A Guide on How Fault Is Determined After a Car Accident

When a traffic collision occurs, one or more vehicles collide with one another. Determining who was at fault is quite tricky. There are various factors that need to be considered before fault can be determined. Fault can be determined at the scene of the accident through a police report, by insurance companies, or in court.

Accidents are more common than you imagine, and you may inevitably get involved in one. Annually, millions of reported crashes occur that lead to injury, death, or just property damage. But even those with only property damage tend to be complicated and painful.

These traffic collisions involve complicated legalistic processes with complicated words, at-fault fighting drivers, and greedy and money-grabbing insurance companies. What will actually happen and the amount you receive as compensation depends on the laws of the area where the accident occurred.

When it comes to determining the fault after a car accident, there are some ways you can go about this. So if you are wondering about how is fault determined in a car accident?” then continue reading to learn all about this.

1. The drivers involved in the collision

The drivers involved in the accident can decide who was at fault by giving their statements when they are at the scene. Usually, drivers involved blame one another for the accident.

But sometimes, the accident shakes up drivers so much that they put the blame on themselves in the spur of the moment.

They admit fault by saying things like “I did not see the sign” or “I did not see the vehicle,” etc. And this is usually never a good idea because things you say will be held against you later on, and you will be unable to recover the compensation you deserve.

So if you are wondering “what can you do right after an accident?” then it’s simple. Follow the below tips to keep your rights protected.

  • Take pictures, and record videos of the scene of the accident, damaged vehicles, and the location where it occurred.
  • Note down the location, time of day, road conditions, and weather conditions at the scene of the accident.
  • Record names, phone numbers, and other contact information like their licenses and insurance ID cards of the other drivers.
  • Also, note down the model and make of the vehicles involved.
  • Take contact information from the witnesses present at the scene and also record their statements.
  • Don’t talk unnecessarily with the drivers and other people at the scene and wait for the police to arrive.
  • Record your statement to the police and hire a lawyer as soon as you can.

2. The police report

As soon as an accident occurs, the police are called in. When they arrive at the scene, their job is to determine casualties and call for medical help if needed. It is also their job to assess the scene of the accident to record the damage done to vehicles and their location; this will make it clear as to who caused the accident.

For instance, if a vehicle was stopped due to a red light and crashed into from behind or a vehicle that swayed past the stop sign and T-boned the other vehicle, then the question “who was at fault?” can be easily answered.

In addition to this, distracted driving or reckless driving could have caused the accident. And this is why they also take witness statements as well as the drivers and passengers of the vehicles. So the questions asked by the officers should be answered correctly as they will be similar to the questions asked in court.

So make a mental note or record your statements down so that your story is straight before you answer the officers. Even though the police report is not flawless, it is still a public document that will be read by everyone involved.

In case the police did not show up, then it’s your duty to file the accident report in person at the nearest police station or online.

This police report will also help you if more injuries or damage to the vehicle comes to notice than previously thought, or if the other party decides to sue you for the injuries and damages. And you also need this report if you want to file an insurance claim.

3. The insurance companies

With advancing technology, filing insurance claims is becoming easier, along with the pictures from the accident. The algorithms make it easier to determine the damage. Once claims have been found with respective insurance companies, the insurers will decide the result.

You can also file a claim for the damage to your vehicle if you have collision coverage. If the other party is at fault, then your insurance company will seek compensation from the other party’s insurance company in the process of subrogation.

In this process, your insurance company will ask the other driver’s insurance company to reimburse for the collision claims so that you can get a refund of deductibles. But this process can be taxing and unpleasant because only some insurance companies want to settle; others will try to get away with paying you nothing.

4. The negotiations

When the insurers cannot agree or settle on one amount, then the case is usually resolved through arbitration. A private company resolves the disputes by determining the extent of the damages and who will pay what.

Large insurance companies usually solve the case using this method. Through arbitration, the number of lawsuits is greatly reduced, and the process becomes easier and less costly for insurance companies. This whole process is done electronically, thus ensuring more efficiency.

5. The court

If negotiations do not work and a settlement is not reached, then the case will go to the court, where the jury decides your fate. Once they reach a decision, even the court cannot change the facts. However, only a number of cases get this far, with only 1 to 2% of the claims pending in a lawsuit.

This is because bringing the case to court and in front of the jury is expensive and time-consuming. So most of the cases are settled before the trial unless a lot of expenses and money are at stake. In addition to this, there is a standard known as “contributory negligence,” which means that you as the plaintiff may also have contributed to the traffic collision.

Even though your vehicle was crashed into by the other driver, if you had been more attentive, you could have switched lanes and avoided the accident. In other words, if you may have contributed even a percent to the accident, then you cannot sue someone else due to “contributory negligence.”

