Frequently Asked Questions About Personal Injury and Workers’ Compensation

Lucas Foust was a guest speaker on Trial Lawyer Prep Podcast. He spoke about different focus groups Foust Law Office uses.

Click here to listen to the podcast.

In Montana, we protect our own.

Much to the chagrin of these out of state insurance companies, Montana law protects people from being leveraged or forced into a settlement.  Insurance carriers have the upper hand.  They have the money, the lawyers, and doctors all in their pocket.  I will share a little secret with you that your insurance company would rather you not know:

When liability is reasonably clear, an automobile insurance carrier must pay all reasonable medical bills related to the injuries sustained in an automobile collision. 

Insurance carriers must pay these bills without asking for a release when the following criteria are met:

• Liability must be reasonably clear. This means that the insurance company’s policy holder must be clearly negligent.
• Medical bills must be directly related to injuries sustained in the automobile collision.
• The cost associated with the medical treatment must be reasonable in nature.

You are in absolutely no rush to settle your claim whiel the insurance carrier continues to pay your medical bills on time.  Montana law is clear that an insurance company is required to pay these medical bills before you settle your case.

Here is another secret:

Automobile insurance companies must also pay for lost wages when liability is reasonably clear.  As with medical bills, the insurance company must pay a reasonable amount of lost wages until the injured party is released to return to work.  To receive for prepayment of medical bills you must meet the same criteria applied to lost wages.  A claimant must also establish an anticipated wage.  You do not have to settle on the insurance company’s time table.  

Check out our articles, videos, and reports or contact us for answers to any questions you may have.

Insurance companies know that bringing a lawyer into a case will force them to pay more. They even completed a study to show just how much money they save when you try to handle your claim without a lawyer.

In its assessment of Allstate’s claims handling procedures, the McKenzie Group concluded that individuals who retain an attorney increase costs and claims at a rate of three times more than when a claim is settled without an attorney involved. To combat this increase in claims, Allstate and the other “big four” insurance carriers encourage adjusters to attempt to settle claims before even conducting any significant investigation. Insurance companies actually provide a script for adjusters to read to claimants when the topic of a lawyer comes up. Previous scripts have gone so far as to encourage claims adjusters to create a “friendly” relationship with claimants. If you have ever felt as though the insurance adjuster was a bit phony during your conversation, you were right. Remember one thing: Time is on your side. You do not have to file a claim so long as it is within Montana’s three-year statute of limitation.

Although not every claim requires an attorney, we believe that every claimant benefits from being informed. Visit the Free Info section of our website to find articles, videos, reports that will help you better understand the process insurance companies use in their efforts to settle your claim for an unreasonably low amount of money. The less you know, the more likely you are to end up with an unsatisfactory settlement.

My brother who lives in Alaska once told me, “It was so cold in Anchorage last year that I saw a lawyer with his hands in his own pockets.” 

Here are two of many questions I recommend you ask before finding out there is a more than one set of hands in your pocket:

How long is your contract?

Is this lawyer going to play “gotcha” with you?  Your “B.S. alarm” should go off if you are asked to sign a 15-page contract that includes every possible scenario.  Believe it or not, the State Bar of Montana actually encourages its members to use a contract that is 15 pages long! 

A lengthy contract simply perpetuates the distrust the public has with people in our profession.  These contracts are not written to help you, they are provided to put you on the defensive from the very outset.  You should not need a lawyer to review a contract from another lawyer you are thinking of hiring.

Although I am two generations off the farm, in my household, a handshake and looking into someone’s eyes means more than anything on a piece of paper.  At our office, we follow a simple principle: You cannot expect anyone, especially a client, to trust you until you trust them first.

We believe our simple, one-page contract in personal injury cases is a reflection of the trust we have in our clients and a statement about the relationship we are about to enter.

Do you like your job?

This is probably the most important question you can ask in the process of hiring a lawyer.  There are stresses placed on lawyers that make their jobs difficult. However, happiness among lawyers is not as uncommon as you might think. The ABA Journal completed a study of lawyers who found their work satisfying and were happy in their work.  You may want to take a look at the survey and consider the results: A lawyer who likes his or her job is better at that job.  A lawyer who likes his or her job is less likely to take that job for granted and less likely to take you for granted as a client.  

I really do enjoy my work as an attorney.  With the possible exception of playing professional baseball, I cannot imagine a more fun and enjoyable line of work.  

In addition to these two questions, I recommend at least eight more questions that you should ask before hiring a personal injury attorney. Our library also has videos, guides, and other information that we hope you find useful. 

Here is one that you might not have heard:  What is the difference between a mosquito and a lawyer?  One is a blood sucking parasite who carries around disease, the other is an insect.  

Before you get bit and your family is put in jeopardy, here are a couple of questions you might want to ask your personal injury lawyer who has asked you to sign a contract:

How many cases do you have right now?

Law firms with huge advertising budgets and big overhead tend to take on way too many cases.  If the personal injury attorney you are thinking of hiring is carrying over 50 cases at a given time, it is very unlikely your case will receive the type of attention it needs.

