Self-Representation:
Pros, Cons, and How-to's

Thinking about representing yourself after a bike crash? It is possible – usually for smaller incidents, and with the recognition you’ll likely obtain less compensation than if you have a lawyer involved. If you’re considering self-representation, the following article will help you weigh the pros and cons, and make sure that if you go that route, you don’t forget key steps. We’re happy to provide feedback on whether your case is appropriate for self-representation during our free initial consultation if you contact us for one.

Whatever you decide, you should also look at the checklist following this article for a quick summary of important steps to take to preserve your rights after a bike crash.

When you are deciding whether to hire a lawyer, there are many factors to consider. Unfortunately, there is no simple answer or “one size fits all” solution to this question and each case is unique. Various factors you should consider include the severity of your injuries, the likelihood of ongoing medical treatment and/or permanent injuries, the complexity of any claim you may have for lost wages or lost earning capacity, whether fault will be disputed, the amount of time you have to learn the claims process, gather documents, and argue with the insurance company.

The short answer is smaller, simpler cases can be handled yourself, recognizing you may end up leaving money on the table with the insurance company. It is worth examining this in detail before making a decision if you are thinking of going that route.

Whether or not you decide to represent yourself or hire a lawyer, one thing remains the same: Preserve all your evidence. What exactly does this mean? Take photographs of your physical injuries because your bruise or laceration or black eye won’t be there in a few weeks or months, and you will need to prove that you suffered that injury. The photographs will help an insurance adjuster, mediator or jury understand your claim. Are you in a cast? Photograph that, too. Admitted to the hospital? Ask a friend or family member to photograph you there, too.

Same thing for your bike: Take close-up photos showing the damage from different angles. If you have some photos showing what your bike looked like prior to the crash, keep those as well, so you can prove that any damage was caused by the collision. Was your bike helmet scuffed or cracked or your clothing ripped? Photograph it all. Receipts from your bike purchase and repair estimates? Hang on to those, as well.

Medical bills are also evidence that will help prove your damages. Your medical expenses are recoverable damages even if you have health insurance (more on this later). Your W-2s or 1099s from before and after the crash can also be used to prove lost wages or lost earning capacity (more on this later, as well.)

Get the police and ambulance reports as soon as they become available. This may take some time and persistence, but these reports are important to your case, and the police report may have the names and phone numbers of witnesses to the collision.

If you are conscious (hopefully) at the scene of the crash, prioritize your safety and getting medical attention. After that has been handled, if possible, photograph damage to the motorist’s vehicle, their license plate (this should be in the police report, but do it, anyway, just in case), and their driver’s license and insurance card if they will allow it.

It can be helpful to keep all this information in a folder – and not just an online folder. Print your photos, too, and put everything into a hard copy folder – so you have it all in one place when it comes time to make your claim. If you decide to meet with a lawyer, having all this information in one place will help that lawyer understand exactly what happened to you.

Finally, refer to the checklist at the end of this article for a list of the types of evidence you should collect to prove your claim.

Whether you decide to hire a lawyer or represent yourself, it helps to write down the story of what happened beginning with your description of the crash (where, what, when, how, etc.). You should also describe your medical treatment after the crash and up to the present time. It can help to keep a journal specific to the incident and your medical treatment. Include things like how the bike crash and injuries have affected your life, your ability to work, your enjoyment of your hobbies, and so on. Documenting the facts and the emotional and psychological aftermath of the collision will help you tell your story coherently when you are negotiating with the motorist’s insurance adjuster, meeting with a lawyer you are considering hiring for your case or refreshing your recollection prior to your deposition or a mediation or trial.

When you are injured by someone else’s negligence, you may recover damages from them (or from their insurance company, if they have insurance). This type of case is handled in the civil justice system, as opposed to the criminal justice system. The type of case is personal injury, or to be more technical, a “tort” case.

In our legal system, most bicycle-related injury cases are handled in state court. In California, for example, this would be a Superior Court case. Every county in California has a Superior Court, which handles both civil and criminal cases. If you were injured on federal land, however, and you also have a claim involving a defective or dangerous condition on a road (in the Presidio in San Francisco, for example), your case could end up in federal court.

