of a lawyer.

The amount of the bail arrangement depends on the crimes one is suspected of committing. The amounts vary by jurisdiction, as well as on a case-by-case basis based on the severity of the crime. Typically, defendant’s first court appearance, either a bail hearing or an arraignment, is when a bail amount is determined. Defendants can negotiate the terms of the bail arrangement with a judge themselves or via their attorney. Sometimes, bail arrangements come with restrictions on movement, activities, or mandatory rehabilitation. If these conditions are violated, your bail may be revoked.

If you are out on bail, but do not appear for a scheduled court appearance, you will face criminal and economic penalties. First, your bail amount will be confiscated, and you probably will be in contempt of court and now a fugitive from justice. This will not help your defense in any manner possible.

The Own Recognizance Release

In some instances, arrestees may be released on their own recognizance. This means that a suspect has signed a written document promising to appear before the courts at scheduled times and to abide by the conditions of their release. Many times, the charges that you can be released on your own recognizance are less severe, and individuals without a criminal past or inclination to flee are given preference in being released on their own recognizance. Additionally, jail overcrowding has allowed some defendants to be released on their own recognizance more frequently than in the past. Defendants or their attorney can request release on own recognizance during the arraignment of bail hearing, and in turn, will want to provide enough supporting evidence to convince a judge that this is a feasible option for the defendant.

Benefits of a Structured Settlement

One significant advantage of a structured settlement is tax avoidance. With appropriate set-up, a structured settlement may significantly reduce the plaintiff's tax obligations as a result of the settlement, and may in some cases be tax-free.

A structured settlement can protect a plaintiff from having settlement funds dissipated, when they are necessary to pay for future care or needs. Sometimes a structured settlement can help protect a plaintiff from himself - some people simply aren't good with money, or can't say no to relatives who want to "share the wealth", and even a large settlement can be rapidly exhausted. Minors may benefit from a structured settlement as well, such as a settlement which provides for certain costs during their youth, an additional disbursement to pay for college or other educational expenses, and then one or more disbursements in adulthood. An injured person who has long-term special needs may benefit from having periodic lump sums with which to purchase medical equipment or modified vehicles.

In some situations, it will be better for a severely disabled plaintiff to set up a special needs trust, rather than entering into a lump sum or structured settlement. Any plaintiff who is receiving, or expects to receive, Medicaid or other public assistance, or the guardian or conservator entering into a settlement on behalf of a disabled ward, should consult with a disabilities financial planner about their situation before choosing any particular settlement option or structure

Potential Disadvantages of Structured Settlements

Some people who enter into structured settlements feel trapped by the periodic payments. They may wish to purchase a new home, or other expensive item, yet be unable to muster the resources because they can't borrow against future payments under their settlement.

Some people will do better by accepting a lump sum settlement, and investing it themselves. Many standard investments will give a greater long-term return than the annuities used in structured settlements.

Selling a Structured Settlement

If you have a structured settlement, you may have been approached by a company interested in purchasing your settlement, or may be curious about selling your settlement in return for a lump sum buyout. About two thirds of states have enacted laws which restict the sale of structured settlements, and tax-free structured settlements are also subject to federal restrictions on their sale to a third party. Also, some insurance companies will not assign or transfer annuities to third parties, to discourage the sale of structured settlements. As a consequence, depending upon where you live and the terms of your annuities, it may not be possible for you to sell your settlement.

Keep in mind that companies which buy structured settlements intend to profit from their purchase, and sometimes their offers may seem quite low. You may benefit from approaching more than one company in relation to the sale of your settlement, to make sure that you obtain the highest payoff. You also want to be sure that the company which wants to buy your settlement is established, well-funded, and reputable - you don't want a fly-by-night outfit to obtain the rights to your annuities but to disappear or go bankrupt before paying you the buyout money. You may have to go to court to get a judge to approve the buyout. It is usually a good idea to consult with a lawyer before entering into an agreement to sell your settlement.

Special Considerations

Any person entering into a structured settlement should be on guard for potential exploitation in relation to the settlement:

Excessive Commissions - Annuities can be highly profitable for insurance companies, and they often carry very large commissions. It is important to ensure that the commissions charged in setting up a structured settlement don't consume an inappropriate percentage of its principal.