In some areas, the “comparative fault” standard is used more often, in which the fault is portioned between the drivers involved depending upon how much they contributed to the accident.

For instance, if it was determined that the other driver was 80% at fault for the accident, then you can recover this much for the damages. But the other driver can choose to sue you for the 20% of the collision you were responsible for.

Then there is another standard, “modified comparative fault,” where the more at-fault party cannot recover anything from the other party involved in the accident. So if you are more than 50% guilty of the accident, then you cannot recover anything.

And this becomes more complex when multiple vehicles are involved in a traffic accident. This all be very confusing, which is why you need to hire a lawyer from Kendall Law Firm – Harrisonburg, VA, who will accompany you throughout the trial and help you recover the most you can.

What to do after a traffic accident?

It is imperative that you know what to do after you become involved in a traffic accident. It is important to remember that you should not make it easier for the other party, as well as their insurance company, to put the blame for the accident on you. And so this is why you should avoid unnecessary talking and never admit fault even if you think you are somewhat responsible.

You should also gather evidence when you are at the scene of the accident. Take pictures and videos of the scene of the accident, damaged vehicles, and the area. Also, note down the contact information, including the number plate, license, and insurance ID of the other drivers. In addition to this, don’t forget to take contact information from the witnesses as well as their statements about what they saw happening.

It’s advised to consult with a good lawyer as soon as you can to talk about your case, the legal options you have, and what you can do to recover compensation. A knowledgeable and experienced lawyer will know how to handle your case.

They will collect evidence to investigate who was at fault, negotiate with insurance companies on your behalf, file paperwork before deadlines and abide by the statutes of limitation.

The bottom line

Being involved in an accident is not a good experience; far from it, it is devastating and overwhelming. This is why you need to know what you should do after you are involved in an accident. Knowing this will help you protect your rights and allow you to recover compensation for your injuries and damages.

The one who was at fault in causing the accident will be liable to give compensation to the driver who caused injury and damage to. If you were involved in a traffic accident recently, then a lawyer will help you out no matter how it occurred. They will help you seek the financial compensation that you deserve for your injuries and damages. So get in touch today.

What Is Collaborative Negotiation?

Collaborative negotiation is a special form of conflict negotiation. Article 1738 Ger. W. defines it as “a voluntary and confidential procedure of dispute resolution by negotiation involving conflicting parties and their respective attorneys and the latter acting under an exclusive and limited mandate of assistance and advice to achieve an amicable agreement.”

The disputes listed in article 1724 Ger. W. can be the subject of collaborative negotiation. In general, all private law conflicts of a patrimonial nature and non-pecuniary conflicts that are amenable to settlement can be the subject of a collaborative negotiation.

The extrajudicial collaborative negotiation originates in the agreement between the parties. Judicial collaborative negotiation arises from the agreement of the will between the parties during a lawsuit.

A collaborative negotiation protocol is drawn up (“contract”). This protocol is signed by the participants and the collaborative lawyers. This protocol identifies the parties, defines the conflict, includes the confidentiality principle, voluntariness, and so on.

Please note that signing this protocol suspends the statutes of limitations regarding the conflict, but not the expiration periods. The expiry can only be avoided by issuing a summons. Also the taking of protective and provisional measures is temporarily not allowed anymore.

Although the legislator speaks of a “procedure”, it is essential that the participants negotiate with each other themselves. The parties undertake not to initiate or continue litigation.

Furthermore, article 1739 Ger. W. that “only collaborative lawyers may conduct the collaborative negotiations”. This exclusivity is also confirmed by the Constitutional Court since there are other forms of negotiation and mediation that can be carried out by other lawyers and experts.

A collaborative lawyer is a lawyer who has followed special training, acquired the required knowledge, subscribes to the regulations for collaborative lawyers and is registered on the list of collaborative lawyers. Their role is limited to providing assistance to the client (negotiation coach). The collaborative lawyer ensures that his client’s agreement to the collaborative negotiation agreement is pure will.

Should one of the parties withdraw from the collaborative negotiation, the collaborative lawyers may no longer intervene in a lawsuit between the same parties in the context of a dispute that was the subject of the collaborative negotiations (withdrawal obligation).

According to the Constitutional Court , this obligation to withdraw does not prevent the right to a free choice of lawyer. This right continues to exist in full in other cases and, moreover, the participants freely choose to take part in the collaborative negotiation.

The documents prepared and communications made in the course of the collaborative negotiation are confidential. On the other hand, the information and documents that existed before the start of the collaborative negotiation are not covered by this confidentiality principle.