Liability just means, “Whose fault was this collision?” In California, a jury can assign a percentage of liability to each party. This is called “comparative negligence.” If you were lawfully riding your bike, following the rules of the road, for example, and a motorist ran a red light and hit you, a jury may very well decide that the motorist is 100% liable for your injuries and damages. Depending on the facts of each crash, however, the jury may apportion fault to each party as a percentage. It is important to note that even if a jury finds that you were relatively more negligent – say, 60% at fault – as compared to the motorist, at 40% fault, California law still allows you to recover damages from the motorist, but your damages are reduced by the percentage of fault assigned to you. In other words, just because you may have been doing something not-quite-legal when you got hit by a car doesn’t always mean you have lost your right to recover damages.

Liability is proved by presenting all the evidence you have showing how and why the collision happened. This can include statements by eyewitnesses (either in the police report or statements taken after the fact), your testimony, the testimony of the motorist or other party involved. Testimony is sometimes in the form of signed witness statements but can also be recorded in depositions (formal interviews after a lawsuit is filed in which testimony is given under oath in front of a court reporter). If your case does not settle, there will also be live testimony in a courtroom trial. There is also physical evidence (photos showing damage to your bicycle and photographs of your injuries, video from bystanders, a nearby CCTV, or your helmet cam if you had one), and expert witnesses (if a case goes to trial, each side may call expert witnesses to testify about things like how fast the motorist must have been driving, or how far out of the bike lane you were knocked when you were hit, or the physics of the crash, etc.).

A statute of limitations is the deadline for filing a lawsuit against the person or entity that caused your injuries. This can be surprisingly complicated, especially if there are multiple defendants in your case. For example, let’s say you are hit by an automobile but another, additional factor in the collision is a defective traffic signal or a dangerous condition on the road caused by negligent road design or bad signage. In a case like this, you may have a claim against BOTH a private individual (the motorist) and a public entity (the city, county, state or federal agency that caused the dangerous condition on the road). And the statutes of limitations may be different for each defendant.

In California, for example, you typically have two years from the date of the collision to either settle or file a lawsuit. If you have a case against a government entity, however, you may need to file a formal claim within six months of the date of the collision.

Failure to file a claim (a government claim or a formal lawsuit) within a statute of limitations will forever bar your ability to obtain compensation. For this reason, whether you decide to represent yourself or hire a lawyer, don’t delay in assembling your evidence and making the claim! Also note that simply sending a “demand letter” or engaging in ongoing negotiations with the defendant or their insurance company does NOT change or extend the statute of limitations in your case. For example, you may think that you are close to reaching a settlement with the motorist’s insurance company, but if the statute of limitations expires while you are negotiating, you will have lost forever your right to file a lawsuit.

Statutes of limitations are different in each state, so if you have any questions about what the applicable deadline is, put the six-month, one-year, and two-year anniversaries of the crash date on your calendar as reminders.

Damages in civil tort cases are financial compensation. This includes both economic and non-economic damages. Economic damages are quantifiable losses like wage loss, loss of future earning capacity, past medical expenses, provable expected future medical expenses, loss of household services, and the costs of repairing or replacing your bicycle, clothing, or helmet. Note that property damage is often a separate policy limit and can sometimes be settled separately (more on this later).

Non-economic damages are just as real as economic damages, but they are less quantifiable. This is sometimes called “pain & suffering.” If you have emotional or psychological after-effects from the crash, document them in a journal, and talk to your healthcare providers about this, as well, to make sure you are getting all the treatment that is appropriate to your situation. These injuries are also paid in the form of money damages, even if it is sometimes hard to put a dollar amount on them.

If you have lasting PTSD or other emotional or psychic injuries from the crash, a jury can and often will award whatever money damages it feels are appropriate given the evidence in your case.

A medical lien is a claim for reimbursement by a healthcare provider or your medical insurance company. When you recover damages for medical expenses, whether by a settlement or a jury verdict, the healthcare provider may have a right to take some of your recovery to reimburse itself for the medical expenses it paid out on your behalf related to your injuries.