Overstated Value - Sometimes, after negotiating a particular settlement figure, the defense will overstate the value of a structured settlement. As a result the plaintiff, in accepting the settlement, in fact obtains a significantly lower dollar value than was agreed upon. Some defendants have nominally paid the full amount of the settlement, knowing that they would later obtain significant rebates from the annuity companies they used. Plaintiffs should consider compariing the fees and commissions charged for similar settlement packages by a variety of insurance companies, to make sure that they are in fact getting full value. A plaintiff may wish to make it a condition of the settlement that the defendant will actually pay the full value of the settlement in setting up the structured settlement, and that any rebates received by the defendant for annuities included in the settlement be payable to the plaintiff.

Self-Dealing - There have been cases where the plaintiff's lawyer is also in the insurance business, and sets up a structured settlement on behalf of a client without disclosing that the attorney is purchasing the annuities from his own business, or is pocketing a large commission on the annuities. Similarly, there have been situations where the plaintiff's attorney has referred the client to a particular financial planner to set up a structured settlement, without disclosing that the financial planner will be paying the attorney a referral fee in relation to the client's account. Make sure that you know what financial interest, if any, your lawyer has in relation to any financial services sold or recommended by the lawyer.

Life Expectancy - It is unfortunate, but many people who receive large personal injury or workers' compensation settlements will have a shortened life expectancy as a result of their injuries. It is important to consider life expectancy in association with any structured settlement, and to consider whether it is appropriate to enter into an annuity where payments will cease upon death. Sometimes it will make sense to insist upon an annuity that pays a minimum number of payments, or one that will pay a balance into the plaintiff's estate, such that the value of the settlement is not lost to an insurance company upon the plaintiff's untimely death.

Using Multiple Insurance Companies - For larger settlements, it often makes sense to purchase annuities for a structured settlement from several different companies, dividing the settlement between those companies. This can provide you with protection in the event that a company that issued annuities for your settlement package goes into bankruptcy - even in the event that one of the companies defaults in part or in full on your settlement payments, you would still receive full payment from the other companies.

What Is a Structured Settlement?

Sometimes when a plaintiff settles a case for a large sum of money, the defendant, the plaintiff's attorney, or a financial planner consulted in association with the settlement, will propose paying the settlement in installments over time rather than in a single lump sum. When a settlement is paid in this manner it is called a "structured settlement". Often the structured settlement will be created through the purchase of one or more annuities, which guarantee the future payments.

A structured settlement can provide for payment in pretty much any schedule the parties choose. For example, the settlement may be paid in annual installments over a number of years, or it may be paid in periodic lump sums every few years.

Car Accidents - Who is at Fault?

Fault is one of the biggest, if not THE most critical element, in any car accident claim. The person at fault is the person whose negligence caused the accident, and that is the person who typically must pay for the damage caused by his or her negligence. If the circumstances surrounding your accident make it clear that one person was clearly at fault, then read no further! One of the related articles listed below should be your next stop. If, however, liability is not entirely clear or if there is shared fault, then fault is apportioned between the persons determined by the specifics of the law in your state (see below) on comparative or contributory negligence. When liability is shared in an auto accident, it is the insurer’s turn to determine the relative percentages of fault of the parties involved.

What is Comparative or Contributory Negligence?

Historically, if two people were involved in an accident and the injured party was even the slightest bit at fault, he or she would not be entitled to recover anything for his/her injuries or losses. This way of determining damages is known in legal circles as pure contributory negligence. For example, say Luther and Martin were involved in an accident. Luther hit Martin’s car while making a left turn onto a 2-lane street at night. Luther didn’t see Martin’s car because even though it was night time (and a dark one at that), Martin was not driving with his headlights on. Under a pure contributory negligence theory, Martin could not recover damages for his injuries because he was partially at fault for the accident. Sound pretty harsh? Actually, some states still follow this rule (Alabama, District of Columbia, Maryland, North Carolina and Virginia).

But most states now use some proportional form of comparative negligence that allows an injured party to recover some damages for his or her injuries, even if he or she was partially at fault. There are currently three variations: Pure comparative fault; proportional comparative fault at 51%; proportional comparative fault at 50%.

Pure Comparative Fault

In states that have adopted pure comparative fault as a measure of damages, if an injured person is partially at fault for causing his own injuries, his damages are reduced by the percentage of his fault. For example, say Michelle was injured in a car accident for which she was 80% at fault. Damages for her injury amount to $10,000. Michelle will be entitled to recover $2,000 for her injuries, that is, $10,000 less 80% or $8,000 for her percentage of fault. States: Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota and Washington.

