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Information about retaining a bicycle attorney

I was just in an accident. What should I do?

There are a few steps that must be taken early on following an accident to make sure your damages are properly documented.

  1. First, take pictures of any visible injuries and any property damage sustained. This is imperative to do before you heal and as you heal.
  2. Second, make sure to keep receipts for any expenses you incur related to your accident.
  3. Third, if there was a traffic collision report generated for your accident, request a copy from the police department.
  4. And finally, if you have serious damages, make sure to consult an attorney before speaking with anyone from the driver’s insurance company.

How do I know if I need a bicycle lawyer?

Your best bet is to give us a call to discuss the specifics of your case. Typically, during the first five to ten minutes of discussing your case it will be clear whether your bicycle accident case requires the services of an attorney.  If that is the case, we will let you know.

Our job as lawyers is to protect your rights and ensure that you are treated fairly in all aspects of your bicycle accident case.  Oftentimes, the insurance company will tell you that you don’t need a lawyer, and that they will compensate you for all your medical bills and property damage.  But the insurance company always has its own financial interests in mind first and foremost.  Time and time again, bicycle accident victims who end up representing themselves obtain much, much less in ultimate settlement than cyclists who had an attorney advocating on their side.

Financially will I come out ahead if I retain an attorney? What about if the police report is in my favor?”

More than 9 times out of 10, a cyclist will come out ahead financially by hiring an attorney — even after paying the bicycle attorney the attorney’s contingency fee. This is due to many factors, but here are some examples.

  1. First, even where the police report squarely puts the fault on the driver, the police report is not binding on the insurance company. This means that the insurance company can still claim, at any point during negotiations, that the cyclist was partially or totally at fault.  However, if the cyclist is represented by a lawyer, the insurance company will have a strong disincentive to try this, because the insurance company will have to hire its own lawyer (typically at between $200-$350 per hour) to contend with the cyclist’s lawyer about who was at fault.
  2. Second, the insurance company may also challenge your damages, claiming that some or all of the cyclist’s damages/injuries either pre-existed the accident or else were partially caused by something unrelated to the accident.
  3. Third, a qualified bicycle-accident attorney can negotiate down the cyclist’s medical and health-insurance liens.  In a typical case, the medical providers or the cyclist’s own insurance company have a lien on any settlement obtained by the cyclist.  For example, let us say that a cyclist is injured in an accident and the cyclist’s own insurance company pays the initial cost of the treatment which is $8500.00. Even if the cyclist then manages to beat all the arguments presented by the adverse driver’s insurance company and somehow obtain a settlement of $9000.00 from the driver’s insurance company, the cyclist’s own insurer has a lien on the first $8500.00. Leaving the cyclist with only $500 for his/her trouble.  However, it is common in a situation like this for an experienced bicycle attorney to be able to negotiate the medical lien down to between $2000-$3000. Thus, even after the attorney takes his/her third (in this case $3000), the cyclist in this situation will generally come away with between $3000-$4000 instead of $500.  And this does not even take into account the fact that an experienced attorney will typically obtain a total settlement of between 2 and 10 times the amount an unrepresented cyclist can obtain.

What will the lawyer do on my case?

Your attorney’s job is to make this entire process easier for you. Your attorney will take over the vast majority of tasks related to your claim, including:

  1. interviewing witnesses,
  2. obtaining a copy of the traffic collision report,
  3. visiting the accident scene,
  4. reviewing applicable law,
  5. reviewing appropriate case law,
  6. ordering and summarizing medical records,
  7. ordering and calculating medical bills,
  8. hiring an investigator to find the driver’s policy limits or other information relevant to your particular case,
  9.  communicating with the insurance company,
  10.  writing a settlement demand,
  11. overseeing settlement negotiations,
  12.  guaranteeing the contractual validity of any documents signed in resolving your claim,
  13.  distributing the settlement funds to you and any lien holders,
  14.  negotiating lien reductions with your health insurance or medical providers in order to guarantee that you keep as much of your settlement as possible, and
  15.  regularly communicating with you during the entire process.

How will the lawyer be paid? What is a contingency fee?

In almost all bicycle-crash injury cases, your attorney will be paid by keeping a percentage of the final settlement or court award resulting from your injury. The percentage will be discussed with you and will be the subject of what is called a contingent fee agreement. The law requires a written contract between an attorney and the client which specifies the attorney’s fee so there will be no misunderstanding about the legal fees. The agreement will provide that your lawyer will work diligently on your case in exchange for the percentage or portion outlined in the agreement. As discussed below, however, you will be responsible for actual out of pocket costs, in addition to the attorneys’ fees, even if the case is not settled or won.