Medical liens are perhaps the most complicated aspect of any case involving significant physical injuries and negotiating these liens can be a big part of the successful settlement of your case. This is one aspect of a personal injury claim that can greatly benefit from the assistance of a lawyer, because figuring out your legal obligations to pay any medical liens out of a settlement can raise complex issues of federal and state law. And the amount you owe as reimbursement to your healthcare providers when you settle your case can vary dramatically depending on whether you have medical insurance, and, if so, what type of insurance you have. Medicare, Medi-Cal, private medical insurance, and HMO providers (e.g., Kaiser Permanente) are all different in terms of how they assert and negotiate their medical liens, and this can be a very challenging part of a case to handle by yourself.

Before any lawsuit is filed, there is often an opportunity to negotiate the claim with the other side’s insurance company. The person doing the negotiating for that company is called an “adjuster” and it is their job to evaluate claims such as yours and either settle them or reject them. Keep in mind that the motorist’s insurance adjuster’s job is to pay out as little of the insurance company’s money as possible. Additionally, a typical insurance adjuster may be simultaneously handling dozens, if not hundreds, of different injury claims at any given time, so it may take some effort to get them to focus on your claim.

In addition to sending your medical bills, wage loss documentation, and bicycle repair or replacement estimates to this adjuster, it will help your claim to summarize everything in a “demand letter.” This is just a letter describing the incident, why you believe the other side is liable, and itemizing all your economic and non-economic damages. All the work you did earlier in gathering your evidence and documenting how the crash affected you will make drafting your demand letter a lot easier.

Feel free to email us at info@bicyclelaw.com for an example of a demand letter. When doing so, tell us a little about the crash so we can provide the best example.

When the insurance adjuster asks if you are injured, or if your injuries have all resolved, think carefully about the facts of your medical situation before saying “I’m fine now.” If you have good reason to believe that you have ongoing medical issues or some level of permanent disability or impairment resulting from the crash, don’t shut the door to compensation for those expected future medical expenses. It is better to stick with the facts and tell the adjuster exactly what treatment(s) you have already received, what your healthcare providers have told you regarding the likelihood of future necessary treatment, and/or residual impairment or disability. If you don’t know what your future medical issues will be, meet with your healthcare provider to discuss this in detail before you speak with the insurance adjuster.

Finally, you should refuse to settle your property damage claims until you get a fair and reasonable settlement offer on ALL your claims, including your physical injuries, medical expenses, and pain and suffering. Note that even if your health insurance paid for your medical treatment or most of it, you can still claim this amount as damages (see the medical liens section above).

There is no precise formula for calculating fair value in an injury case. And each insurance company has a somewhat different way of analyzing what a case is worth. In other words, they are trying to figure out how much they need to pay you to settle your case and avoid going to trial (more about going to trial later). If your medical injuries have resolved as much as they are going to resolve, you should add up all your economic damages (see above) and then multiply that times two or three to get a rough idea of how an insurance company will view damages in your case. The multiple is a ballpark way of factoring in the value of your non-economic damages. If you feel that your lasting, permanent, non-economic damages are more significant, however, this rough formula may not be appropriate for your case.

If you are representing yourself and have received an offer from an insurance company on your claim, feel free to email us for a free consultation and we can give you some sense of whether the offer is fair and reasonable.

Also note that prior to settling, you will need to understand and negotiate any outstanding medical liens and read the fine print in your own insurance policy (if applicable) on the subject of Under-Insured or Uninsured motorist claims (“UIM”) because you may be required to get approval from your own insurance company before settling your claim against the driver who hit you. Make sure you know whether this is applicable to you and comply with it, otherwise you may not be able to access additional compensation from your own insurance policy’s UIM coverage. Read more about UIM and other rider insurance considerations.

It is crucial to remember that signing a settlement agreement means that you will never be able to open your claim again in the future, even if your injury turns out to be worse than you thought it was at the time you settled. Additionally, even if a completely new injury from your accident is discovered after signing a settlement agreement, you still cannot re-open your case after you have signed a settlement agreement.