At our firm, we limit the number of complex personal injury cases to no more than 10 at a time.  We will take on some workers compensation claims which do not require as much individual attention as the remedies are driven by statute.  Finally, we handle a handful of serious criminal defense cases but only when we truly believe we can provide the type of attention required in such serious matters. 

I may have referred you to this page after we have decided not to take on your case.  If that has happened, please understand that our decision not to handle your case does not necessarily have anything to do with the merits. We are very careful with our time and want to provide the best representation we can for the folks to who have agreed to provide us with the opportunity to represent them.  

How often do you conduct jury research projects?

Don Keenan of Atlanta, Georgia, is one of the nation’s best trial attorneys.  He says, “it is legal malpractice not to conduct focus groups on a significant case.”  If the law firm you are considering does not conduct focus groups on a regular basis, and your case may have a value of over $250,000.00, that firm is not prepared to handle your case and you need to find another law firm!

A strange metamorphosis occurs when people go to law school. Not only do many people become bullies, law school graduates have often left their common sense back on campus. Conducting focus groups on a regular basis has not only become common, it is the new standard for attorneys who call themselves trial lawyers.

In addition to working with clients at Foust Law Office, my wife, Heather Foust, owns and operates Seventh Amendment Productions. Through my wife’s business, we have organized and led over 100 jury research projects, more than anyone in the state of Montana.  Other attorneys come to us to help figure out how their case will play in front of a jury.

To find out more about Foust Law Office and to inform yourself about your personal injury claim, visit our library and other sections of our website. We are constantly adding new material, and there is no cost for any of the educational information we provide.

What does a lawyer get when he takes Viagra? Taller!

Any lawyer you hire to handle a serious personal injury claim must be willing to get to know you and your family very well. Below are two more questions I highly recommend you ask before signing a contract with a personal injury attorney:

1. When was the last time you went to a client’s house?

I am fairly certain this is something you never thought to ask. However, it tells more about the person you are thinking of hiring than nearly any other question you can ask. An attorney who goes to his or her client’s home has a completely different relationship with a client than someone who does not. If you have a very serious case, your attorney should know you very, very well.

I cannot think of a more important part of learning about a person than visiting his or her home. It is almost impossible to fully understand the challenges of a profoundly injured person without visiting his or her home. Attorneys who do not visit with their clients, have meals with them, and take the time to really understand what they are going through simply do not get it and are not deserving of your business.

2. Can you give me a list of three previous clients I can call?

If you do not get a list, you should probably look for another attorney. Also, understand that the attorney is not likely to give you the names of people who have been unhappy. These are the best of the bunch and people the attorney believes were satisfied.

Now that you have the list, here are some ideas on what to ask previous clients:

1. How did the attorney’s staff treat you?
2. How long did it take for the attorney to return phone calls?
3. Did you receive all of the documents in your case?
4. How did the attorney make you feel while he or she was representing you?
5. Did you feel as though the attorney judged you?
6. Did the attorney make you feel like you were important?
7. Did the attorney talk to your family members and friends while he or she was representing you?
8. Would you feel comfortable speaking with this attorney about something other than the case he or she handled for you?

What is the difference between a jellyfish and a trial lawyer who does not take cases to trial?  One is a spineless poisonous blob, the other calls himself a trial lawyer.

Here are two questions you must ask a personal injury attorney before you sign a contract:

How many cases have you taken to a jury trial?

Although quantity does not always mean quality, if the attorney you want to handle your case does not have a track record of taking cases to trial, chances are the insurance company will not take him or her seriously.  As litigation expenses have increased and courts have become more and more crowded, an entire generation of attorneys (those born after 1975), have little or no jury trial experience. Being a successful trial attorney is an art and not a science. Successful trial attorneys are not what you might think and the attributes that make trial attorneys successful today are different than the attributes that made trial attorneys successful 30 years ago.  

I am proud to say that I am a graduate of Gerry Spence’s Trial Lawyer College in DuBois, Wyoming.  In case you have not heard of him, Gerry Spence is, as my classmate Chris Hammons explains, “the Michael Jordan of trial lawyers.”  In Gerry’s program, we learned how to understand ourselves in such a way that we can connect with jurors.  More than anything, we learned that we have to be honest with ourselves before we can expect others to be honest with us.  Ask yourself:  Is the lawyer you are considering honest with him or herself?

Do you have malpractice insurance?

This may seem like an awkward question to ask but it is very insightful as to how the attorney handles his or her own affairs.  Although the state of Montana requires all of us to have automobile insurance, there is no such requirement for attorneys to carry legal malpractice insurance. 

An attorney who carries legal malpractice insurance tends to put his clients first.  Things happen in the practice of law, and nobody is perfect.  If an attorney makes a mistake, his or her clients should not have to suffer.  Although this is a difficult question to ask, you should. 

Foust Law Office carries malpractice insurance through Lloyd’s of London.  If you are interested in information confirming our coverage, we are happy to provide it. 

