The insurance companies and their allies—big business and medical associations—have very skillfully manipulated public opinion in the last twenty years. Who hasn’t heard the anecdotes about runaway jury awards? The results of this well-orchestrated campaign are dramatic. The average plaintiff can now expect lower settlement offers, lower arbitration awards and jury verdicts, longer delays before settlement, and more extensive investigations into the claim by the insurance company and its lawyers. This brings with it increased litigation costs.
There was a time when the average car accident or slip-and-fall case settled within two months after the plaintiff completed medical treatment. The insurance company multiplied the number of months of treatment by a set dollar amount and made a very generous settlement offer. A gradual shift away from quick and easy settlements began in the early 1990s. Since then, it has only gotten worse for plaintiffs and their lawyers. I do not expect this to change for the better.
Some claims are exaggerated or even faked. Unfortunately those who pursue their legitimate claims are often looked upon by judges and juries as if they too are exaggerating their injuries. It is as if a personal injury plaintiff walks into court with a presumption of bad intent, and then has to rebut this presumption. As the plaintiff’s lawyer, you also have a target drawn on your back. Your clients’ lives are literally on trial when they become plaintiffs in personal injury claims.
Juries, arbitration panels, judges, and insurance companies intensely scrutinize plaintiffs and their counsel. In almost every case, skillful defense lawyers can find a way to make the plaintiff look bad. No case is perfect. Perhaps the plaintiff has had prior accidents or has an underlying degenerative physical condition that might be at least a partial cause of his or her pain. Many judges, jurors, and arbitrators look for anything to justify a very low award or to find in favor of the defendant outright.
Because of this, plaintiffs’ lawyers have become much more selective about the cases they accept. The lawyer generally pays the legal costs of the case up front and only recovers this initial investment when the case concludes. The lawyer also does not receive any fee until then. This makes it hard to find a lawyer to take on cases that are not strong, both in terms of liability and damages.
These days, only relatively small cases are settled prior to the filing of a lawsuit. Insurance companies investigate cases by subpoenaing records from the plaintiff’s past and by taking many depositions. Since subpoenas and depositions are not available before a lawsuit is filed, insurance companies may make low ball offers pre-lawsuit in all but smaller cases.
Insurance companies hope that subpoenas and depositions will reveal information that will diminish the value of the case. Very frequently their hopes are realized. For example, if a subpoena produces records showing a related pre-existing medical condition, this drives down the settlement value of the case. It makes business sense for an insurer to assume the worst about a plaintiff until an exhaustive investigation satisfies it of the merit of the claim.
It is important to understand these new realities so that you will have a realistic view of your cases. You cannot expect a quick settlement and you cannot expect to work miracles. Unless your clients and your cases are “squeaky clean,” you can expect long legal battles. That is reality, and I do not expect it to change for the better. This book will help you confront these new realities. You need the resources of the Internet, litigation savvy, and the confidence they bring to level the litigation playing field.
Litigation Savvy
The term “litigation” is often misunderstood. Litigation involves far more than just the trial of a legal conflict. It also extends beyond pre-trial activities, such as depositions and the discovery process. Personal injury litigation begins the moment the accident occurs. Every word that is exchanged and every thought that is processed thereafter plays a part in the ultimate event, the settlement or trial of the case. From the very first moment, sophisticated litigants and trial lawyers begin “litigating,” that is, crafting ideas that will work toward a successful resolution of the case. In some cases, relevant events may have occurred long before the injury. For example, if the accident was caused by faulty design, manufacture, or maintenance of a vehicle, the claim will involve learning about those events.
A Note to Non-Lawyers
Earlier versions of this book were written for non-lawyers. It has now been recast for lawyers. It still contains much of what a pro se plaintiff needs to win a personal injury case. “Pro se” means not represented by legal counsel, and is sometimes called “pro per.” This book will also help plaintiffs who have retained legal counsel.
Today’s overworked, burnt-out personal injury lawyer may neglect cases unless clients set themselves apart. Lawyers who once could handle 80 cases are now pressed to handle 30. Insurers fight almost every case with such intensity that cases that used to settle in a matter of months are now litigated for years. This book will help both the personal injury lawyer and the client. If you are a client, it will help you monitor your lawyer’s performance. It will educate you so that you can ask your lawyer intelligent, sophisticated questions. This may trigger renewed interest in you and your case.
It may also let your lawyer know that he or she will be held accountable for the work product. Some lawyers use their monopoly on legal sophistication to the client’s disadvantage. They may persuade a naïve client to take a course of action that is not in the client’s best interest. Perhaps the lawyer is under pressure to make a mortgage payment. Armed with the knowledge this book will provide, you can avoid being taken advantage of by a lawyer whose loyalties are divided.
If your lawyer fails to answer your questions, this book may help you get his or her attention. If your lawyer does not communicate well, you need not wring your hands in anxiety. Set up an appointment and request answers. You will know if you are provided with honest advice or if there is reason for concern. You do not have to rely on blind faith. When you finish this book, you will be ready to fight the battle that is personal injury litigation. Your lawyer should relish your sophistication and your contributions to the team.
I do not recommend that you rely on this book alone. You should not expect it to provide all of the information and resources possessed by an experienced personal injury (PI) lawyer. The confidence you gain can make the difference in your case. Outward confidence is crucial in litigation. The insurance claims representative and their lawyers can sense desperation, fear, and naïveté. They will not hesitate to exploit their advantages over the unprepared litigant.
A Note to Lawyers
My principal reason for writing this book is to reach out to the growing number of attorneys who seek to take on personal injury cases. Attorneys may have an interest in handling personal injury cases for a variety of reasons. First, what lawyer hasn’t dreamed of being approached by a client with a huge personal injury case? Who hasn’t imagined sipping on a cocktail on a beach in the South Pacific, enjoying the rewards of an eight-figure jury verdict? On a more realistic level, many lawyers would simply like to supplement their income by taking on an occasional injury case, especially one that appears fairly simple. This book is for you.
A huge number of recent law grads cannot find jobs in law firms or elsewhere. Many will be tempted to hang out their shingle and take on whatever work comes their way. Personal injury work is still a good way to make money, but, of course, you have to know what you are doing. My book will take you step by step through the litigation process so that you can take on simple cases at first, and proceed soon enough to more complex litigation.
Third, there are lawyers who want to attract personal injury business to refer those cases to a personal injury specialist. This book will teach you how to attract that business, and probably tempt you to hold onto some of those cases for your own practice.
Finally, this book will help even the experienced personal injury lawyer. You never stop growing as an attorney. I learn new things all the time. Each year I look back on my practice and marvel at how much I have grown. Even if you have handled PI cases for many years, I humbly suggest that there are guidelines, philosophical approaches, strategies, and forms in this book that can augment what you are already doing. If you are not growing and improving, you are being passed by others.
The personal injury litigation process can be extremely complicated and emotionally charged. You need accurate information on the many issues involved. I hope this book answers many of those questions and puts to rest many of the anxieties associated with this process.
If you want to fight on an even playing field, use this book as your resource manual. It will serve as an essential guide, a starting point, giving you specific information and showing you where to go to supplement it. I wish you every success in Winning Personal Injury Cases.
Feel free to contact me if you would like to discuss your case. You may reach me at:
VOICE: (610) 642 7676 (215) 563 7088 FAX: (610) 667 7305 EMAIL: EVAN@LEGALAIDMAN.COM WEBSITE: WWW.LEGALAIDMAN.COM
Evan Aidman
March 2015
