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Knowing the Law

know the lawNothing is more important for an experienced personal injury attorney who is attempting to provide quality service for clients than a thorough, comprehensive, and up-to-date knowledge of the law on personal injury victims.  But attorneys aren’t graduated from law school with anything like this degree of expertise.  Passing a bar examination is just an indication that they have a basic level of knowledge and the ability to apply it to legal problems.  Achieving this level of knowledge takes time, effort, and experience.


Most attorneys will specialize in the practice of one particular area of law.  This is in some ways similar to how medical doctors specialize, but in other ways, very much different.  “General practitioners” in medicine tend to be doctors who enjoy working with a large number of patients and overseeing their medical care.  But general practice in medicine is itself a specialty – they aren’t actually “doing a little bit” of many areas of medicine, but rather managing the overall patient care.  General practitioner doctors don’t do a little heart surgery here and there mixed with neurosurgery on Tuesdays and psychiatry on Wednesday – all of this care is referred out to specialists.

“General practitioner” attorneys tend to mostly come in two types.  In some more rural areas and small towns where there simply aren’t enough potential clients to provide work for several specialist attorneys, it’s not uncommon to find attorneys who work their full careers, providing a broad range of services.  But it’s quite common to see younger attorneys who are going into business themselves for the first time who “hang out their shingle” and take on many different types of clients — this second variety generally ends up specializing in a particular area of law.

The reason for this specialization is simple – the law is complicated, and it’s very difficult to become an expert in more than one area of it.  Personal injury victims should look for lawyers who specialize in personal injury law and who have a proven track record in that specialty.  In the same way that you wouldn’t go to a neurosurgeon to have a skin rash diagnosed or expect your general practitioner to be performing brain surgery, it’s generally not best to hire a personal injury attorney for a family law matter or expect a business law attorney to be the best option for a significant personal injury case.  Look for someone who specializes.

State Law

Most personal injury claims are subject to state law and – if litigation is necessary – are filed in state courts.  Federal courts are an option, but they are not as often used for a variety of reasons.  Each state will have its own laws for civil litigation in general and for personal injury law in particular.  Additionally, there are court rules of procedure at both the state and local levels (county-level in California).  Newly-minted attorneys will have some basic training in state laws and civil litigation procedures, but there is a great deal to learn to become proficient and a great deal more to learn to become specialized.

At a minimum, a personal injury attorney must be fully knowledgeable and proficient in the use of state and local laws, regulations, and rules from the Insurance Code and state regulations that define how liability insurance companies must and must not handle claims, to the Civil Code and Code of Civil Procedure (in California) that define how, where, and when personal injury lawsuits are drafted and filed, to “discovery” rules (also in the Code of Civil Procedure) specifying the methods and requirements for plaintiffs and defendants to formally exchange information during the discovery process, to the Evidence Code and local court rules describing how testimony and documentary evidence may be presented at a trial.

Federal Law

Although federal procedural law is obviously applicable for those cases actually filed in federal court, one aspect of federal law that has become increasingly central to all personal injury law in the last few decades is the body of rules relating to health insurers’ reimbursement after personal injury settlements and verdicts.  These days, virtually all health insurance plans are written to give the insurer the right to recover some (or all) of the benefits they have provided for medical care related to a personal injury for which the victim receives settlement funds.  In many ways, this is one of the significant “growth areas” in personal injury law, and an experienced personal injury attorney will work hard to keep up to date in it.

These federal laws cover both government-sponsored insurance programs like Medicare and Medi-Cal (Medicaid), but also most employer-provided health insurance plans under the Employee Retirement Income Security Act of 1974 – better known as “ERISA.”  Failing to address health insurance plan reimbursement for these three categories can get both clients and attorneys in significant trouble.

Medicare reimbursement is handled by offices at the Centers for Medicare & Medicaid Services.  Medi-Cal reimbursement is handled through the Department of Health Care Services for the State of California.  ERISA health plan reimbursements are handled either through the individual health insurance companies that provided the benefits or by outside collection services that the health insurance companies hire to do the work.

Medicare and Medi-Cal have their own bodies of statutes and regulations describing how and when these reimbursements must be made, as well as options for automatic or negotiated reductions of the reimbursements, or in some rare cases, waiver of reimbursement.

The ERISA rules that govern reimbursement for employer-provided health plans are at the federal level and have been considerably defined and refined in case law out of the federal courts.  There is a primary division in these rules between “self-funded” and “non-self-funded” insurance plans.  In the “non-self-funded” plans, employers are merely a conduit for premium funds between themselves, employees, and the health insurance company they have selected – all the actual benefit funds come from the health insurer.  “Self-funded” plans are typical with large employers, who have enough revenues and employees to make it more cost-effective to “self-fund” the benefits themselves.  Non-self-funded plans are often still subject to many state laws allowing or requiring reductions in the amount of reimbursement due to the health insurer out of a personal injury victim’s settlement funds.  However, with self-funded plans, there is federal case law that may give health insurers the right to full and complete recovery of every penny they have paid for a personal injury victim’s medical care.  These self-funded plans must be dealt with before settlement to protect an injury victim’s rights to as much of their settlement funding as possible.  An experienced personal injury attorney will know the differences and rules for these health plans and will deal with them early to benefit clients at the bottom line.

Continuing Legal Education

A few years in law school is only the beginning of an experienced attorney’s educational process.  There are also requirements for “continuing education” — as is required in many professions – but this is just a minimum.  Much of the knowledge that a personal injury law attorney will acquire is through actually “doing” personal injury law — Ed Smith has been doing personal injury law for nearly 40 years.

But an experienced personal injury attorney will also have a passion for additional self-education.  He or she will actively participate in numerous local, state, and nationwide attorney organizations that have the goal of spreading legal knowledge and expertise to their members.  They will be regular participants in state and local bulletin boards, chat groups, and professional associations where the latest “tips and tools of the trade” are shared among specialist attorneys in their chosen field of law.  They will be frequent attendees at seminars, luncheons, and study groups where attorneys, doctors, insurance experts, legal service specialists, and many others share their knowledge and understanding of personal injury law and the injury victims who are served by the profession.

Additional Information

See below for additional information on how experienced personal injury attorneys handle insurance companies and their claim tactics:

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