We also suggest that you take a minute to look around our website for more information on how to find the right lawyer for your case, every time.

Insurance carriers want you to believe that if you use the medical pay portion of your own insurance policy, or if you file a claim under the Underinsured Motorist portion of your policy, your rates will increase.  This is a lie!

An insurance carrier may not increase your premiums for filing an insurance claim under the medical pay, underinsured motorist, or uninsured motorist portions of your policy.  These policy provisions are based on a no-fault situation.  If you did nothing to cause the collision, the insurance carrier cannot increase your premiums.  This is because insurance carriers hire actuaries and assume a known risk.  Because you did nothing to cause the automobile collision, making a claim under these portions of your policy cannot be used against you when determining an appropriate premium after you make a claim.

If you think of insurance as legalized gambling, this law makes complete sense.  It would make no sense for a roulette dealer to force you to increase your bet after you won.  You would look for another casino if the dealer did this and a casino is always glad to take your money both before and after you win.  The odds are always in the insurance company’s favor just like a casino.

I invite you to read the following article:  www.bbc.com/news/business-38905963.  The author raises an excellent question:  Why is insurance good but gambling is bad?  Insurance companies are no different, no better, and no worse than casinos.  The odds are always in their favor.  The government requires you to play a gamve of chance.  Insurance companies, like Allstate are now paying as little as 40% of the funds they receive on claims.  Insurance was created to benefit a community by spreading risk, not to allow companies to reap massive profits.

To learn more about the claims process and to become informed as you go through the insurance gauntlet, I encourage you to visit our guides, videos, and other educational material.  Everything in our library is completely free.  

What is the difference between a lawyer and a boxing referee?  A boxing referee does not get paid more the longer you fight.

Knowing a good lawyer from an average lawyer or someone who is in over his or her head can be difficult.  Fortunately, lawyers know who are good at their job and those who are fakers.  You should ask these two questions before signing up with a personal injury attorney:

Do you teach at continuing legal education programs?

Attorneys can spot a quality attorney and can tell you who is less than competent.  Although attorney referrals are helpful, one of the best ways to find out who is well-respected in the legal community is to find out who is asked to teach at continuing legal education programs.

I have been honored to speak at a number of continuing legal programs in Montana, Idaho and Wyoming.  I have even organized an invitation-only program in Bozeman bringing in attorneys from around the country to speak on effective trial practice.

What do you like about your job?

This question will tell you a lot about the personality of the attorney you may hire.  Some attorneys really enjoy conflict while others may appreciate reaching a peaceful and amiable resolution to the case. 

When we refer people to attorneys we consider what the person wants out of their case.  If you simply want to peacefully move along from your divorce, there is one type of attorney.  If you know it is going to be a knock-down drag out battle, we will refer you to another type of attorney.

I appreciate getting to know my clients.  I appreciate finding ways to make their lives better after a very difficult time and will do anything to make sure their lives are better after working with my firm than before.  Although money is nice, and we do get a lot of money for our clients, I appreciate creating a great experience for my clients when they enter into the legal process.  

These two questions are just the beginning.  I recommend a number of other questions in my article entitled the Top Ten Questions To Ask a Personal Injury Lawyer Before Signing a Contract. Like all of the educational information on our website, this report is free. 

Hopefully you already know the little secret that I share with the general public that most attorneys are afraid to say:  No all cases require an attorney.  You can handle your own insurance claim and many times, attorneys have no business getting involved in a claim.

What you are up against can seem daunting.  However, educating yourself on the types of insurance you purchased prior to your collision is a good first step toward taking control of your situation.  You have an absolute right to know how the process works and any attorney who is reluctant to provide this information to people who do not have an attorney does not deserve to have their own clients. 

Regardless of whether you hire an attorney, you should know important information about the insurance company you are dealing with.  First, insurance companies are out for their own interests, which are often in direct opposition to your interests.  This is not to say that people who work at insurance companies are bad people.  To the contrary, I have found most to be very pleasant.  However, insurance companies are not in the business of feeling sorry for you.  They are in business to make money.  The adjuster managing your case handles dozens f other cases that also need to move to a conclusion.  They have no time to feel sorry for you.  You must be organized.  Before you do anything further, stop and gather the following documents:

1. Your health insurance card;
2. Any other careds related to how you receive medical treatment (i.e. Medicaid card, Medicare card, Tricare, etc.);
3. The declarations sheet for your automobile insurance.  This document comes with your insurance policy and lists the coverages you purchased.
4. A copy of your automobile insurance policy;
5. A copy of your disability policy;
6. Copies of your pay stubs for the past four months; and
7. A copy of the police report or incident report related to the incident that caused your injuries.

Keep all of this information in a binder and in an organized manner.  Keep all correspondence you receive from the insurance company, even if you believe it is not important.  

Taking this first baby-step toward managing your claim is important.  For more information about how to best handle a claim by yourself, spend more time looking at the Free Info section of our website. Again, this is just the first step.