What types of costs will be incurred associated with my claim? Am I responsible for those?

At Bay Area Bicycle Law, we front all costs related to your claim. These costs will be documented and reimbursed from the settlement funds. In the pre-litigation stage, these costs are fairly minimal and rarely exceed a few hundred dollars. These costs include:

  1. medical record fees,
  2. printing and copying charges,
  3. traffic collision report charges,
  4. 911 recording charges,
  5. travel expenses associated with visiting the accident scene,
  6. and investigator fees.

If a lawsuit is filed, the costs associated with your case will increase dramatically and will include

  1. filing fees,
  2. (2) deposition costs,
  3. (3) costs for subpoenaing your records,
  4. (4) expert fees,
  5. (5) mediation fees,
  6. (6) jury fees, etc.

Information about our firm

Why do you specialize in representing cyclists?

The attorneys and staff at BABL are passionate about cycling and providing compassionate representation for all of our clients. We realize the high emotional costs of being a plaintiff and the immense pain & suffering that oftentimes accompany a bicycle accident. During this emotionally strenuous time, we pride ourselves on understanding  and empathizing with our clients. Moreover, we know that empathy and compassion necessarily go in hand in hand with thinking like a lawyer, and this strong sense of caring we feel towards our clients makes our representation even stronger. We show care and give comfort to our clients throughout the entire duration of the attorney-client relationship – we are there to help.

For all these reasons, the attorneys at BABL, as specialists in this niche area of the law, provide more empathic and compassionate representation to injured cyclists than other firms. The attorneys and staff at BABL are there to help our clients resolve the legal aspects of their case when the clients should be focused on recovering and getting their lives back together.

Are you really the only firm in Northern California that specializes in representing cyclists? I’ve seen advertisements for other “bicycle attorneys”?

There are other attorneys who advertise themselves as “bicycle lawyers”, but they are actually general practitioners that represent a wide-variety of personal injury cases. However, we are the only firm in the bay area that exclusively represents cyclists.


How do I pay my medical bills?

There are numerous ways that individuals pay for their medical care:

  1. their personal health insurance;
  2. medical payments insurance through your own auto insurance policy;
  3. workers compensation insurance if you were injured while working and as a result of working;
  4. your own personal funds if uninsured;
  5. the driver’s insurance (although this would be distributed at the time of settlement and not as the bills are incurred); or
  6. government health coverage, such as Medicare, Medicaid, Medi-Cal, etc.

We frequently represent clients that are uninsured or underinsured. For those individuals with medical bills they cannot afford, we make every attempt to contact the entity and have them generate a medical lien. Then, we can pay the lien with the settlement funds after the case resolves.

What damages am I entitled to?

There are two types of damages in each personal injury case: economic damages and non-economic damages.

  • Economic damages are the reasonable costs incurred as a result of the subject accident. This includes items such as medical costs, lost wages, property damage, travel expenses, etc.
  • Non-economic damages include pain and suffering and loss of enjoyment of life. These two categories encompass the pain, anxiety, embarrassment, and stress associated with the accident and your injuries, as well as the activities you are no longer able to do and enjoy as a consequence of your injuries.

In rare instances where the defendant acted with intentional malice, you may be entitled to punitive damages. Punitive damages are intended to punish the defendant for their conduct. However, punitive damages carry a higher burden of proof than normal damages and can be incredibly difficult to predict as they are allocated on a discretionary basis.

How can I keep track of all my expenses?

It is very important to keep track of your expenses as they incur because waiting will only make the process more complicated. One suggestion is to get a folder and keep all receipts, medical records, bills, EOB statements, reports, and letters received related to your claim in that folder. If you have retained an attorney, forward documentation onto your lawyer as soon as you receive it so they can keep proper documentation as well.

How are damages calculated?

Economic damages are easy to calculate — whatever amount was expended is the total of your economic damages. For medical expenses, you are only entitled to the paid amounts — including amounts that were paid by your health insurance provider. For your property damage, you are entitled to either

  1. the costs of repairing your property, or
  2. the fair market value of your property at the time of the accident — whichever is less.

Non-economic damages are much more complicated to calculate and include both (1) your pain and suffering and (2) loss of enjoyment of life. Examples of pain and suffering would include the initial pain of the accident, ongoing pain as a result of your injuries, and mental pain due to increased anxiety related to your accident. Examples of loss of enjoyment of life include your inability to ride your bike, inability to keep up with household chores, having to cancel a vacation due to your injuries, etc.

