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Can We Negotiate Up From a Lowball Offer?

Posted by Bradley Thayer | Mar 26, 2019 | 0 Comments

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The short answer is: “Yes, maybe”.  As long as the initial lowball isn't so low it is offensive and would leave you—the injured person—“in the hole” financially speaking, there is a chance that productive back and forth negotiation could occur.

 To see an overview of the typical personal injury claim process, click here.

This blog post relates to the “Demanding a settlement” aspect outlined in that process.  To revisit that aspect just briefly:

  • Demanding a settlement: Far more cases are resolved outside of court than in a trial. You and your attorney will come up with a fair settlement demand based on the severity of your injuries and the degree of fault of the other party. If a settlement is not reached, your attorney will help you file a personal injury lawsuit to recover compensation for your injuries.

More specifically, though, we'll discuss here what happens after a demand letter is sent to the at-fault person's insurance company.  Let's say, for example—because this is more frequently the case than not—they make you a lowball offer, initially, to resolve your claims.

The key questions to ask when reviewing a lowball offer are:

  1. Is the lowball offer so low that it is offensive to me (because they are clearly misevaluating the impact the incident had on my body/mind/life)?
  2. Does the amount of compensation for my damages that actually ends up in my pocket feel to me as though I'm been treated fairly?
  3. With some back and forth negotiation, does it seem realistic we could negotiate up to an amount of compensation for my damages (that actually ends up in my pocket) that feels as though I'm been treated fairly?
  4. Understanding that filing a lawsuit and going through the litigation process is a necessary step should I choose not to negotiate nor resolve my claims—am I comfortable with all that that process entails?

We'll take each question separately, but the answers to questions one and three are most pertinent to this particular post:

  1. Is the lowball offer so low that it is offensive to me (because they are clearly misevaluating the impact the incident had on my body/mind/life)?

With respect to whether or not the lowball offer is offensive to you, you obviously will need to consider input from your attorney if you have one regarding your case's potential value, but often times that is an analysis that solely requires you to trust your gut.

An experienced attorney can ensure that all considerations, financial and otherwise, have been outlined for you and crunch numbers to make sure you fully understand the financial implications of the offer and the alternative (filing a lawsuit)—but, often times, when an offer is so low as to be offensive, it is plain as day and does not require a whole lot of analysis.

More often than not, if an offer truly is so low as to be offensive, it just doesn't make sense to even consider accepting it. Sometimes the at-fault person's insurance company will offer you an amount, for example, that is less than the amount of your medical bills—even when liability should be clear and those bills are perfectly reasonable in amount and clearly related to the incident.

Obviously, you are looking to be compensated for the damages you suffered and it is not an option to recover less money than those damages and effectively take the hit of a financial loss on top of all of the other losses you've suffered as a result of the incident.

Unfortunately, though, insurance companies for at-fault persons often try to get away with under-compensating injured persons.

Anyway, where initial lowball offers are too low, back and forth negotiation likely isn't a worthwhile endeavor and you should be having a conversation with your attorney to try and better understand all that pursuing litigation entails (see answer to question four below and link) and about getting a lawsuit filed.

  1. Does the amount of compensation for my damages that actually ends up in my pocket feel to me as though I'm been treated fairly?

To more fully understand those questions outlined above, it is important to understand, generally, how to determine what compensation for damages actually ends up in your pocket when a claim resolves. We discuss that here [Hyperlink to “What Compensation for Damages Ends Up in My Pocket When a Claim Resolves?”].

  1. With some back and forth negotiation, does it seem realistic we could negotiate up to an amount of compensation for my damages (that actually ends up in my pocket) that feels as though I'm been treated fairly?

To answer this question, it requires a situational analysis of the circumstances at hand.

Where, for example under question one above, an initial lowball offer is so low as to be offensive, it is unlikely that back and forth negotiation will do anything to remedy that situation.  It would likely be best at that point to have a conversation with an attorney about what filing a lawsuit and beginning the litigation process would entail.

However, even with an initial lowball offer (as long as it's not offensively low), assuming some negotiations take place and some value is added to that offer, there are can be productive conversations and fair resolutions can occur. Sometimes a back and forth negotiation can bridge fairly considerable gaps between the injured person's valuation of their claims and the at-fault person's insurance company's valuation. 

Many times, it cannot.  But sometimes, it can.

An experienced attorney can take a look at the situation and circumstances and better advise you as to whether or not it makes sense to negotiate under the circumstances you face.

If you feel outmatched in having tried to negotiate directly with the at-fault person's insurance company because you don't have much experience in dealing with these types of claims—you could also benefit by having an experienced attorney advocating for you in attempting to negotiate the potential resolution of your claims.

  1. Understanding that filing a lawsuit and going through the litigation process is a necessary step should I choose not to negotiate nor resolve my claims—am I comfortable with all that that process entails?

To more fully understand this question, it is important to understand, generally, the litigation process and what it entails. Namely, the costs and risks—but, also the potential benefits.  We discuss that that here.

In sum, negotiation may or may not be appropriate or effective depending upon the situation or the circumstances at hand. An experienced attorney can take a look at the situation and circumstances and better advise you as to whether or not it makes sense to negotiate under the circumstances you face, and may even be willing to come on board and advocate for you in attempting to negotiate the potential resolution of your claims.

About the Author

Bradley Thayer

Brad Thayer is a partner at the Schauermann Thayer firm. Brad is licensed in both Oregon and Washington. He has been practicing law since 2015. He was presented the 2018 Rising Star Award by the Clark County Bar Association. Brad's practice focuses on automobile collision, motorcycle, bicycle, pedestrian injury, dog bite, and myriad other types of injury and insurance cases. During his free time, Brad enjoys following the Portland Trail Blazers, playing basketball, going to concerts, and playing the drums. He especially enjoys hiking in the Columbia River Gorge and exploring other Northwest wonders.

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