Proportional Comparative Fault at 51%

The states that have adopted proportional comparative fault bar recovery if you are more than 51% at fault for the accident. In other words, you cannot file a liability claim and lawsuit against the other driver’s negligence if you were more than 51% at fault. For example, Dennis hit Teri’s car while driving in excess of 25 miles per hour over the speed limit while Teri was attempting to cross the road. Even though Teri was partially at fault for not waiting until the road was completely clear before crossing, the insurance company allocated fault to Dennis at 60% due to his excessive speed. Even though Dennis suffered a broken arm from the accident, he is not entitled to recover for his injury due to the fact that he was more than 51% at fault for the accident. States: Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming.

Proportional Comparative Fault at 50%

In states that have adopted the 50% bar standard in resolving auto accident claims, an injured person that is less than 50% at fault for the accident is entitled to compensation. If the injured party is 50% or more at fault, he or she is not entitled to recovery for the injury. For example, Richard and Susan accidentally hit each others’ cars while backing out of their parking spaces at exactly the same time. Both were not looking carefully enough when they backed up, and so both were deemed equally at fault for the accident. Neither one will be entitled to damages since both were 50% at fault for the accident. States: Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia.

How is Percentage of Fault Determined?

After an accident, it is the job of the insurance company claims adjuster to assign the relative degrees of fault based on the circumstances surrounding the accident. There is no secret mathematical formula for determining percentages of fault in accident injuries. You and the claims adjuster will negotiate and come to some agreement as to what, if any, your allocated fault is. Here is where an experienced personal injury attorney can come in handy. He or she will know how to assess the accident and advocate for the lowest percentage of fault on your behalf. If you and the insurance adjuster reach an impasse, a court of law is ultimately your next step to resolve the issue of fault.

Fault and Car Insurance

Insurance companies often offer extra coverage/protection (for extra money) to help pay for property damage and/or personal injury and medical expenses regardless of fault. So if you are injured in an accident that was mostly your fault and you are not entitled by law to compensation from the other person’s insurance, but you have extra coverage under your own policy, your insurance company will pay for your injuries. This extra coverage is called PIP (personal injury protection) or No Fault coverage. Under this scenario, you would file a liability claim with your own insurance carrier for medical bills and lost income, up to a specified maximum, without any discussion or disagreement about the circumstances of the accident and who was at fault. Whether you can file for further expenses against the other person who was at fault in the accident depends on your state’s laws. In many states, Uninsured/Underinsured coverage is required. This provides coverage for damages resulting from an accident with someone who either has no insurance or does not have enough insurance to cover your expenses. It also protects you if the other person flees the scene after the accident or is a driver of a stolen car.

Beyond the damages suffered, the degree of fault is probably the most important factor in determining how much you may finally recover for your accident injury. In most cases, both you and the insurance company will know (by the circumstances surrounding the accident) the level of fault for both parties. Was the other party completely at fault? Mostly at fault? Or only a little at fault? If you are in a comparative fault state, an adjuster will reduce your recovery amount by your percentage of comparative fault. If you were only 10% at fault, your damages total will be reduced by 10%. Your recovery will not be reduced by any amount if the accident was clearly someone else’s fault.

What You Can Expect to Recover for Property Damage in Auto Accident Cases

In the car insurance world, property damage is defined as damage to your vehicle (car, truck, SUV, etc.). The types of coverage that will pay for damage to your vehicle include collision, comprehensive, and sometimes, depending on the company, uninsured/underinsured motorist.

What You Can Recover

When your car is damaged in an automobile accident and you have coverage, your insurance company will either pay for repairs or “total” your vehicle. When an insurance company totals a vehicle, the vehicle is considered a complete loss and the insured is paid cash value for the vehicle. The actual cash value (ACV) is the cost to replace the vehicle with a vehicle that is of like kind and quality, etc., subtracting an amount that accounts for the totaled vehicle’s depreciation (age and wear and tear).

While it may seem like your car would have to be a complete wreck, a smoking heap, to be deemed totaled, in fact, this determination is made more on the basis of the cost of repair and the car’s worth. A car will be considered totaled if the repair costs exceed a certain percentage of the car’s worth. The percentage will differ from company to company, but usually ranges from 51% to 90%.

