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Posted by Susan J. Levy

The simple, but perhaps unsatisfying, answer is “maybe.” We often get calls from individuals who have been cited for causing an accident or have some other reason to fear being sued after an accident. They have insurance, but wonder if they need their “own, personal” attorney to defend them.

Recognizing that their insurance company will eventually provide them with counsel and that they will have to pay me out of pocket, I tend to tell folks not to worry about obtaining personal counsel if the injuries involved are not very serious and/or if they cannot afford to pay counsel out-of-pocket. I reassure them that their insurance company will provide them counsel, if necessary, and they can always call me later if they do not believe they are receiving good representation. If, however, there are serious injuries, and/or the potential client has personal assets (including real estate, bank accounts, investment accounts, etc. which could be in jeopardy) then retaining personal counsel is a good idea.

Defense counsel provided by the insurance company is obligated to represent its insured and defend against the lawsuit, but the insurance company will only indemnify the policy holder up to the limits of the policy. Consequently, if the value of the claim (the medical expenses and other damages suffered by the injured person) is greater than the amount of available insurance, the insurance company will not protect against the excess exposure. Personal defense counsel will, therefore, be focused on how to protect the individual’s assets from a judgment that could exceed the policy limits.

Additionally, while it may take an insurance company days or weeks to investigate the facts and circumstances of the accident before assigning counsel, personal defense counsel can begin an investigation immediately. Once retained, personal defense counsel can actively:

(1) Preserve and photograph evidence;
(2) Inspect the scene and vehicles involved;
(3) Interview witnesses;
(4) Meet with law enforcement;
(5) Make sure the other vehicle or any significant evidence is not sold or destroyed;
(6) Work with the insurance company and the lawyer ultimately hired by the
insurance company to make sure the client is getting good representation;
(7) Help protect any personal assets above and beyond the insurance policy limits; and (8) Provide peace of mind to the client.

To hire or not to hire personal counsel when you have been involved in an accident and fear a lawsuit, is a tough decision. Hopefully, you can at least find counsel to help you make that decision.