For most people, the pain associated with their accident is far more devastating than any financial loss. However, pain and suffering can be incredibly difficult to quantify. Most people have no idea what their pain and suffering is worth, which is why it is recommended to retain counsel if you have suffered serious injuries as a result of your accident.

What is my case worth?

This is a complicated question because each accident is unique. You could have two individuals with identical injuries, but the severity of the injury, the amount of treatment, the paid medical expenses, and other variables can dramatically affect the value and alter the outcomes of these two otherwise similar cases.

That having been said, here are some factors that affect the value of your claim:

  1. your medical diagnosis;
  2. paid medical expenses;
  3. amount of treatment received;
  4. if you required surgery;
  5. if you missed work;
  6. recovery time;
  7. permanence of your injuries;
  8. permanent scarring (also impacted by the location and prominence of the scar);
  9. perceived sympathy as a Plaintiff.

There are also facts that raise “red flags” to insurance companies, suggesting potential fraud. The following factors are potential “red flags” that can negatively impact your claim:

  1. delays in medical treatment;
  2. under-treating your injuries;
  3. failure to follow physician recommendations; and
  4. receiving an exorbitant amount of treatment relative to your injuries.

I have health insurance and my health insurance paid for my medical treatment. How does that affect my compensation?

You are entitled to the entire value of your PAID or OUTSTANDING medical expenses. It does not matter who paid for your treatment, you are still entitled to reimbursement for those expenses. However, your health insurance contract likely contains a “subrogation agreement” or “right to reimbursement clause” which does affect your ultimate take-home settlement.

The right to reimbursement clause entitles your health insurance to reimbursement of all amounts expended on treatment related to your accident. This reimbursement is only taken from a settlement or verdict (i.e. you are not personally responsible for reimbursing your health insurance) and only to the extent that a third party was responsible for your injuries. For example, if you were 50% at fault for your injuries, your health insurance is only entitled to 50% reimbursement.

Traffic Collision Reports

What significance does the traffic collision report have?

The traffic collision report is NOT admissible as evidence at trial. However, the report is very persuasive during the claims process and early on in the litigation process because insurance companies give great deference to the report, despite the fact that the officer most likely did not observe the accident firsthand. Furthermore, if the officer is called to testify at trial, he will most likely review the report in order to refresh his memory so the content of the report can influence how he eventually testifies.

The traffic collision report is in my favor. Does that mean liability will not be an issue?

Not necessarily. It is definitely good that the traffic collision report is in your favor. There is considerable prejudice against cyclists and many non-bike riding individuals view bicycles as a nuisance and feel cyclists should not be permitted to ride on the roads. This bias is pervasive and many insurance adjusters share these sentiments.

Beyond inherent bias, the insurance company looks for any evidence of fault. For example, if their insured (the driver) insists that you were responsible for the accident, the insurance company may use that denial as grounds for finding you at fault. Likewise, if the report includes facts that could be used against you, the insurance company will interpret them in the most negative light possible and may find you entirely or partially at fault. These negative facts include: failure to wear a helmet, riding at night without a bike light, passing the car in a manner that the adjuster feels was unsafe, etc.

The traffic collision report contains mistakes and/or is against me. What can I do?

Contact the reporting officer and voice your disagreement. The most effective method is to write a letter (instead of calling) so that you have a written record. Identify the portions of the traffic collision report that you disagree with or that contain inaccurate information. Provide the officer with the correct information or voice your disagreement in a non-confrontational way. If you think that the driver violated the California Vehicle Code, cite the provisions and explain how the driver’s actions constituted a violation.

If the officer changes his mind based on your arguments, he can supplement the report with his changed findings. However, as you may know from personal experience, it can be difficult to change someone’s mind once they’ve made a decision. But even if the officer continues to disagree, request that he create a supplementary report with your objections. That way there is a clean record that you challenged the traffic collision report from the beginning.

Mistakes in traffic collision reports are exceptionally common. Even if your report is riddled with mistakes, shoddy investigative work, and irrational legal conclusions, police officers don’t like feeling attacked. Please make any interaction with the office as polite and respectful as possible. If you eventually file a lawsuit related to the subject accident, that officer could be called to testify. You want him on your side!

The police were never called at the time of the accident and there is no traffic collision report. Is it too late to file one?

If the accident occurred within the last couple days, please contact the relevant police department and request to file a collision report as soon as possible. A collision report filed after the fact is less persuasive because the officer often times will perform only the most rudimentary of investigations. However, it is better than nothing.