What To Do If You Disagree That Your Car is Totaled

Once your car is deemed totaled and you are paid actual cash value for it, your car is taken to a salvage yard where it is auctioned off. Then it is usually chopped up for parts. If you love your car, actual cash value may not seem like an equitable deal to you. When you sign a contract with your insurer, it is agreed between the two of you that the insurer will not have to pay out more than the car is actually worth. But the insurer also agrees to make you whole by placing you in the same spot (relatively speaking) as you would have been without the accident.

If you really want to keep your car, you can take the actual cash value from the insurance company, minus deductibles (in your policy) and minus what the insurer would have gotten at the salvage yard. You can then keep your car and make the repairs yourself. If you decide on this route, let the claims adjuster know right away. Once the car has gone to auction, it is much harder to get it back.

What You Can Expect to Recover for Property Damage in Auto Accident Cases

An auto accident insurance claim always begins with an accident. If you are involved in a car accident, there are some very important things you should do at the accident site to the extent you can. At the first opportunity, you should report the accident with your insurance carrier and begin the process of filing a claim. After you have submitted your claim, a claims adjuster (someone who works for the insurance company and deals exclusively with claims) will either call, write or email you regarding your claim. He or she will then look at your policy to determine the types of coverage you have, deductibles, and any coverage limits that may affect your claim.

If your claim is simple (i.e., fault is not at issue, the damage was minimal, and little or no medical treatment was necessary), the adjuster may have you get an estimate for repairs and then send you a check. You will have to fill out some paperwork, but you may not have to meet with the adjuster in person. If your claim is more complicated (for example, liability is unclear, you do not have enough coverage in your policy, or you do not agree with your adjuster’s settlement offer), then the negotiation process will take longer.

Investigating Your Automobile Accident Claim

In relatively complicated injury accident claims, adjusters typically must do some investigation in order to adequately assess the insurance company’s liability. The adjuster will comb through your policy and possibly contact witnesses to the accident, the other party to the accident, look at the police report if there is one, take photographs of the damages and scene of the accident and generally investigate your medical expenses by sending out requests to your medical providers for information regarding your treatment. If you are seeking to have medical bills covered, the adjuster will send you a medical authorization form for the release of your medical records.

The Settlement Offer

Once the adjuster has investigated your claim and looked at your policy, he or she will typically send you a settlement offer. The settlement offer will tell you what the insurance company is willing to pay on your claim. It could be all, it could be part, it could be none. This opening offer is typically on the low side. After all, the adjuster’s job is to save his or her employer money. But the adjuster also wants to close a case and thus is typically allowed a settlement range that offers room for negotiation. See When the Adjuster’s Settlement Offer is Too Low.

The Demand Letter

If you are confident about how much you think your claim is worth, you can preempt the adjuster’s settlement offer with your own settlement proposal (demand letter). Your demand letter would outline fault (if an issue), damages and ask for a certain amount to settle your claim.

So, should you make a demand first, or wait for the offer? See Making a Demand or Waiting for a Car Insurance Offer and Settling Your Car Insurance Claim: How to Write a Demand Letter.

Negotiating with the Claims Adjuster

If you’ve already received an opening offer from the adjuster, keep in mind that opening offers for settlement are almost always on the low side. Whether or not you think the offer is reasonable, read When the Adjuster’s Settlement Offer is Too Low for more information on how to evaluate that opening offer. Then, unless you’re willing to go with that opening offer (knowing that it’s too low) without an argument, you will ultimately need to negotiate with the adjuster for a higher settlement. See Negotiating Your Car Insurance Settlement.

If Your Auto Accident Claim is Denied

If your claim is denied in whole or in part, there could be many legitimate and reasonable reasons. Most have to do with limits in your coverage. You can check the denial letter against your policy to see if the denial seems legitimate or not. If you still think your claim was unfairly denied, read When Your Car Insurance Claim is Denied for more on what you can do next. But whatever you decide to do, don’t wait too long to do it. If you sit on your claim for too long, you may lose the right to sue in court to get your recovery. Each state has a statute of limitations (a time limit for filing a lawsuit in court). In most states, the statute of limitations for personal injury claims is 2 or 3 years, but could be shorter or longer. An attorney will be able to advise you.