In most cases, probably not. Most lawyers who represent injured cyclists represent their clients on a “contingent fee.” In other words, your lawyer does not get paid unless and until your case is resolved in your favor in a settlement or jury verdict. Most personal injury lawyers charge a contingent fee of 33-40% of the settlement amount. The advantage of this is that the contingent fee arrangement incentivizes your lawyer to work efficiently and effectively on your case to get the largest settlement amount possible. In a smaller, less complex case, with clear liability, however, it is possible that you might be able to settle your case without a lawyer and get a similar settlement.

One of the risks of self-representation, though, is that the motorist’s insurance company is more likely to lowball your case if they know you do not have a lawyer (i.e., they might assume that you will not follow through with a lawsuit if negotiations break down). In fact, the insurance company may drag out the negotiations, hoping that the statute of limitations will expire on you, thereby barring any lawsuit you could have filed.

When an injured cyclist has a lawyer, especially one who the insurance adjuster knows is experienced in handling cyclist injury cases, the adjuster tends to take the claim more seriously and make settlement offers that are significantly higher. Litigation is expensive for the insurance company, too, and if they believe that you are serious about filing suit (i.e., you already have a lawyer with a track record representing injured cyclists), they may offer more in settlement to avoid the cost of having to go to trial against you.

So, will you recover as much money as you would have had you hired an attorney? In summary, probably not, but you will also not be paying the 33-40% attorney contingent fee. Would the recovery you could obtain with a lawyer, after the lawyer’s fees, be enough to exceed what you could get handling your case by yourself? Maybe, and maybe not. There is no easy way to figure this out because the facts of each case are different, as are the damages, and each insurance company has its own formulas for determining settlement offers. However, it has been our experience that in all but the simplest of cases, injured cyclists generally recover more damages with a lawyer, even when factoring in the cost of the attorneys’ fees.

There are several ways a bicycle injury case can be resolved. Some cases are settled prior to filing a lawsuit through negotiations with a defense insurance adjuster. Some cases go to mediation, typically after a lawsuit is filed. And some cases that do not settle will go to a jury trial. All of these can happen with or without a lawyer representing you. We would caution you, however, that going to trial without a lawyer – or even going to mediation without a lawyer – can be stressful and could potentially damage the value of your case. Evidentiary and procedural rules at trial are complex and can be challenging even for attorneys who routinely handle these types of cases. (This is one other reason why, should you decide to hire a lawyer, it is a good idea to hire one with experience specific to cycling injuries.)

At mediation the parties meet with a mediator (often a retired judge). The case will not settle unless all the parties agree on a settlement, and the mediator cannot force any party to do anything. Indeed, any party is free to reject a settlement offer made at mediation and choose to go to trial, instead. Nonetheless, mediation is often an efficient method of settling a case and it avoids the expense of going to trial.

Keep in mind that the total damages you recover in your case may not necessarily be higher at trial than the offer (if any) made to you at a mediation or during earlier negotiations with the insurance adjuster.

Representing yourself may be a good idea for simple, lower-value cases. For example: Let’s say you are hit by a car, liability is admitted by the other side, and your medical injuries are fairly limited, and they resolved quickly and without any long-term impairments or disabilities. If your medical bills and other expenses are straightforward, and you have no unique or complex pain-and-suffering claims, you may very well be able to settle your case without a lawyer (i.e., within several months of the crash) after sending all your documentation to the motorist’s insurance adjuster.

If you choose to represent yourself, however, be prepared to spend some time reading your insurance policies, assembling your evidence, and calculating your total medical bills. It will also take some time to write your demand letter to the motorist’s insurance adjuster. If you like learning a new skill and have time for this, and your case has limited damages and is not factually or legally complicated, this could be the right decision for you.

Generally, in more complex cases (i.e., disputed liability, multiple defendants, a case involving any government entity as a defendant, moderate-to-severe injuries, unresolved injuries with expected future medical costs, multiple medical liens from different medical providers, and/or complex wage loss or loss of future earning capacity claims), you will likely be better off hiring a lawyer who specializes in this area of the law.

If you have any questions or concerns about whether to hire a lawyer for your case, feel free to contact us for a free consultation and we can give you our advice before you make your decision.