What is negligence?


What does it mean to be at fault for an accident?

To be at fault for an accident means that your negligence contributed to the accident — i.e. was a factual cause of the accident. It is perfectly possible to violate the vehicle code without being at fault for an accident. If you violate a law or vehicle code provision where that violation caused or contributed to your accident, and that statute was intended to prevent such types of accidents, then there is a presumption of fault.

Frequently, there are multiple causes of an accident. It is very possible for both you and the driver to be at fault.

Is there a presumption of negligence if the driver broke the law?

Yes, this presumption is called negligence per se. Negligence per se requires that the driver violated a statute, that you suffered an injury, and that the statute the driver violated was intended to prevent such injuries. Here is an example of negligence per se: You are riding through an intersection legally on a green light when a negligent driver strikes you running a red light, in violation of California Vehicle Code section 21453(a). Red light laws exist to control traffic so as to prevent vehicles from colliding into one another at intersections. Because the negligent driver caused such a collision as a result of violating the red light law, they are presumptively negligent by law.

If I am partially or entirely at fault, how does that affect compensation for my injuries?

If you are entirely at fault for your injuries, you will not receive any compensation. If you are partially at fault, you are entitled to compensation to the extent that the other party is responsible for your injuries. A settlement of verdict number is therefore reached by calculating the total damages and then reducing those damages by the percentage of fault attributed to you. For example, let’s assume liability it 50/50 between you and the driver and you have damages totaling $10,000.00. You are entitled to compensation of $5,000.00 from the driver.

Settling with the insurance company

Should I speak with the driver’s insurance company?

Absolutely not! If you contact the driver’s insurance company, for any reason, you could ruin your entire case with one question or one statement. If you have already retained an attorney in your case, it is entirely unnecessary for you to contact or speak with the insurance company; your attorney should be handling that for you. Once you have retained an attorney, the insurance company is prohibited from having any personal contact with you for any reason.

Should I try to handle the claim on my own and only retain an attorney if it cannot be resolved

Dealing with insurance companies can be complicated and difficult. Insurance companies are for-profit and do not make money from paying out claims.

Most individuals filing an insurance claim have never been in an accident before. They do not understand the process, what information the insurance company needs, and what compensation they are entitled to. The insurance company will use multiple tactics that appear innocent but are intended to reduce your settlement. For example, insurance companies may ask you for repeated statements regarding what occurred in your accident. Of course, they need to understand what happened — but they are also looking for inconsistencies. They can use any inconsistencies or conflicts from statements given to accuse you of lying. Likewise, seemingly innocent statements (such as, “I feel fine today”) will be interpreted as an admission that your injuries were not serious.

Once the insurance company has determined that you are not a trustworthy witness or that your injuries were not serious, they become very difficult to negotiate with and will make very stingy settlement offers. Even if you retain an attorney after-the-fact, prior statements can dramatically increase the likelihood that a lawsuit must be filed in order to receive fair compensation.

 What information is the insurance company looking for?

The insurance company needs to understand how the accident occurred, what your injuries are, how those injuries affected you, and who you are as a person.

The insurance company will not take anything you say at face value. They are looking for objective evidence of your injuries. This means documentation from third parties. If you have an injury, but there is no medical record substantiating that injury, it is as if you were never hurt. If you have pain, but there is no indication of ongoing pain from your medical records, that means it wasn’t that serious. This is a cold and calculated system, but the insurance company will handle any claims you make with suspicion from day one because they view you as an interested and opportunistic actor.

The insurance company is also looking at you as a potential witness. Your age, marital status, job, etc. can actually affect the value of your claim due to societal prejudices. The insurance company wants to know if a jury will like you — and if not, they will offer you a lower settlement. This concept is offensive and ultimately, this outlook harms disadvantaged individuals by unjustly under compensating them for their injuries.

How long will it take for my case to settle?

It is impossible to predict with any accuracy how long it will take for your claim to settle, as many variables outside our control affect the resolution of your claim. Normally, we recommend waiting until you have completely recovered before negotiating a settlement. After you have completed treatment, we order all your medical records, medical billing documents, and any other necessary reports in order to guarantee that we have the proper documentation to substantiate your claim.

Claims are usually held up by non-responsive entities, be it hospitals, clinics, auto insurance companies, health insurance providers, or the clients themselves. We strongly recommend waiting to make a demand until we’ve gathered all proper documentation. Most delays occur because we do not want to prematurely make a demand to our client’s detriment.
After a demand has been made, settlement time varies on the responsiveness and cooperativeness of the insurance company. Sometimes dragging out negotiations can motivate the insurance adjuster to make a more fair settlement offer. Other times, the adjuster will come back immediately with the policy limits. Ultimately, it is the client’s decision whether they want to settle or push for more compensation.