Car Accidents Involving Government-Owned Vehicles and Government Workers

It is difficult to sue the government—federal, state, city or town, county—but it can be done. A government entity enjoys protection under a doctrine known as “government immunity” or “sovereign immunity” (both terms are used interchangeably). The laws over the years have established the situations where you can sue (and cannot sue) the government, including personal injury accidents caused by a government employee.

To put this in perspective, in most cases you have a right to sue the person legally responsible for injuries you suffered in a traffic accident. You are entitled to be made whole by the wrongdoer, which means to be paid for your medical expenses, associated damages, and property damage (or to have damaged property replaced). However, in dealing with government and government officials such as a police officer, a firefighter, an ambulance driver, a mail carrier, etc., you may find yourself holding the bag in the event of an accident, even if you were not in the least at fault.

Sovereign (or Governmental) Immunity

Incidents involving government vehicles are governed by the Federal Tort Claims Act. The FTCA provides a limited waiver of the government's sovereign immunity when it's employees are negligent within the scope of their employment. The government can only be sued "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. S 1346(b).

Governmental Immunity and Car Accidents

One of the more common exceptions to government immunity (where the government may be liable for its actions) is vehicle liability, when government employees are involved in auto accidents. These typically include emergency vehicles, such as police car pursuits, fire trucks rushing to a fire, or ambulances rushing through intersections to get to the hospital. Non-emergency accidents are also possible, like being rear-ended by the public school bus or side-swiped by a city public works landscape truck.

Government immunity laws in accident cases differ from state to state. The threshold for proving driver responsibility and fault is significantly higher when you’re suing the government (such as proving gross negligence) than what is required in a typical accident case involving a private individual. Cases involving emergency vehicles are even more complicated. The rules are typically different when a real emergency is involved. In real emergencies, the government is given great latitude to respond. But the level of latitude can also differ depending on whether or not the emergency vehicle had its sirens and lights on in a way that allows the emergency crew to respond while preserving the public’s safety.

If you collided with a mail truck and the mail carrier was at fault, you would sue the U.S. government under the Federal Torts Claims Act because the carrier is a federal employee.

Filing a Vehicle Accident Claim Against the Government

If you are seeking compensation from the government for damages caused by one of its employees, you will likely need to file an administrative claim with the government entity (city, county, state or federal) first. Most government entities give very little time in which to do this, usually between 30-180 days. Don’t miss this deadline or you may lose your right to recover for your damages. Some government units have a claims form that you can fill out and return to the clerk’s office of the government agency responsible for your accident. You may have to plug in a dollar amount on the claim form to settle your claim. If you must give a settlement figure, be sure to carefully calculate all the damages you may be entitled to recover as you may be limited to that amount in any future lawsuit. You will be sent a letter if your administrative claim is denied. You can, however, still sue the government in a court of law. The letter will tell you how much time you have to file a lawsuit.

Personal Injury Auto Accident Checklist: Document Your Pain and Suffering Claim

It’s very difficult to keep a cool head after an auto accident. Gathering evidence, talking to witnesses on the scene, taking photographs and taking down important information is the last thing you want to deal with following a jarring and perhaps traumatic event. However, if you want to make sure you are covered, and ultimately compensated, for all of the damage done, you will need to keep track of the facts, the paperwork, and the people involved.

Following is a checklist of information you will need to help support the duration and depth of your personal injury/pain and suffering claim. You can use this checklist to organize your information, information you will ultimately use to discuss your claim with an insurance company or to hand over to an attorney.

The Accident

Driver information: Obtain and exchange information with all other drivers such as name, license number, tag number, insurance company name, policy number.

Photographs: Take photographs of your injuries, the damage to all vehicles and of the scene of the accident in general.

Police report: Get a copy of the accident report if police responded.

Witnesses. Keep a record of all names, addresses, phone numbers and email addresses.

After the Accident

Medical expenses. Log all office visits, prescriptions, over-the-counter medications, laboratory services, physical therapy, hospital visits, treatments, medical documents, and x-rays, including names, dates of visits, amount charged and reasons for seeing the medical providers.

Lost work time: Keep a log of all time taken off from work as a result of the accident, including time off for medical treatments and/or the inability to function properly at work due to your injuries. Get a letter from your employer verifying pay and lost time.

Lost school time. Document all lost school time and/or inability to continue with school work as you did before the accident.