However, an essential feature of collaborative negotiation is the spontaneous provision of full disclosure of information. In order to prevent transferred information and documents from being used in the lawsuit that follows an unsuccessful collaborative negotiation, the parties may agree in writing that this information is subject to the confidentiality of article 1745, §3 in conjunction with article 1728 Ger. W.

The collaborative negotiation process shall proceed as follows:

  1. Initial consultation between the collaborative attorney and his client;
  2. Collaborative lawyers contact each other;
  3. Preparation of the collaborative negotiations by the collaborative lawyer and the client;
  4. Preliminary consultation between the collaborative lawyers;
  5. First collaborative consultation session (first meeting);
  6. Debriefing between the collaborative lawyer and the client and between the collaborative lawyers themselves;
  7. Further preparation meetings with the client and consultation sessions between the participants and the collaborative lawyers;
  8. Draft text of the agreement.

After the clients agree to the draft text of the agreement, the lawyers organise a signing session. As a last resort, the participants and collaborative lawyers will then formally confirm and sign the agreement.

A collaborative negotiated agreement is in principle legally enforceable (settlement agreement). The facts and rights of the parties are laid down in a binding way. If the parties have made mutual concessions, this is referred to as a settlement agreement.

This agreement is binding on the parties and is therefore, in principle, non-confidential.

Note: this agreement can be enforced in court. If necessary, the collaborative negotiating agreement can be converted into an enforceable title by including it in a notarial deed or in a court order.


Roxanne Sleeckx

Roxanne Sleeckx

Potential impact of Brexit on the law firm market

With Brexit negotiations continuing in the United Kingdom (UK), there is little clarity as of yet on how businesses will be able to operate both in mainland Europe and cross border once the UK leaves the European Union (EU) in March 2019.

As a regulated profession, law firms potentially face greater uncertainty — the regulations directed by each individual bar association must be carefully considered in conjunction with any agreement reached between the UK and the EU.

What’s happening at present in law firms with UK offices?

Brexit remains high on law firms’ agendas, particularly with respect to the uncertainty surrounding firms being able to provide legal services as normal after March 2019. Conversations around restructuring have been brought to the forefront.

Many law firms, UK-headquartered firms in particular, are approaching their final accounting period of trading before the two year Article 50 process expires in March 2019. For some businesses, it is therefore impractical to wait to see how Brexit negotiations progress and how local countries’ bar associations respond. Any action is likely to take a period of time and require HMRC (and potentially other) clearance or clarification.

What should your law firms be doing?

Each business will need to consider its current legal structure, the tax and regulatory rules (including around management, control and profit sharing) in the locations in which it operates, and the profitability of the local offices.

Some firms will wish to restructure, and those most likely to consider restructuring may have:

  • EU operations held within a UK incorporated entity (i.e. an EU branch of UK LLP);
  • EU operations held within a non-UK incorporated entity (i.e. an EU branch of US LLP); and/or,
  • EU incorporated entities with UK solicitors having a level of management and control.

Despite Brexit primarily affecting UK businesses, it is important to note the impact that this may have on US-headquartered law firms. As a result of current regulations, US-headquartered law firms usually operate as a UK LLP, or a branch of the US LLP depending on the EU country in question. However, a by-product of Brexit could see the harmonization of regulation across EU territories so it is possible that neither of these structures will be permissible post-March 2019.

While not certain, to the extent that any grandfathering provisions are introduced there may be benefits in a firm being established in the appropriate country(ies) in the appropriate form before March 2019.

It should be noted that it is possible that a firm may wish to restructure twice: the first time to satisfy the applicable regulations during an interim period to ensure continuity of operations, and once again after a final agreement has been ratified to give a more permanent solution. As we approach the March 2019 deadline there is likely to be an increasing need to have plans in place to manage the uncertainty and satisfy stakeholders.

Potential tax consequences of restructuring?

PwC UK has noted that firms currently considering restructuring their EU operations may consider transferring their EU book of business into a separate EU legal entity. This could involve a demerger of a business within a UK LLP, which poses a number of UK tax considerations, including:

  • whether there has been a cessation of trade in the UK LLP;
  • for UK income tax purposes, whether this could trigger the closing year and opening year rules of taxation to apply to the equity partners (basis period adjustments). Quantification of overlap profits would be required to understand the funding requirements;
  • a UK capital gains tax event could arise on the equity partners upon transfer of partnership assets to a new legal entity;
  • there may be non-UK income tax consequences, for example if an EU office has to move to an accruals basis of accounting; and/or
  • overseas capital gains tax events may also crystallise on the equity partners.

It is clear that restructuring, if necessary, could result in both “dry” tax charges and an acceleration of tax, which may provide challenges around funding for both the firm and the individual partners.