After a settlement is reached, the client must sign a release waiving all legal recourse against the insured in exchange for the settlement funds. After the insurance company receives the release, they will mail the law firm the settlement funds. The law firm must then calculate expenses, the legal fee, and negotiate lien reductions with the client’s health insurance. Once these issues have all been ironed out and the client has granted permission to distribute the funds, the settlement gets distributed.

What can I do to help achieve a fair settlement?

Carefully document your injuries. Take pictures if you have visible injuries. See a doctor if you have ongoing pain. Make sure to mention all your symptoms when visiting a doctor so he/she can make note of it in their records. Save receipts for any expenses you incur related to your accident. Avoid giving information to the insurance company to the greatest extent possible. Think of information like ammunition — you don’t want to give them the very weapon they will use against you!
The most important thing is to be honest. Getting caught providing inconsistent testimony or lying is the worst thing that can happen to your claim. You lose all credibility as a witness and the insurance company will assume that you are trying to defraud them. If your case proceeds to trial, your inconsistent testimony and/or lies will be used to tarnish your credibility. Telling the truth is the easiest step you can take in resolving your claim.


Will I have to file a lawsuit to be fairly compensated?

Not necessarily – most claims settle without filing a lawsuit. However, there are numerous factors affecting whether your case will be settled at the insurance claim stage. Factors that increase the likelihood of litigation include:

  1. disputed liability;
  2. high damages;
  3. treatment red flags (gaps in treatment, mis-diagnosed injuries, pre-existing conditions, etc.);
  4. the cooperativeness of the defendant driver (or their insurance provider); and
  5. if you have made a statement that can be interpreted against you.

Otherwise, whether your case settles at the insurance settlement stage or at the litigation stage is entirely up to you. You ultimately decide whether the insurance settlement offer is acceptable and whether you want to file a lawsuit. And of course, your attorney will provide their expert advice in what option is most advantageous under the circumstances.

Aren’t lawsuits expensive?

Yes, there are many costs associated with filing a lawsuit. First, the filing and jury fees themselves are approximately $600. Second, you have costs associated with the discovery process that include subpoenaing records, depositions, investigation costs, and possible mediation costs — all before even getting to trial.
Only 2%-3% of lawsuits actually go to trial and reach a verdict. However, if your case goes before a jury, numerous other costs will accrue, including preparing exhibits and expert fees.

Does filing a lawsuit affect my legal fees?

Some contingency fee arrangements will increase if a lawsuit is filed. This is because the amount of attention devoted to your case will increase dramatically after a lawsuit has been filed. Litigation is a complicated and time-consuming process and because defense attorneys are paid by the hour, they have little incentive to settle early or work efficiently.

What does a lawsuit require of me?

If a lawsuit is filed, your deposition will likely be taken. This involves you to appear at a law office or court reporters office and give testimony under oath. Most depositions last a few hours and you cannot be deposed for longer than 7 hours without the court granting an extension. The defense is also entitled to have you examined one time by a doctor of their choosing.

Otherwise, the pre-litigation stages are not particularly time-intensive. You will need to be in contact with your lawyer periodically to provide responses to discovery. Also, you will need to be present at any scheduled mediation.

As trial approaches, you will need to become much more involved. You will meet with your attorney regularly to review case strategy. There will be a mandatory settlement conference requiring your presence. Finally, you will need to be present for jury selection and the entire trial.

How much time do I have before the statute of limitations runs?

You have two years after the date of your accident to file a negligence claim for your personal injuries. You have three years after the date of your accident to file a claim for property damages sustained.

What do I need to prove at trial to win?

The burden of proof for a negligence claim is “beyond a preponderance of the evidence”. A preponderance of the evidence is the lowest burden of proof. The Plaintiff must show that it is more likely than not that the defendant was legally responsible for the subject accident and that their damages were more likely than not reasonable and related to the subject accident. More likely than not is 50.01% — you would get an F in school, but conceivably still win at trial.
However, success at trial is not as easy as it seems. The Plaintiff still carries the burden of proof and must present evidence supporting all their claims at trial. This is not an easy task. Furthermore, due to tort reform legislation and insurance lobbying, there is a strong juror prejudice against Plaintiffs. These are obstacles we work diligently to overcome.