Photographs: Continue to take photographs of your injuries at different times after the accident. Write the date on the back of the photo.

Witnesses. Contact them for a written statement before too much time lapses.

Pain, discomfort, emotional distress, fatigue, tenderness, inconvenience, etc.: Keep a daily log of your thoughts, feelings and experiences on a day-to-day basis, documenting how the injuries have interfered with your daily life and relationships.

Car repair estimates and/or bills: Car repair estimates are necessary to get your car fixed. However, estimates provided by your insurance company can sometimes be lower than you might have expected. If unsatisfied with an initial estimate, take the automobile to a certified mechanic for another estimate. Be sure to save all of the bills and repair paper work associated with the repair.

Out of pocket expenses: Keep records/receipts of everything you’ve paid for out-of-pocket relating to or as a result of injuries suffered in the accident. For example, heating pads, ace bandages, child-care expenses, cancellation of a vacation trip or event, clothing, taxi service or rental car, etc.

What You Need to Know:

Seek medical attention immediately after an accident!

Do not admit fault immediately after the accident.

Diligently follow through with all medical treatments.

Do not answer any questions from the other side’s insurance company or attorney or sign any forms without approval from your attorney.

Do not settle your case until all necessary medical expenses, present and future, are known.

Keep copies of everything (all documents, bills, medical records, etc.).

Car Insurance and Auto Accidents: Are You Covered?

Insurance companies offer a variety of auto insurance packages, all providing varying levels of coverage. Most states require motorists have some minimal amount of insurance. Keep in mind, however, that purchasing just the minimum may be risky as minimal coverage may not be adequate in the event of a serious bodily injury accident.

Bare Bones Basic: Liability Insurance

Liability insurance is required by law in almost all states. It will pay for the property damage and personal injury expenses of others when you are at fault for an accident, up to the limits specified in your own particular policy. This coverage includes your legal bills. The bodily injury portion of the coverage includes medical expenses and lost wages. The property damage portion covers repair or replacement of items damaged as a result of the accident, your car not included (see Collision, below). The vast majority of states require motorists have at least liability insurance, and most require a minimum amount. Check out your state’s insurance department to find out your state’s minimum.

How About Me? Collision Insurance

Regardless of fault, collision insurance will cover damage to your vehicle, subject to any deductible. Period. Your insurance company will either pay for repairs or “total” your car (declare your car a total loss). (Alternatively, you can file a claim with the other person’s insurance company for the car’s repair and sidestep the deductible on your own policy.) If the insurance company totals your car, you will most likely get the actual cash value for the car, as opposed to the replacement cost. The replacement cost is the cost of replacing or repairing your vehicle with materials that are of similar type and quality without deducting for depreciation. Depreciation is the decrease in value of your vehicle due to age or wear and tear. Actual cash value is usually figured as the replacement cost minus the depreciation. Collision coverage can be expensive. You can consider increasing your deductible to lower your premium.

Beyond Car Accidents: Comprehensive Insurance

Comprehensive covers damage that occurs as a result of circumstances other than vehicle accidents. Comprehensive will cover loss due to theft, fire, vandalism, and natural disasters. There is usually a deductible and the insurance company will not likely pay more than the Kelley Blue Book value if your car is wrecked. Of course, if you have a beater for a car and the comprehensive coverage costs more than what the car is actually worth, then don’t even bother buying it.

Medical, PIP and No-Fault

Medical payments coverage pays for your medical expenses and those of your passenger in the event of an accident, regardless of who was at fault. This coverage applies when you are driving your vehicle or someone else’s vehicle with their permission. You and your family members are covered if you are injured as pedestrians. Be aware that some insurance policies obligate you to repay any benefits received later from the other driver or car owner. Do you need medical payments coverage when you are also covered by your health plan? Click here for an article on that subject. Personal injury protection (PIP) and No-Fault coverages are typically expanded forms of medical payment protection. Some states require these, in others it is optional. Some features include coverage for lost wages and child care.

Uninsured/Underinsured Coverage

Uninsured/Underinsured coverage pays for your injuries and possibly property damage when you are involved in an accident with someone who is at fault and has no liability insurance, or just has the bare bones limits of liability insurance. Some states require motorists to have this coverage.

Supplemental Insurance

These are essentially add-ons to your basic insurance policy. You can add on coverage for rentals, repairs or towing which could save you money in the long run.